HomeMy WebLinkAbout94-1353 Civil IN RE: : IN THE COURT OF COMMON PLEAS OF
DAVID J. BARBAGELLO : CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: 94-1353 CIVIL TERM
OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J.
This case arises out of a petition for involuntary treatment
under Section 304 of the Mental Health Procedures Act.~ Following
a hearing conducted by a mental health review officer,2 the
patient, David J. Barbagello, petitioned for review by the Court of
Common Pleas.3 A hearing was held by the Court on April 8, 1994,
at the conclusion of which this Order was issued:
AND NOW, this 8th day of April, 1994,
upon consideration of the Petition For Appeal
From Involuntary Commitment filed on behalf of
David J. Barbagello, and following a hearing,
the Court finds on the basis of clear and
convincing evidence that the Petitioner is
severely mentally disabled and in need of
treatment, and it is directed that he be
committed for involuntary treatment for a
period not to exceed 90 days to Eastern State
Hospital. It is specifically found that the
Petitioner did, within a period of 30 days
preceding the initial petition resulting in
his commitment up to the present time, commit
acts which constituted a clear and present
danger of harm to others and to himself, and
that these acts were the result of a mental
illness. The Cumberland County Sheriff is
~ Act of July 9, 1976, P.L. 817, S304, as amended, 50 P.S.
S7304 (1994 Supp.) (court-ordered involuntary treatment not to
exceed ninety days).
2 See id., ~304(e)(6), as amended, 50 P.S. ~7304(e)(6) (1994
Supp.).
~ See id., ~109(b), as amended, 50 P.S. ~7109(b) (1994
Supp.).
94-1353 CIVIL TERM
authorized to return the Petitioner to Holy
Spirit Hospital pending his return to Eastern
State Hospital.4
On April 14, 1994, the patient filed a notice of appeal to the
Superior Court of Pennsylvania from the Order, having requested and
received permission to proceed in forma pauperis from this Court.s
In a statement of matters complained of on appeal, the patient
challenged the sufficiency of the evidence at the hearing to show
that he posed a clear and present danger of harm to others or to
himself.6
According to a motion to quash the appeal filed with the
Superior Court by the Appellee, the patient absconded a few days
after the Order from which he appeals was issued, and he remains at
large.7 This Opinion in support of the Order is written pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a).
Statement of Facts
David J. Barbagello is a sixteen-year-old juvenile.8 He has
4 Hearing, April 8, 1994, N.T. 50 (hereinafter N.T. __).
s See Motion for Leave To Appeal in Forma Pauperis; Order of
Court, April 14, 1994.
6 Statement of Matters Complained of on Appeal, filed April
18, 1994. This statement was filed pursuant to an order issued
under Pennsylvania Rule of Appellate Procedure 1925(b). Order of
Court, April 18, 1994.
? Motion To Quash Appeal, In re David J. Barbagello, No. 215
HBG 1994 (Pennsylvania Superior Court).
8 N.T. 43. He was born on June 5, 1977. Id.
2
94-1353 CIVIL TERM
been psychiatrically diagnosed as suffering from mental illness in
the form of a conduct disorder, characterized by impulsivity,
difficulty with attention span and lack of insight,9 and attention
deficit hyperactivity disorder,~0 and from polysubstance
dependency.~ As a result of his condition, he has exhibited a
chronic course of conduct for the past eight to ten years of
"impulsive behavior, running away, confrontational behavior,
truancy from school," and similar acts, according to his treating
psychiatrist.~2 With respect to his prognosis, his psychiatrist
testified as follows:
Prognosis for this particular category of
psychiatric illnesses is not a good one.
Conduct disorder frequently blends into a
diagnosis of antisocial personality disorder,
the chief difference being one of age. We
don't make the diagnosis for antisocial
personality disorder prior to age 18 years.
One of the characteristics that we look for in
making that diagnosis, in fact, is a history
of conduct disorder behaviors.
The behaviors are similar for one
diagnosis to the other. It's largely a
question of when they occur. Basically they
9 N.T. 6.
~0 N.T. 19.
~ N.T. 18-19. Alcoholism and drug dependency are not, by
themselves, considered mental illnesses under the Mental Health
Procedures Act. Act of July 9, 1976, P.L. 817, §102, as amended,
50 P.S. S7102 (1994 Supp.). However, the presence of these
conditions does not preclude mental illness. 55 Pa. Admin. Code
S5100.2.
n N.T. 6.
94-1353 CIVIL TERM
involve the lack of concern for other people's
rights and inability to cope with stress,
impulsivity, agitation. There are associated
symptoms or associated behaviors of drug and
alcohol abuse of which both David has a
history of, history of criminal involvement,
involvement in verbally and physically
aggressive activities, also of which David has
a history of. So what I would look for in the
future would be basically more of these
behaviors.~3
Two years ago, the patient was determined by the staff of the
base service unit under contract with the Cumberland County mental
health/mental retardation agency at Holy Spirit Hospital Community
Mental Health Center to be in serious need of mental health
treatment.TM He was hospitalized at the Meadows Psychiatric
Facility in Centre County, Pennsylvania, from January 17, 1992, to
March 13, 1992.
Then, for approximately a year and a half he was a patient at
Eastern State School and Hospital.~5 This institution was described
by the supervisor of the aforesaid base unit in Cumberland County
as "the state hospital that we refer to in this area in
Pennsylvania that treats seriously and persistently ill
adolescents.-~6
He was discharged from Eastern State in approximately October
N.T. 8-9.
N.T. 37.
N.T. 38.
Id.
94-1353 CIVIL TERM
of 1993~? under the following circumstances, according to the
supervisor:
He was discharged - well, the discharge
was a bit complicated. While David was at
Eastern, he presented very -- to be a very
difficult case diagnostically and in terms of
responding to treatment. They attempted to
treat him with Lithium at one point. And he
refused to take medications and refused to go
along with the treatment plan, so they tried
other types of approaches, but basically they
were at a loss.~8
It appears that, in view of the difficulties, Eastern found it
necessary to ask Cumberland County to investigate the possibility
of making other arrangements for the patient's treatment.~9 As a
consequence, in October of 1993 the base service unit managed to
secure his admission to Hoffman Homes for Youth, a mental health
residential treatment facility.20 While on passes from the Hoffman
facility, the juvenile became involved with a neo-Nazi organization
and abandoned the institution against the advice of his doctor and
the wishes of his parents.2~
Crisis intervention at Holy Spirit Hospital subsequently found
it necessary to intervene with an emergency placement of the
Id.
Id.
Id.
20 N.T. 39.
Id.
94-1353 CIVIL TERM
patient at Cenacle Shelter in Dauphin County, Pennsylvania.22
However, he eloped from this placement within a few days and was
taken to the home of one of the neo-Nazis.23
During a period of extreme cold in January, 1994, the patient
was found by police in York County, Pennsylvania,24 was transported
to the York Hospital, and was admitted to the hospital's mental
health unit.25 York County authorities transferred him to
Cumberland County Children and Youth Services, and it appears that
he was adjudicated a dependent child by this Court and committed to
United Charities Home in West Hazelton, Pennsylvania.26 He entered
that facility on February 18, 1994, and escaped the next day.27
On February 22, 1994, an incident in Berks County in which the
patient started a fire in the basement of an occupied apartment
building28 led to his apprehension by police officers of West
Reading Police Department and charges of arson, recklessly
N.T. 40.
Id.
He had been ejected from the neo-Nazi's home. N.T. 41.
N.T. 41.
See N.T. 42, 44.
N.T. 26, 44.
N.T. 6, 26-27, 33, 44.
6
94-1353 CIVIL TERM
endangering and criminal conspiracy.29 He was returned to
Cumberland County and on March 16, 1994, an application for
emergency involuntary treatment was made, resulting in his
admittance to Holy Spirit Hospital.30 The involuntary treatment was
extended for up to twenty days pursuant to an application on March
18, 1994,3~ and the petition for court-ordered involuntary treatment
not in excess of ninety days, which resulted in the Order now being
appealed to the Superior Court, was filed on April 1, 1994.32
A case worker at Cumberland County Children and Youth
Services, Edward B. Rouse, III, testified that most recently the
agency contacted over twenty foster agencies and fourteen different
psychiatric facilities "to see if any of them would admit David,
and none of them would.-33 The only facility which he found willing
to accept him was United Children's Home of York - an entity
29 N.T. 44. The charges were limited subsequently to
recklessly endangering. N.T. 27. The juvenile delinquency
proceedings were continued in view of the present mental health
proceedings. Id. Under the Juvenile Act, the status of being
committable to an institution for the mentally ill would preclude
the transfer of a juvenile's case to criminal court. Act of July
9, 1976, P.L. 586, S2, 42 Pa. C.S. §6355(a)(4)(iii)(B).
30 N.T. 27, 47; see Act of July 9, 1976, P.L. 817, ~302, as
amended, 50 P.S. ~7302 (1994 Supp.).
3~ N.T. 22; see Act of July 9, 1976, P.L. 817, ~303, as
amended, 50 P.S. ~7303 (1994 Supp.).
32 N.T. 20; see Act of July 9, 1976, P.L. 817, S304, as
amended, 50 P.S. ~7304 (1994 Supp.).
33 N.T. 27.
7
94-1353 CIVIL TERM
providing no mental health treatment, having a thirty-day limit
upon a juvenile's residency, and from which it was said the child
previously absconded. 34
The juvenile eloped for a period from Holy Spirit Hospital
during the course of his involuntary treatment pursuant to the most
recent series of petitions.3s In addition, on or about April 6,
1994, he confided to Mr. Rouse and others that in the past he had
strangled his mother, had shot his brother in the hand, and had set
fire to his house.3~ The patient's father testified that at the
present time he would not be welcome back in the home.37
Based upon the patient's history, diagnosis and prognosis, his
psychiatrist expressed the opinion that he was severely mentally
disabled, as that term is defined in Section 301(a) of the Mental
Health Procedures Act.39 The psychiatrist also expressed the
opinion that he was in need of treatment in the form of a "long-
term supportive or controlled environment, which in this case is
limited to long-term in-patient facilities, specifically Eastern
34 N.T. 28.
3s N.T. 42-43. As noted previously, it is alleged that he is
presently at large again. See text accompanying note 7 supra.
3~ N.T. 30.
37 N.T. 45.
38 N.T. 9.
39 N.T. 19.
8
94-1353 CIVIL TERM
State."4° He was asked whether, "if [the patient] were released
from a controlled supervised treatment setting, he would constitute
a threat to himself or to others," and responded as follows:
Insofar as he has a better than eight-
year history, I think, of age and behaviors
that do constitute threatening behavior and
insofar as I have no reason to believe he
would change his style of behavior, I would
have to say that that would be correct, yes, I
would expect him to begin engaging in those
behaviors again.4~
The psychiatrist also testified that the patient's reduction in
capacity to the point that he presented a clear and present danger
to himself or others was the result of his mental illness.42
On cross-examination, when asked whether he had any evidence
that the patient caused actual harm to others, attempted suicide or
committed an act of self-mutilation within sixty days of April 8,
1994, he said that he did not.43 The following exchange also
occurred on cross-examination:
Q Is it your testimony that it is a
reasonable probability that if he were
released that death would occur - death or
serious bodily injury would occur within 30
days?
A I would say that based upon his past
history of impulsivity and conflict with
40 N.T. 9.
N.T. 9.
N.T. 19-20.
N.T. 21.
94-1353 CIVIL TERM
others, seeking out racial confrontations,
elopement, and so forth, that there is a
strong possibility he would engage in these
behaviors again so that that danger would be
something I would foresee.
Q A reasonable probability that he is
going to die or be seriously bodily injured in
30 days?
A That's difficult to forecast.
Q Then your answer is no?
A My answer is no.44
At the hearing, the juvenile did not testify, nor did he
present any other witnesses or evidence on his behalf.4s In closing
argument, his counsel contended that his client did not have a
serious mental illness. The counsel pointed out that "[m]ental
health commitment is not for, well, we can't think of where else to
put him so let's stick him in the hospital," and he stated, "That's
what they did in this case.-46 Counsel for the mental health party
pursuing an order for involuntary treatment pointed to the
patient's diagnosis, his history, and the psychiatric opinions
expressed at the hearing, concluding, "I think we have met the
requirements of the act, and
we're asking that the ... involuntary commitment be granted.-4~
44 N.T. 21-22.
4~ N.T. 46. There was no requirement that he do so. See text
accompanying note 70 infra.
46 N.T. 48.
47 N.T. 49.
10
94-1353 CIVIL TERM
~tatement of the Law
"Under the Mental Health Procedures Act, '(i)nvoluntary
treatment (for mental illness) ... funded in whole or in part by
public moneys shall be available at (certain specified types of
treatment facilities).,48 "Any person , [including a juvenile],49
~8 Act of July 9, 1976, P.L. 817, ~105, 50 P.S. ~7105 ([1994
Supp.]). In pertinent part, the act provides as follows:
Involuntary treatment ... funded in whole
or in part by public moneys shall be available
at a facility approved for such purposes by
the county administrator (who shall be the
County Mental Health and Mental Retardation
Administrator of a county or counties, or his
duly authorized delegate), or by the
Department of Public Welfare .... Approval of
facilities shall be made by the appropriate
authority which can be the (Department of
Public Welfare) pursuant to regulations
adopted by the department. Treatment may be
ordered at the Veterans Administration or
other agency of the United States upon receipt
of a certificate that the person is eligible
for such hospitalization or treatment and that
there is available space for his care ....
~9 A person who is subject to a petition under the Juvenile
Act, Act of July 9, 1976, P.L. 586, ~2, as amended, 42 Pa. C.S.
~6301 et seq., may be subjected under that act by the court to
mental examination [id. ~6339(b)] and is within the class of
persons who may be involuntarily committed under the Mental Health
Procedures Act. Act of July 9, 1976, P.L. 817, ~401(c), 50 P.S.
~7401(c) ([1994] Supp.); see also Act of July 9, 1976, P.L. 586,
~2, 42 Pa. C.S. ~6356 (provision of Juvenile Act authorizing
proceedings pursuant to Mental Health Procedures Act where
appropriate). "If such a person is in detention ..., the court
having jurisdiction under the Juvenile Act shall determine whether
such security conditions shall continue to be enforced during any
period of involuntary treatment and to whom the person should be
released thereafter." Id.
In connection with juvenile proceedings, mental capacity is a
factor to be considered in a determination of whether a juvenile
case should be transferred to criminal court [Act of July 9, 1976,
P.L. 586, §2, 42 Pa. C.S. ~6355(a)(4)(iii)(A)], and the status of
being committable to an institution for the mentally ill precludes
transfer of a juvenile's case to criminal court [Act of July 9,
1976, P.L. 586, ~2, 42 Pa. C.S. ~6355(a)(4)(iii)(B)].
11
94-1353 CIVIL TERM
who is mentally ills0 to a degree describable as severely mentally
disabled and who is in need of treatment may be subjected to
involuntary examination and treatments~ at such a facility." Oler,
Pennsylvania Criminal Law: Defendant's Mental State S4.4, at 57-58
(1986).
The Mental Health Procedures Act defines severe mental
disability in the following terms:
A person is severely mentally disabled when,
as a result of mental illness, his capacity to
exercise self-control, judgment and discretion
in the conduct of his affairs and social
relations or to care for his own personal
needs is so lessened that he poses a clear and
present danger of harm to others or to
himself.
Act of July 9, 1976, P.L. 817, S301(a), 50 P.S. ~7031(a) (1994
Supp.).
With respect to clear and present danger, the Act further
provides, in pertinent part, as follows:
s0 Mental illness is not specifically defined under the act.
Mental retardation, senility, alcoholism, and drug dependency are
not, by themselves, considered mental illnesses under the act. Act
of July 9, 1976, P.L. 817, ~102 as amended, 50 P.S ~7102 ([1994]
Supp.). ' ·
In regulations promulgated pursuant to the act, the
Pennsylvania Department of Public Welfare has defined mental
illness as "[t]hose disorders listed in the applicable APA
[American Psychiatric Association] Diagnostic and Statistical
Manual; provided, however, that mental retardation, alcoholism,
drug dependence and senility do not, and of themselves, constitute
mental illness. The presence of these conditions, however, does
not preclude mental illness." 55 Pa. Admin. Code ~5100.2.
~ Act of July 9, 1976, P.L. 817, S301(a), 50 P.S. ~7301(a)
([1994] Supp.) (general provision providing for subjection of
person severely mentally disabled and in need of immediate
treatment to involuntary emergency examination and treatment), Act
of July 9, 1976, P.L. 817, §304(a), 50 P.S. ~7304(a) ([1994] Supp.)
(general provision providing for subjection of person severely
mentally disabled and in need of treatment to court-ordered
involuntary treatment.
12
94-1353 CIVIL TERM
Clear and present danger to others shall
be shown by establishing that within the past
30 days the person has inflicted or attempted
to inflict serious bodily harm on another and
that there is a reasonable probability that
such conduct will be repeated .... For the
purpose of this section, a clear and present
danger of harm to others may be demonstrated
by proof that the person has made threats of
harm and has committed acts in furtherance of
the threat to commit harm.
· ..Clear and present danger to [oneself]
shall be shown by establishing that within the
past 30 days:
(i) the person has acted in
such manner as to evidence that he
would be unable, without care,
supervision and the continued
assistance of others, to satisfy his
need for nourishment, personal or
medical care, shelter, or self-
protection and safety, and that
there is a reasonable probability
that death, serious bodily injury or
serious physical debilitation would
ensue within 30 days unless adequate
treatment were afforded under this
act; or
(ii) the person has attempted
suicide and that there is the
reasonable probability of suicide
unless adequate treatment is
afforded under this act. For the
purposes of this subsection, a clear
and present danger may be
demonstrated by the proof that the
person has made threats to commit
suicide and has committed acts which
are in furtherance of the threat to
commit suicide; or
(iii) the person has
substantially mutilated himself or
attempted to mutilate himself
substantially and that there is the
reasonable probability of mutilation
unless adequate treatment is
afforded under this Act. For the
purposes of this subsection, a clear
and present danger shall be
established by proof that the person
has made threats to commit
13
94-1353 CIVIL TERM
mutilation and has committed acts
which are in furtherance of the
threat to commit mutilation.
Act of July 9, 1976, P.L. 817, ~301(b), as amended, 50 P.S.
~7301(b) (1994 Supp.).
Where the subject of a petition for involuntary treatment is
already under commitment, the hearing proof need not show a
repetition of the conduct precipitating the initial commitment. It
is sufficient that it establishes the occurrence of the initially-
required conduct and a continuation of the condition producing a
clear and present danger to the subject or others. Act of July 9,
1976, P.L. 817, ~304(a)(2), 50 P.S. ~7304(a)(2) (1994 Supp.); 55
Pa. Admin. Code ~5100.88(b)(4).
"Emergency involuntary commitment for up to 120 hours is
available without court involvement at the instance of a physician
or county administrator,S2
among others,s3 for one in need of
~2 I.e., the county mental health and mental retardation
administrator. See Act of July 9, 1976, P.L. 817, §105, 50 P S.
~7105 ([1994] Supp.). ·
s3 The Mental Health Procedures Act provides as follows:
Emergency examination may be undertaken
at a treatment facility upon the certification
of a physician stating the need for such
examination; or upon a warrant issued by the
county administrator authorizing such
examination; or without a warrant upon
application by a physician or other authorized
person who has personally observed conduct
showing the need for such an examination.
Act of July 9, 1976, P.L. 817, ~302(a), 50 P.S ~7302(a) ([1994]
Supp.). -
14
94-1353 CIVIL TERM
immediate treatment;S4 seizure of the individual for purposes of
examination at a facility may be effected with or without a
warrant,ss The 120-hour period may be extended for up to twenty
days~6 upon (a) an application filed by the treatment facility with
~4 Act of July 9, 1976, P.L. 817, S302, as amended, 50 P.S.
S7302 ([1994] Supp.) (section of act applicable to 120-hour
emergency examination and treatment; see 55 Pa. Admin. Code
§5100.85(1) (factors to be considered in determining whether
emergency commitment is required).
~ Section 302 of the Mental Health Procedures Act provides,
in pertinent part, as follows:
(1) Warrant for Emergency Examination.-
Upon written application by a physician or
other responsible party setting forth facts
constituting reasonable grounds to believe a
person is severely mentally disabled and in
need of immediate treatment, the county
administrator may issue a warrant requiring a
person authorized by him, or any peace
officer, to take such person to a facility
specified in the warrant.
(2) Emergency Examination Without a
Warrant.-Upon personal observation of the
conduct of a person constituting reasonable
grounds to believe that he is severely
mentally disabled and in need of immediate
treatment, any physician or peace officer, or
anyone authorized by the county administrator
may take such person to an approved facility
for an emergency examination. Upon arrival,
he shall make a written statement setting
forth the grounds for believing the person to
be in need of such examination.
Act of July 9, 1976, P.L. 817, ~302(a)(1), (2), 50 P.S.
~7302(a)(1), (2) ([1994] Supp.).; see 55 Pa. Admin. Code ~5100.86
(regulations respecting emergency 120-hour commitment; provisions
for forms).
~6 Act of July 9, 1976, P.L. 817, S303(h), 50 P S. ~7303(h)
([1994] Supp.). ·
15
94-1353 CIVIL TERM
the court of common pleas,s? (b) appointment of counsel in the case
of an indigent,S8 (c) an informal hearing within twenty-four hours
of the application,s filing, conducted by the court or a mental
health review officer,S9 and (d) a certification by the court or
officer for extended involuntary treatment.~8 A certification by
a mental health review officer is reviewable by the court upon
petition.~
"Involuntary commitment for a period generally not more than
s? Act of July 9, 1976, P.L. 817, S303(a), as amended, 50 P.S.
S7303(a) ([1994] Supp.); see 55 Pa. Admin. Code ~5100.84(c)
(regulation providing for application to court or mental health
review officer for extended involuntary emergency treatment).
s. Act of July 9, 1976, P.L. 817, ~303(b), 50 P.S §7303(b)
([1994] Supp.). ·
s9 Act of July 9, 1976, P.L. 817, ~303(c), as amended, 50 P.S.
S7303(c) ([1994] Supp.); see 55 Pa. Admin. Code 5100.87(d)
(regulation respecting informal conference procedure).
~0 Act of July 9, 1976, P.L. 817, ~303(c), as amended, 50 P.S.
~7303(c) ([1994] Supp.). (requirement of certification); Act of
July 9, 1976, P.L. 817, ~303(d), 50 P.S. ~7303(d) ([1994] Supp.)
(contents of certification); Act of July 9, 1976, P.L. 817,
S303(f), 50 P.S. ~7303(f) ([1994] Supp.) (effect of certification);
see 55 Pa. Admin. Code ~5100.87(e) (regulation respecting
certification for extended emergency involuntary treatment).
6~ Act of July 9, 1976, P.L. 817, ~303(g), 50 P.S. ~7303(g)
([1994] Supp.) (right of individual to review within 72 hours of
filing petition).
16
94-1353 CIVIL TERM
ninety days~2 is available upon petition to the court~3 for a person
severely mentally disabled and in need of treatment.~4 Such a
commitment is subject to the following conditions precedent: (a) a
determination that the petition sets forth reasonable cause to
believe that the person is severely mentally disabled and in need
of treatment,~s (b) appointment of an attorney for the subject in
~2 Commitment may be up to one year where one's severe mental
disability is premised upon murder, voluntary manslaughter,
aggravated assault, kidnapping, forcible rape, forcible involuntary
deviate sexual intercourse, or arson, and an adjudication of
incompetency has occurred. Act of July 9, 1976, P.L. 817,
S304(g)(1), (2), as amended, 50 P.S. S7304(g)(1) (2) ([1994]
Supp.). ,
~3 Where the individual is already being involuntarily treated
on a severely mentally disabled basis, the petition may be filed by
the county's mental health and mental retardation administrator or
the director of the treatment facility. Act of July 9, 1976, P.L.
817, ~304(b)(1), as amended, 50 P.S. ~7304(b)(1) ([1994] Supp.);
see 55 Pa. Admin. Code §5100.88(b) (regulation respecting
initiation of court-ordered involuntary treatment for persons
already subject to involuntary treatment).
Where the allegedly disabled person is not already being
involuntarily treated as severely mentally disabled, the petition
may be filed by "any responsible party." Act of July 9, 1976, P.L.
817, ~304(c)(1), 50 P.S. S7304(c)(1) ([1994] Supp.); see 55 Pa.
Admin. Code ~5100.88(c) (regulation respecting initiation of court-
ordered involuntary treatment for persons not already subject to
involuntary treatment).
64 Act of July 9, 1976, P.L. 817, ~304, as amended, 50 P.S.
~7304 ([1994] Supp.); see 55 Pa. Admin. Code ~5100.88 (regulations
respecting court-ordered involuntary treatment not to exceed 90
days).
Regulations and case law provide that a petition under the
section of the Mental Health Procedures Act providing for 90-day
court-ordered commitments is not proper with respect to an
individual whose present treatment is under the section providing
for a 120-hour emergency commitment; it is the rule that the 20-day
extension of the emergency commitment is a necessary intervening
procedure. 55 Pa. Admin. Code S5100.88(a); In re Ann S., 279 Pa.
Super. 618, 421A.2d 370 (1980).
~s Act of July 9, 1976, P.L. 817, ~304(c)(3) 50 P S. ~7304
(c)(3) ([1994 Supp.]). ' '
17
94-1353 CIVIL TERM
the case of indigency,66 (c) three-day notice to the subject of a
hearing on the petition,67 (d) availability of expert assistance to
the subject,~8 (e) availability of psychiatric examination to the
subject,~9 (f) a hearing conducted by a judge or mental health
review officer, at which the subject may remain silent, may cross-
examine witnesses, and may present evidence?0 and at which the rules
of evidence applicable to other proceedings which may result in
extended deprivation of liberty apply,7~ (g) a finding, upon clear
and convincing evidence,72 within forty-eight hours of the close of
evidence,73 that the subject is severely mentally disabled and in
need of treatment,74 and (h) an order by the judge75 directing
~ Act of July 9, 1976, P.L. 817, S304(c)(3) 50 P S.
§7304(c)(3) ([1994] Supp.); ' ·
67 Act of July 9, 1976, P.L. 817, ~304(c)(4), 50 P.S.
§7304(c)(4) ([1994] Supp.); see 55 Pa. Admin. Code ~5100.88(c)(3)
(regulation respecting notice).
~8 Act of July 9, 1976, P.L. 817, ~304(d), 50 P S. S7304(d)
([1994] Supp.). ·
~9 Act of July 9, 1976, P.L. 817, ~304(c)(5), 50 P.S
~7304(c)(5) ([1994] Supp.). ·
70 Act of July 9, 1976, P.L. 817, ~304(e), 50 P.S ~7304(e)
([1994] Supp.); ·
7~ In re Hutchinson, 279 Pa. Super. 401, 421 A.2d 261 (1980)
(hearsay held inadmissible in hearing under Section 304 of Mental
Health Procedures Act, aff'd, 500 Pa. 152, 454 A.2d 1008 (1982).
72 Act of July 9, 1976, P.L. 817, S304(f), 50 P.S. ~7304(f)
([1994] Supp.); see In re Green, 273 Pa. Super. 397, 417 A.2d 708
(1980) (clear and convincing evidence standard recognized); In re
Hutchinson, 279 Pa. Super. 401, 421 A.2d 261 (1980) aff'd, 500 Pa.
152, 454 A.2d 1008 (1982). '
73 Act of July 9, 1976, P.L. 817, ~304(e)(7) 50 P.S.
~7304(e)(7) ([1994] Supp.). '
74 Act of July 9, 1976, P.L. 817, §304(f) 50 P.S S7304(f)
([1994] Supp.). , -
18
94-1353 CIVIL TERM
treatment."76 Oler, Pennsylvania Criminal Law: Defendant's Mental
State S4.4, at 58-65 (1986).
ADDlication of Law to Facts
In the present case, an application for emergency involuntary
treatment with respect to the juvenile was filed on March 16, 1994,
and he remained, pursuant to a 20-day extension, in involuntary
treatment as of April 1, 1994, when the petition for a 90-day
commitment was filed - said petition being the document resulting
in the Order at issue. It was thus incumbent upon the party
seeking the continuation of involuntary treatment to prove, by
clear and convincing evidence, the occurrence of conduct on the
part of the juvenile within a period of thirty days preceding March
16, 1994, indicative of a clear and present danger of harm to
himself or others, and to similarly prove the other elements
requisite for such a disposition. The Court concluded that the
party had done so.
First, psychiatric testimony convincingly established that the
patient suffers from a serious mental illness, with, at best, an
unpromising prognosis. Second, the evidence further established
that his illness has resulted in a lack of capacity to exercise
self control, judgment and discretion in the conduct of his affairs
and social relations to such a degree that the second half of his
life has been characterized by disruption, instability, residential
treatment programs, long-term hospitalization, and the other
A decision by a mental health review officer is not a final
order. In re Bishop, 282 Pa. Super. 67, 422 A.2d 831 (1980).
Act of July 9, 1976, P.L. 817, S304(f) as amended, 50 P.S.
~7304(f) ([1994] Supp.). '
19
94-1353 CIVIL TERM
aspects of his history recounted above.
Third, the evidence further showed that within thirty days of
the filing of the most recent initial commitment application this
sixteen-year-old abandoned a court-ordered placement facility in
the middle of winter and was shortly thereafter apprehended on
charges of arson, recklessly endangering and criminal conspiracy in
connection with a fire he started in an occupied apartment
building; in this conduct, he continued a long pattern of
irrational and destructive behavior incident to his illness.
Following his most recent hospitalization, he bragged about
strangling his mother, shooting his brother and setting fire to his
house; in this boast, he indicated that his condition is not
ameliorating.
It was not necessary for the party seeking an order for
involuntary treatment to show that within the past thirty days
actual bodily injury had been caused to others, in order to prevail
on the issue of a clear and present danger to other persons. Nor
was it necessary to show an act of self-mutilation within such
period, attempted suicide within such period, or the reasonable
prospect of death or serious bodily injury within thirty days in
the absence of treatment, in order to prevail on the issue of a
clear and present danger to the child. It was enough that an
"intent" to cause such harm to others was fairly inferable from the
evidence, or that a reasonable probability of the occurrence of
"serious physical debilitation., without intervention could be
properly deduced.
Finally, the psychiatric and other testimony demonstrated that
the patient was in need of treatment as a result of his mental
20
94-1353 CIVIL TERM
illness, and that Eastern State School and Hospital was the only
available source of such care at this time. In this regard, the
efforts of Cumberland County's mental health establishment and
Children and Youth Services personnel to assist the
juvenile/patient recently, and over the years, appears to the Court
to have been patient, professional and exhaustive.
For the foregoing reasons, the Court issued the Order dated
April 8, 1994, authorizing appellant's involuntary treatment at
Eastern State School and Hospital for a period not to exceed ninety
days.
Joseph Hitchings, Esq.
Attorney for Holy Spirit Hospital
Ruby D. Weeks, Esq.
Attorney for CCCYS
Cara A. Boyanowski, Esq.
Attorney for Petitioner
:re
21