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No. 85-126 I N T E SUPREME COURT OF THE STATE O MONTANA H F 1985 I N THE MATTER O J . & . F I APPEAL FROM: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Y e l l o w s t o n e , The H o n o r a b l e R o b e r t Holmstrom, J u d g e p r e s i d i n g . COUNSEL O F RECORD: For A p p e l l a n t : T e r r y S e i f f e r t , B i l l i n g s , Montana For Respondent: H a r o l d H a n s e r , County A t t o r n e y , B i l l i n g s , Montana S u b m i t t e d on B r i e f s : Decided: May 9, 1985 August 1 5 , 1985 Mr. Justice Fred J. Weber delivered the opinion of the Court. The Yellowstone County Attorney filed a petition in the District Court of the Thirteenth Judicial District alleging that appellant (J.M.) is seriously mentally ill and requesting that he be committed to a mental health facility. After initial detention, examination by a professional person and a hearing at which J.M. was present, the District Court entered its findings and ordered that J.M. be committed to the Montana State Hospital for treatment and evaluation not to exceed 3 months unless extended as provided by law. appeals. J.M. We affirm the District Court. The issues raised by the appellant are: 1. Was there sufficient evidence to support the finding of the District Court that J.M. was suffering from a mental disorder? 2. Was there sufficient evidence to support the finding of the District Court that J.M. is seriously mentally ill within the meaning of S 53-21-102(14), MCA? On February 1, 1985, at the request of J.M.'s cousin, the Yellowstone County Attorney filed a petition in District Court alleging that J.M. was seriously mentally ill and requesting that he be committed to a mental health facility. Initially, the District Court found probable cause to believe J.M. was seriously mentally ill and ordered that he be detained pending a hearing. J.M. After the initial appearance of and his counsel on February 4, the court ordered that an examination by a professional person be conducted at the South Central Montana Regiona 1 Mental Health Center. A hearing was then held on February 7, 1985, following which the court entered its findings of fact and ordered that J.M. be committed to the Montana State Hospital in Warm Springs. Counsel for J.M. emphasizes the testimony on the part of J.M. and others which he finds to be favorable on the issues. Under t h e s e c i r c u m s t a n c e s , we w i l l q u o t e a t some l e n g t h from the f i n d i n g s on consider whether the part of the or not there District is Court, sufficient and then evidence to affirm these findings. The D i s t r i c t C o u r t ' s Statement o f F a c t s dated February 7 , 1985, i n c l u d e s t h e following: " [J.M. ' s ] r e l a t i v e by m a r r i a g e , David Grimmett, t e s t i f i e d t h a t [J.M.] came t o t h e home G r i m m e t t and h i s w i f e own i n L a u r e l , a t any h o u r o f t h e day o r n i g h t , c l a i m i n g t o b e t h e h e i r t o t h e home; t h a t [J.M.] t h r e a t e n e d t o b e a t u p a c o u s i n t o o b t a i n a gun h e b e l i e v e h e s h o u l d h a v e inherited; that [J.M.] had s t a t e d h e wanted a gun t o g o g e t money from a bank i n L i v i n g s t o n ; t h a t [J.M. ] had t r i e d t o goad M r . Grimmett i n t o f i g h t i n g w i t h him; and t h a t [J.M.] wanted G r i m m e t t t o o b t a i n a h o r s e f o r him t o r i d e t o C a l i f o r n i a . An a c q u a i n t a n c e , S h a r o n Summers, t e s t i fied t o hearing [J.M.] several t i m e s c l a i m t h a t b e f o r e h e was d o n e , h e would g e t a gun and s h o o t t h e h e a d s o f f a l o t of people. [J.M.] d e n i e d e v e r y o n e o f t h e s e s t a t e m e n t s , and a d m i t t e d i n response t o t h e c o u r t ' s q u e s t i o n s t h a t h i s u n c l e d i e d a t some unknown t i m e a f t e r 1 9 6 6 , and [J.M.] b e l i e v e [ s i c ] h i s c o u s i n may h a v e p o i s o n e d h i s u n c l e . " I n a d d i t i o n , t h e Statement of F a c t s s t a t e d t h e following with r e g a r d t o t h e e x a m i n a t i o n by t h e h e a l t h p r o f e s s i o n a l : "At the commitment hearing, Scott Schreiber, a C e r t i f i e d Mental Health P r o f e s s i o n a l f o r t h e S t a t e o f Montana t e s t i f i e d t h a t h e had e v a l u a t e d [J.M.] a t t h e B i l l i n g s D e a c o n e s s H o s p i t a l Emergency Room on J a n u a r y 2 5 , 1 9 8 5 , and had a t tempted to conduct an e v a l u a t i o n of [J.M.] a t the jail, pursuant t o t h e c o u r t ' s o r d e r , on F e b r u a r y 6 , 1985. Mr. Schreiber testified that [J.M.] was confused, agitated and intermittently t h r e a t e n i n g i n h i s b e h a v i o r a t t h e emerg e n c y room; t h a t h e was a p p a r e n t l y d e l u s i o n a l i n h i s b e l i e f t h a t h i s u n c l e had been p o i s o n e d by [ J . M . ' s ] c o u s i n ; t h a t h e p a c e d t h e room and g l a r e d a t S c h r e i b e r , a t t e m p t i n g t o s t a r e him down; t h a t h e r e f u s e d t o a n s w e r c e r t a i n q u e s t i o n s , and g e n e r a l l y e x h i b i t e d p o o r judgment i n h i s h o s t i l e and u n c o o p e r a t i v e b e h a v i o r toward Schreiber. S c h r e i b e r ' s t e n t a t i v e diagnos i s was t h a t [J.M.] s u f f e r s from o r g a n i c brain disorder, with subheadings of o r g a n i c d e l u s i o n a l d i s o r d e r and o r g a n i c personality syndrome. Schreiber testified that his further contact with [J.M.] on February 6, 1985, and [J.M.'s] attitude and behavior during Schreiber's attempt to conduct his evaluation, were consistent with Schreiber's diagnosis. Schreiber further testified that, because of [J.M.'s] poor judgment and poor impulse control, and because of his intense and unpredictable feelings, together with his threats toward others, Schreiber believes [J.M.] to represent a threat of imminent injury to others. For that reason, Schreiber recommended long term residentia1 treatment to confirm his diagnosis and provide [J.M.] with treatment . "Scott Schreiber further testified that no local facilities are equipped to require [J.M.] to remain on premises and comply with recommendations regarding medication or treatment; the psychiatric unit at Deaconess Hospital is a shortterm residential facility. Schreiber indicated that closer long-term supervision than that available in Billings is required to protect [J.M. ] and those threatened by him. He recommended that [J.M.] be committed to the Montana State Hospital at Warm Springs for further evaluation and treatment." In addition, the District Court made the following specific findings of fact and conclusions: " [J.M.] is in need of long-term treatment for his condition, in addition to any medical help he may need. The least restrictive environment at which [J.M.] can receive the close supervision, evaluation, and care he needs is the Montana State Hospital at Warm Springs, Montana. "[J.M.] is beyond a reasonable doubt seriously mentally ill as defined in Section 53-21-102, MCA." By its separate Order dated February 7, 1985, the District Court ordered that J.M. be committed and confined in the Montana State Hospital at Warm Springs for a period of treatment and evaluation not to exceed extended as provided by law. 3 months, unless I Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e f i n d i n g o f the District Court that was J.M. s u f f e r i n g from a mental disorder? a r g u e s t h a t t h e m e n t a l h e a l t h examina- Counsel f o r 3.M. t i o n was n o t c o n d u c t e d by a p s y c h i a t r i s t o r a p s y c h o l o g i s t and therefore question. the suggests t h a t Court shall subject to provides t h a t professional a MCA, person to i s defined i n "Professions 1 p e r s o n " examine t h e a p p e l l a n t . S; 5 3 - 2 1 - 1 0 2 ( 1 0 ) , appoint is examination n o t e t h a t S; 5 3 - 2 1 - 1 2 2 ( 2 ) , We District the a s a m e d i c a l d o c t o r o r a p e r s o n who h a s MCA, been c e r t i f i e d by t h e Department o f I n s t i t u t i o n s , a s p r o v i d e d i n S; 53-21-106, MCA. The t e s t i m o n y o f M r . Schreiber e s t a b l i s h e d t h a t he i s a c o u n s e l o r - t h e r a p i s t a t t h e Mental H e a l t h C e n t e r , t h a t h e i s a certified Montana, mental health for the State and t h a t h e h a s been s o c e r t i f i e d f o r 3 y e a r s . o b j e c t i o n s were r a i s e d Mr. professional Schreiber's i n t h e course of qualifications. As a of No the hearing a s t o result, there is n o t h i n g i n t h e r e c o r d which e s t a b l i s h e s a need o r r e q u i r e m e n t f o r e i t h e r a p s y c h i a t r i s t o r psychologist i n t h i s case. Counsel f o r J . M . t h e adequacy o f professional, P.2d 1228, further attempts t o r a i s e doubts a s t o Schreiber a s a health t h e testimony of M r . relying 37 S t . R e p . on Matter 2031. of (Mont. N.B. It is true that 1980), i n N.B. 620 this C o u r t found i n s u f f i c i e n t e v i d e n c e t o a c c e p t t h e t e s t i m o n y on the p a r t of M r . rile concluded Schreiber because o f that an incomplete record. h e was a p r o f e s s i o n a l person of unknown e x p e r t i s e and t h a t h i s t e s t i m o n y was e s s e n t i a l l y i n s u f f i c i e n t t o e s t a b l i s h w i t h r e a s o n a b l e m e d i c a l c e r t a i n t y t h a t N.B. seriously St.Rep. mentally a t 2034-35. ill. N.B., 620 P.2d at 1231-32, was 37 We point out that S 53-21-102(10), MCA (1979), which was - in effect at the time of the hearing in N.B., amended. person has been The amendment allows either a medical doctor or a who has been certified by the Department of Institutions to qualify as the professional person to make the mental examination. that §§ Mr. Schreiber 53-21-102 (10)(b) The record in this case establishes was & certified in 53-21-106, MCA. accordance with We therefore conclude that there is nothing in the record to raise a question as to the qualifications of Mr. Schreiber and his capacity to formulate opinions and recommendations. Counsel for J.M. also implies that because Mr. Schreiber observed J.M. for a limited period of time on two different occasions, his conclusions are suspect. We have reviewed the transcript which sets forth the testimony on the part of all of the witnesses, including both J.M. The record establishes that J.M. and Mr. Schreiber. was uncooperative responding to questions on the part of Mr. Schreiber. result, an extended examination on either of the in As a two occasions would have been of little value because of the unwillingness of J.M. questioning. to respond to any form of extended The transcript shows that in a similar manner, J.M. refused to respond to the questioning of the District Court at the time of his hearing, in that he refused to advise the court whether or not he was married or had children. In addition, J.M. attempts to argue that the professional person should not have relied upon any hearsay reports. We affirm the previous determinations by this Court that a professional person may express his opinion as to the serious mental illness of a party even though the evidence of such things as imminent threat of injury are made known by hearsay evidence and not based upon the professional person's p e r s o n a 1 knowledge. See Matter o f P.2d 451; 406, 4 2 St.Rep. 1 7 1 , 635 P.2d upon which themselves regard M a t t e r o f C.M. relies expert admissible in to his 1985), 698 ( 1 9 8 1 ) , 195 Mont. forming i n evidence. Schreiber specifically Mr. (Mont. T h e r e i s no r e q u i r e m e n t t h a t t h e f a c t s 273. an G.S. conclusions an Rule 703, testified that opinion in Mont.R.Evid. on r e - d i r e c t suffered J.M. be a with mental disorder: "Q. Is t h e r e a n y d o u b t i n y o u r mind t h a t [J.M.] s u f f e r s from a m e n t a l d i s o r d e r ? No, t h e r e ' s n o t . " "A. The health professional stated that his d i a g n o s i s was an o p i n i o n b a s e d on a r e a s o n a b l e m e d i c a l c e r t a i n t y . The s t a t u t o r y p r o v i s i o n s which a r e f o r t h i n 5 53-21-126(4), applicable are set MCA, a s f o l l o w s : "The p r o f e s s i o n a l p e r s o n may t e s t i f y a s t o t h e u l t i m a t e i s s u e o f whether t h e respondent i s s e r i o u s l y mentally ill. This testimony i s i n s u f f i c i e n t unless accompanied by e v i d e n c e from t h e p r o f e s s i o n a l person o r o t h e r s t h a t : " ( a ) t h e r e s p o n d e n t i s s u f f e r i n g from a m e n t a l d i s o r d e r ; and " ( b ) t h e mental d i s o r d e r h a s r e s u l t e d i n self-inflicted injury o r injury t o others o r t h e imminent t h r e a t t h e r e o f o r h a s deprived t h e person a f f l i c t e d of t h e a b i l i t y t o protect h i s l i f e o r health." The evidence in the t e s t i f i e d not only t h a t J.M. record shows that Mr. Schreiber was s e r i o u s l y m e n t a l l y i l l , b u t h e s e t f o r t h t h e d a t a f o r making t h e d i a g n o s i s , t h e c h a r a c - t e r i s t i c s o f t h e p a r t i c u l a r m e n t a l d i s o r d e r which J . M . s t r a t e d and t h e e f f e c t o f t h a t d i s o r d e r upon. J . M . demonW e have c a r e f u l l y reviewed t h e t r a n s c r i p t and c o n c l u d e t h a t t h e r e i s s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e c o n c l u s i o n on t h e p a r t o f t h e D i s t r i c t Court t h a t J.M. s u f f e r e d from a m e n t a l d i s o r d e r . Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e f i n d i n g o f is seriously mentally ill within t h e D i s t r i c t Court t h a t J.M. t h e meaning o f S 5 3 - 2 1 - 1 0 2 ( 1 4 ) , MCA? The d e f i n i t i o n o f " s e r i o u s l y m e n t a l l y i l l " c o n t a i n e d i n B 5 3 - 2 1 - 1 0 2 ( 1 4 ) , MCA, i s a s f o l l o w s : " ' S e r i o u s l y m e n t a l l y i l l ' means s u f f e r i n g from a m e n t a l d i s o r d e r which h a s r e s u l t e d i n self-inflicted injury o r injury t o o t h e r s o r t h e imminent t h r e a t t h e r e o f o r which h a s d e p r i v e d t h e p e r s o n a f f l i c t e d of the a b i l i t y t o protect h i s l i f e o r health. F o r t h i s p u r p o s e , i n j u r y means physical injury. . ." The standard of proof in any hearing on the question s e r i o u s m e n t a l i l l n e s s i s s t a t e d i n S 53-21-126 ( 2 ) , MCA, of as follows: "The s t a n d a r d o f p r o o f i n any h e a r i n g held pursuant t o t h i s s e c t i o n i s proof beyond a r e a s o n a b l e d o u b t w i t h r e s p e c t t o any p h y s i c a l f a c t s o r e v i d e n c e and c l e a r and c o n v i n c i n g e v i d e n c e a s t o a l l o t h e r matters, except t h a t mental d i s o r d e r s s h a l l b e e v i d e n c e d t o a r e a s o n a b l e medical certainty. Imminent t h r e a t o f s e l f inflicted injury o r injury t o others s h a l l b e e v i d e n c e d by o v e r t a c t s , s u f f i c i e n t l y r e c e n t i n time a s t o be m a t e r i a l and relevant a s t o t h e respondent's present condition." The p r e v i o u s l y - q u o t e d Statement o f F a c t s of t h e D i s t r i c t C o u r t p o i n t e d o u t t h a t J.M. had threatened t o b e a t up h i s c o u s i n i n o r d e r t o o b t a i n a gun h e b e l i e v e d h e s h o u l d h a v e inherited; t h a t J.M. s t a t e d h e wanted a gun t o go g e t had t r i e d t o goad M r . money from a b a n k ; t h a t J . M . f i g h t i n g w i t h him; and J . M . Grimrnett i n t o stated several t i m e s t h a t before h e was d o n e , h e would g e t a gun and s h o o t t h e h e a d s o f f a l o t of people. I n a d d i t i o n , t h e Statement of Facts r e f e r s t o t h e f a c t u a l c o n c l u s i o n s on generally exhibited poor uncooperative behavior unpredictable feelings. Schreiber t h a t J.M. the p a r t of Mr. judgment because Mr. in of Schreiber his hostile and J.M.'s intense and had concluded that threats J.M.'s towards others represented a threat of imminent i n j u r y t o o t h e r s . W e p o i n t e d o u t i n t h e M a t t e r o f C.M. ( 1 9 8 1 ) , 195 Mont. 273, t h a t it i s s u f f i c i e n t t o show t h e r e i s a 1 7 1 , 635 P.2d p r e s e n t i n d i c a t i o n o f p r o b a b l e i n j u r y which may o c c u r i n t h e W e note t h a t t h e s t a t u t e i t s e l f provides immediate f u t u r e . t h a t imminent t h r e a t o f i n j u r y t o o t h e r s s h a l l b e e v i d e n c e d by overt acts relevant. sufficiently Certainly, sufficient to recent the fa11 within to be above-mentioned that statutory material and is evidence definition, even though t h e r e i s a n absence o f any proved a t t e m p t t o c a r r y o u t the threats. Our careful substantial review evidence conclusions of to of the support was District Court t h a t J.M. sufficient to findings . W e concur: Justices and there findings the of is fact indicates We support and conclude t h a t t h e holding of the was s e r i o u s l y m e n t a l l y i l l w i t h i n the d e f i n i t i o n o f 5 53-21-102(14), affirmed the t h e D i s t r i c t Court. evidence The record order of MCA. the District Court are Mr. Justice John C. Sheehy, specially concurring: I concur in the result here only because no objection was made in this case to Schreiber's qualificati.on, and because no effort was made before the District Court to obtain for J.M. another person "qualified to perform the requested. examination. " Section 53-21-118 (2), MCA. I do not accept that one not a psychiatrist is qualified to testify that J.M. has a mental disorder to a "reasonable medical certainty." The reasonable medical certainty standard is required by section 53-21-126(2), MCA. Moreover, under Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323, the court must find by "clear and. convincing evidence" that commitment is necessary, commitment offends due process standards. otherwise the When a person not a psychiatrist or equally trained physician testifies to a "reasonable medical certainty" disorder, that untrained competence. that person J.M. has a mental is testifying beyond his Such testimony does not rise to the standard of clear and convincing evidence. J.M. was probably denied due process in this case. The state bureaucrats have engineered the legislature into a sleight-of-hand on the competence of those capable of testifying to a reasonable medical certainty that a mental disorder exists. Thus the legislature has defined a "professional person" as one who is a medical doctor, or one certified prescribed by the Department standards 53-21-102(10), MCA. for such of Institutions certification. with no Section Then the legislature defines "reasonable medical certainty" as certainty iudged by the standards of a professional person. Thus slickly does the law permit a non-doctor to give his judgment of a medical question. doubt law provides the due process issue in commitment proceedings: from a mental disorder? on the most I important Does the respondent suffer

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