State ex rel. Fuller v. Mullinax

• Decision Date: 14 June 1954
• Docket Number: No. 44094,44094
• Citation: 269 S.W.2d 72,364 Mo. 858
• Parties: STATE ex rel. FULLER v. MULLINAX.
• Court: Missouri Supreme Court

Page 72

269 S.W.2d 72

364 Mo. 858

STATE ex rel. FULLER v. MULLINAX.

No. 44094.

Supreme Court of Missouri, En Banc.

June 14, 1954.

Lawrence R. Brown, Robert B. Fizzell, Jr., John J. Fallon, Kansas City (Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel), for relatrix.

Elmore G. Crowe, Alfred M. Mansur, Jefferson City, for respondent. LEEDY, Judge.

This original proceeding in mandamus to compel the admission of a mentally ill individual as a patient in a state mental hospital has been brought as a test case to determine the constitutionality of a recently enacted statute which, although it authorizes the use in certain situations of a revampel and greatly modified form of judicial proceeding, introduces into our jurisprudence other new and radically different procedures governing the hospitalization of the mentally ill. H.B. 355, Laws '53, p. __, Sections 202.780 to 202.870 RSMo 1949, V.A.M.S.

There is no dispute as to the facts. For present purposes the following statement will suffice: Relatrix's adult daughter, Esther Porter, a resident of Jackson County, is a mentally ill individual, as defined in the act. On Oct. 28, 1953, her hospitalization was applied for in writing by relatrix under the so-called 'standard non-judicial procedure' provisions of Sec. 6 of the act. It was accompanied by the required medical certification, and the latter having stated the belief that Esther was likely to injure herself or others if allowed to remain at liberty, was duly endorsed by the Judge of the Probate Court of Jackson County (Hon. Leslie A. Welch), the effect of which endorsement, under sub-section 3 of Sec. 6, was to authorize any health or police officer to take Esther into custody and transport her to State Hospital No. 2, the hospital designated in the application. Respondent, although conceding suitable accommodations were available, refused to admit Esther for the reason that he had been informed that the new act was unconstitutional and void.

The Attorney General had held certain cognate sections, Sections 202.610 and 202.630 RSMo 1949, V.A.M.S., governing admissions to Missouri State School to be unconstitutional as in violation of the due process requirements of the Federal and Missouri Constitutions. For this reason, and others deemed sufficient because of the importance of the question involved, this court permitted the constitutionality of the new act to be raised by respondent, and presented for determination in this proceeding.

The act is patterned after a suggested or tentative draft of legislation dealing with the problem of commitment and hospitalization of the mentally ill, prepared in the Federal Security Agency by the National Institute of Mental Health and the Office of the General Counsel (Public Health Service Pub. No. 51, G. P. O.1952), and herein referred to as the 'draft act,' which embodied the basic principles suggested in 'The Mental Health Programs of the Forty-eight States,' The Council of State Governments' Report to the Governors' Conference (1950). It would appear that Missouri is the first of the states to adopt the model act, although some of its features, in varying forms and degrees, can be identified as having been taken from statutes of other states. In adopting it our own legislature made changes, some of which will be hereinafter noticed. Some idea of the magnitude of the study and effort which has gone into the draft act may be gained by reference to recent law review articles on the subject, such as 'Comments on a Draft Act for the Hospitalization of the Mentally Ill' by Charles W. Whitmore, M.D., (1950-51) 19 Geo.Wash.L.R., 512-530; 'Hospitalization of the Mentally Ill' (which includes a discussion of the draft act, 859-863) by Henry Weihofen, Professor of Law, University of New Mexico, (1951-1952) 50 Mich.L.R., 837-872; 'Hospitalization of the Mentally Ill' by Wm. J. Curran, Assistant Director, Institute of Government, Assistant Research Professor in Public Law and Government, University of North Carolina, (1953) 31 N.C.L.R., 274-298. See, also, 'Constitutionality of Nonjudicial Confinement,' (Note, 1950) 3 Stanford L.R., 109.

As enacted by the 69th General Assembly, the new statute repealed 18 sections of Chapter 202, RSMo1949, in relation to the hospitalization of insane persons, and enacted 28 new sections in lieu thereof. Unlike pre-existing legislation on the subject, private hospitals are included within the purview of the act. In briefest outline, its provisions are these: Sec. 1 defines certain terms as used in the act. Sections 2, 3 and 4 authorize the voluntary hospitalization of a person who is mentally ill (defined by Sec. 1 as 'an individual having a psychiatric or other disease which substantially impairs his mental health'), or who has symptoms of mental illness, and provide procedures for admission, release, etc., of such voluntarily hospitalized persons. Section 5 authorizes, in the case of private hospitals, and enjoins upon public hospitals the duty of, receiving 'for observation, diagnosis, care and treatment' any individual whose admission is applied for under any of four procedures (therein enumerated) for the involuntary hospitalization of the mentally ill, as follows:

1. On medical certification; standard non-judicial procedure;

2. On medical certification; emergency procedure;

3. Without endorsement or medical certification; emergency procedure;

4. On court order; judicial procedure.

The four procedures thus enumerated are respectively developed and detailed in Secs. 6, 7, 8 and 9. Section 10 has to do with the hospitalization by an agency of the United States of a person eligible therefor who has been ordered hospitalized under Sec. 9, jurisdiction being retained in the appropriate court to at any time inquire into the mental condition of the person so hospitalized. Section 11 deals with the matter of transporting mentally ill persons to hospitals and their detention pending removal. Post admission provisions are set out in Secs. 12 to 18. They embrace such matters as notice of hospitalization, medical examination of newly admitted patients, transfer of patients, periodic examination and discharge, convalescent status, right to release and application for judicial determination, and reexamination of order of hospitalization. Sections 19 through 25, together with Sec. 28, are provisions applicable to patients generally, such as the right to humane care and treatment, banning mechanical restraints, right to communication and visitation, exercise of civil rights, making the writ of habeas corpus available to any person so confined, prohibiting the disclosure of certain information, detention pending judicial determination, and imposing penalties for unwarranted hospitalization or denial of rights. Sections 26 and 27 are not to be found in the draft act. They represent purely local adaptions, and are derived, in part, from repealed Secs. 202.120, 202.270, 202.280, and 202.310, RSMo 1949 and V.A.M.S. The effect of Sec. 26(2) will be the subject of later comment.

The four grounds of attack here made upon the constitutionality of the act are as follows: (1) That in violation of Art. III, Sec. 23, Const. of Mo.1945, V.A.M.S., the subject of the bill is not clearly expressed in the title, and the bill embraces more than one subject; (2) that Secs. 6, 7 and 8 permit Esther Porter and other citizens to be deprived of liberty without due process of law, in violation of Art. I, Sec. 10, Const. of Mo.1945, and the Fourteenth Amendment to the Const. of the U. S.; (3) that the act abolishes the right of trial by jury if demanded, in violation or Art. I, Sec. 22(a), Const. of Mo.1945; and (4) that it provides for the seizure and detention of a person under and by virtue of a written document not supported by oath or affirmation, in violation of Art. I, Sec. 15, Const. of Mo.1945.

The three sections challenged under (2) of the paragraph last above have to do with involuntary patients other than those hospitalized on court order under Sec. 9. Such sections are, respectively, as follows:

Section 6

'1. Any individual may be admitted to a hospital upon

'(1) Written application to the hospital by a friend, relative, spouse, or guardian of the individual, a health or public welfare officer, or the head of any institution in which such individual may be, and

'(2) Certification by two designated examiners that they have examined the individual and that they are of the opinion that

'(a) He is mentally ill, and

'(b) Because of his illness is likely to injure himself or others if allowed to remain at liberty, or '(c) Is in need of care or treatment in a mental hospital, and because of his illness, lacks sufficient insight or capacity to make responsible application therefor.

'2. The certification by the designated examiners may be made jointly or separately, and may be based on examination conducted jointly or separately, as the regulations of the division of mental diseases may prescribe. An individual with respect to whom such certification has been issued may not be admitted on the basis thereof at any time after the expiration of fifteen days after the date of examination exclusive of any period of temporary detention authorized under section 11.

'3. Such certification, if it states a belief that the individual is likely to injure himself or others if allowed to remain at liberty, shall, upon indorsement for such purpose by the head of the county welfare department or by a judge of any court of record of the county in which the individual is resident or present, authorize any health or police officer to take the individual into custody and transport him to a hospital designated in the application.'

Section 7

'1. Any individual may be admitted to a hospital upon

'(1) Written application to the hospital by any health or police officer or any other person stating his belief that the individual is likely to cause injury to...