In re Herman

• Decision Date: 10 July 1991
• Docket Number: No. 90-815.,90-815.
• Citation: 594 A.2d 533
• Parties: In re Ann HERMAN, Appellant.
• Court: D.C. Court of Appeals

594 A.2d 533

In re Ann HERMAN, Appellant.

No. 90-815.

District of Columbia Court of Appeals.

Argued April 17, 1991.

Decided July 10, 1991.

J. Patrick Anthony, for appellant.

Sheila Kaplan, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel, Charles L. Reischel and Ann O'Regan Keary, Deputy Corp. Counsel, were on the brief, for appellee.

Before ROGERS, Chief Judge, and STEADMAN and FARRELL, Associate Judges.

STEADMAN, Associate Judge:

Appellant was involuntarily admitted to St. Elizabeths Hospital for emergency observation and diagnosis under D.C.Code § 21-521 (1989). The application was signed by a physician who, appellant asserts, did not meet the prerequisites set forth in that section and § 582(b).¹

At a hearing pursuant to § 525, the trial court found that probable cause had been established to believe that "respondent is mentally ill, and, because of that illness, is likely to injure herself unless immediately hospitalized." Accordingly, the court authorized continued emergency observation and diagnosis pursuant to § 524(a)(1), which cannot exceed seven days unless formal hospitalization proceedings are commenced. §§ 21-523, -528. The trial court rejected appellant's argument that the defects in the original application for hospitalization mandated her immediate release, holding that such defects, if any, had been "cured" pursuant to our holding in In re Rosell, 547 A.2d 180 (D.C.1988). We affirm the action of the trial court.

I

Appellant is a sixty-eight-year-old woman with a history of mental illness, including psychiatric hospitalizations over the past thirty years. In February 1990 she arrived in the District of Columbia where she took up residence in the shelter operated by the Community for Creative Nonviolence, located at 2nd and D Streets, N.W. As time went on, the shelter staff became increasingly concerned about appellant's behavior, and invoked the aid of Priscilla Porter, a social worker assigned to work with female residents at the shelter who had become familiar with appellant during her stay at the shelter. Appellant refused to speak with Ms. Porter or any other clinician about her situation or to accept any medical help at the shelter. However, a crisis mental health team from the Emergency Psychiatric Response Division ("EPRD") did make an hour-long assessment of appellant on June 7, 1990, but did not refer her for emergency hospitalization at that time.

On June 8, 1990, Ms. Porter requested that Jannelle Goetcheus, M.D., the medical director of the Health Care for the Homeless clinic, examine appellant at the shelter. Apparently Ms. Porter suggested to Dr. Goetcheus that she remove her stethoscope and not identify herself as a doctor. According to Ms. Porter, who witnessed the interview, appellant did speak briefly with Dr. Goetcheus "for several minutes,² until she appellant realized, I think, that she Dr. Goetcheus was a doctor.... And then she appellant got up and walked away." Dr. Goetcheus then spoke with several staff members. She also discussed the situation with Dr. Keesling, the psychiatrist who is the head of the EPRD, and he advised her to make the necessary application for involuntary hospitalization.

Dr. Goetcheus thereupon filled out the application required by § 521. She erroneously checked the box identifying herself as a "physician employed by the United States or the District of Columbia." She also failed to check the box that related to compliance with the requirements of § 582.³

The form, signed by Dr. Goetcheus, did state, in its printed text, that the applicant has "reason to believe" that the person to be hospitalized "is mentally ill and, because of such illness, is likely to injure self and/or others if not immediately detained." Furthermore, in her own handwriting, Dr. Goetcheus explained the bases for this conclusion: "67 year old homeless woman whose behavior has deteriorated in last 2 months. Noted by shelter staff to defecate in her bed & smear feces on bathroom walls, floor, her clothes and her body. Patient talking this a.m. of White House trying to contact her, the President trying to call her, and her husband is attempting to murder her. Daughter of patient states patient has had multiple psychiatric admissions w/diagnosis of paranoid schizophrenia. Staff has observed patient trying to light cigarette butts, at times almost catching her clothing on fire and concern about mattress catching fire. Patient is danger to herself and others."

On the basis of this application, appellant was taken into custody and presented for admission to St. Elizabeths Hospital. Thereafter, all the steps prescribed by statute were taken within the allotted time periods. Pursuant to § 522, a psychiatrist on duty examined appellant, tentatively diagnosed her as suffering from "atypical psychosis," and concluded that she was "likely to injure herself and/or others unless immediately hospitalized." Pursuant to § 523, the hospital within 48 hours filed a petition with the Superior Court seeking appellant's detention for an additional seven days of emergency observation and diagnosis, which was granted the same day pursuant to § 524.

Appellant then requested a probable cause hearing pursuant to § 525. Although scheduled for the following day, the hearing was postponed for one week because appellant fired her originally appointed attorney. At the outset of the rescheduled hearing, appellant moved to dismiss the case on the basis of the allegedly improper application. The trial court postponed ruling on the motion at that time. The hospital presented three witnesses: appellant's daughter, who recounted appellant's history of mental illness, Ms. Porter, and Robert Brown, M.D., a psychiatrist at the hospital. Appellant, who had interrupted the government witnesses some twenty times with verbal outbursts, testified on her own behalf, as did an investigator for the Public Defender Service.

Following the close of the government's case, the trial court addressed again the question of the assertedly deficient application and found that the subsequent proceedings had cured any such deficiencies. At the end of all proceedings, the court found that there was probable cause to believe that appellant was mentally ill⁴ and that as a consequence, she was a danger to herself if allowed to remain at liberty. Accordingly, he ordered that she continue to be hospitalized for emergency observation and diagnosis pursuant to § 524(a)(1).

Even prior to the probable cause hearing, on June 14, 1990, the hospital had filed a petition for judicial hospitalization pursuant to § 541. As a result of this petition, appellant was entitled to a prompt hearing before the Commission on Mental Health and the other procedures, including a jury trial, provided in cases of hospitalization under court order, §§ 541-551.⁵ However, appellant has chosen not to avail herself of these statutory opportunities for review of her condition,⁶ pending disposition of this expedited appeal from the trial court's refusal to order her release. The appeal is based on the sole ground that the original application was assertedly defective.⁷ We turn to that issue.

II

We deal here with those sections of the D.C. Hospitalization of the Mentally Ill Act (also known as the Ervin Act) dealing with the involuntary emergency hospitalization of persons believed to be dangerously mentally ill. Under § 521, such hospitalization can be initiated only as follows:

An accredited officer or agent of the Department of Human Services of the District of Columbia, or an officer authorized to make arrests in the District of Columbia, or a physician or qualified psychologist of the person in question, who has reason to believe that a person is mentally ill and, because of the illness, is likely to injure himself or others if he is not immediately detained may, without a warrant, take the person into custody, transport him to a public or private hospital, and make application for his admission thereto for purposes of emergency observation and diagnosis. The application shall reveal the circumstances under which the person was taken into custody and the reasons therefor.

Thus, only three categories of individuals—employees of the Department of Human Services, police officers, and physicians and qualified psychologists "of the person in question"—are authorized to make the necessary initial application.

A further limitation on such applications insofar as physicians and qualified psychologists are concerned is found in § 582 (contained in the subchapter on "Miscellaneous Provisions"). Its subsection (b)⁸ is relevant to appellant's argument here:

A petition, application, or certificate of a physician or qualified psychologist may not be considered unless it is based on personal observation and examination of the alleged mentally ill person made by the physician or qualified psychologist not more than 72 hours prior to the making of the petition, application, or certificate. The certificate shall set forth in detail the facts and reasons on which the physician or qualified psychologist based his opinions and conclusions.

In In re Rosell, supra, 547 A.2d at 181, the application for Rosell's commitment had been made by a physician, but one who was found by the trial court not to be in fact the physician "of the person" of Rosell, as required by § 521. Nonetheless, we held that the trial court correctly ruled that continued detention of Rosell was justified because the government had met its burden of showing at the hearing that probable cause existed to believe that Rosell was mentally ill and was likely to injure herself if not detained. In so holding, we found controlling our prior decisions in Williams v. Meredith, 407 A.2d 569 (D.C.1979), and In re Morris, 482 A.2d 369 (D.C.1984).

In Williams, the physician also had not qualified as a physician "of the person." Rosell attempted to distinguish Williams on the ground that in Willia...