J-S49020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA

                             Appellee

                        v.

 E.D.

                             Appellant                 No. 466 MDA 2018


         Appeal from the Judgment of Sentence imposed March 6, 2018
             In the Court of Common Pleas of Huntingdon County
                 Civil Division at No: CP-31-MD-0000044-2018


BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 24, 2018

        Appellant, E.D., appeals from an order directing her to undergo

continuing involuntary inpatient mental health treatment under 50 P.S. § 7305

(“section 305”) of the Mental Health Procedures Act (“MHPA”). We affirm.

        On November 10, 2017, Appellant, a physician, voluntarily entered the

behavioral health unit of J.C. Blair Memorial Hospital (“Hospital”) for inpatient

treatment due to suicidal ideations. She was diagnosed with bipolar disorder

with mixed features and anxiety. On November 17, 2017, the court ordered

Appellant to undergo extended involuntary treatment under 50 P.S. § 7303

(“section 303”). On December 7, 2017, the court ordered continued inpatient

treatment for ninety days pursuant to 50 P.S. § 7304 (“section 304”). On

____________________________________________


* Former Justice specially assigned to the Superior Court.
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March 1, 2018, the Hospital filed a petition for continued involuntary inpatient

treatment under section 305.

      During a section 305 hearing on March 6, 2018, Appellant’s treating

psychiatrist, Dr. Qamar, testified that Appellant was depressed and suicidal.

He stated that she had been on intensive treatment, including one-on-one and

team counseling.    On February 18, 2018, just one night after one-on-one

counseling was discontinued, a Hospital nurse discovered that Appellant had

made a noose with which to hang herself.         Appellant told the nurse she

planned to kill herself by hanging herself at the door that goes to a therapist’s

office. Although she had signed safety plans in the past, she did not cooperate

with required treatment. She had been a physician, but at the time of her

treatment, her license in Maryland was revoked and her license in Delaware

was suspended. She had nowhere to live and no one to help her should she

have been discharged.

      Because of the suicide attempt and history of noncompliance with

treatment, Dr. Qamar believed Appellant to be a danger to herself and

recommended placement in a state hospital until she was stable and safe

enough to be discharged. Dr. Qamar testified that Appellant failed to comply

with prior treatment plans. He was alarmed that he had never had a patient

who had posed such a danger to herself as Appellant, stating to her attorney

during the hearing: “Do you know how much we are working to keep her safe?

You don’t . . . We have one-on-one with her, along with team. This is first

time I have seen in my ten years’ training that we stop one-on-one for one

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night and she forms a noose under her pillow.” N.T., 3/6/18, at 7. Dr. Qamar

added that Appellant “still wants to kill herself.” Id. at 2.

      Appellant disagreed with the proposed plan to send her to the state

hospital. She testified that her present course of treatment at the Hospital

was best for her. She believed that the medication and counseling she had

been receiving at the Hospital was helping her. She asked the trial court to

allow her to commit herself voluntarily to inpatient treatment or pursue

outpatient counseling.

      The court denied Appellant’s proposed course of future treatment,

granted the section 305 petition, and ordered Appellant to undergo inpatient

treatment for a period not to exceed 180 days at a state hospital. The order

stated that Appellant “is severely mentally disabled within [the] meaning of

the [MHPA] and presents clear and present danger to herself.”

      Appellant filed a timely appeal, and both Appellant and the court

complied with Pa.R.A.P. 1925. The court wrote in its opinion: “Based on the

evidence presented at hearing, [Appellant] is not only unable to care for her

own safety, but poses a great risk to her life. As such, continued inpatient

treatment is necessary.” Trial Ct. Op., 4/30/18, at 2.

      Appellant raises one question in this appeal:

      Did the Commonwealth prove by clear and convincing evidence
      that the Appellant required continuing involuntary mental health
      treatment at a state hospital, despite the fact that the
      Commonwealth’s sole witness admitted that the Appellant was
      willing to contract for safety, and the Appellant identified less
      restrictive means of treating her condition?


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Appellant’s Brief at 3. We conclude that the Commonwealth proved by clear

and convincing evidence that Appellant required continuing involuntary mental

health treatment at a state hospital.

      Our recent decision in In Re S.M., 176 A.3d 927 (Pa. Super. 2017),

provides an excellent overview of the MHPA that defines key terms within this

act, details each stage of the commitment process, and demonstrates section

305’s relationship to other provisions in the MHPA. We reprint S.M.’s overview

in full below:

      The MHPA provides for involuntary emergency examination and
      treatment of persons who are “severally mentally disabled and in
      need of immediate treatment.” 50 P.S. § 7301(a). It then
      authorizes increasingly long periods of commitment for such
      persons, balanced by increasing due process protections in
      recognition of the significant deprivations of liberty at stake. See
      In re A.J.N., 144 A.3d 130, 137 (Pa. Super. 2016) (highlighting
      MHPA’s purpose as “an enlightened legislative endeavor to strike
      a balance between the state’s valid interest in imposing and
      providing mental health treatment and the individual patient’s
      rights”) (quoting In re Hutchinson, [] 454 A.2d 1008, 1010
      ([Pa.] 1982)); In re Ryan, 784 A.2d 803, 807 (Pa. Super. 2001)
      (“The legislative policy reflected in the [MHPA] is to require that
      strict conditions be satisfied before a court order for commitment
      shall be issued. Such a policy is in accord with the recognition
      that commitment entails a massive deprivation of liberty.”)
      (quoting Commonwealth v. Hubert, [] 430 A.2d 1160, 1162
      ([Pa.] 1981)). Accordingly, “[i]n applying the [MHPA,] we must
      take a balanced approach and remain mindful of the patient’s due
      process and liberty interests, while at the same time permitting
      the mental health system to provide proper treatment to those
      involuntarily committed to its care.” In re S.L.W., 698 A.2d 90,
      94 (Pa. Super. 1997).

      Under section 301(a):




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        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.

     50 P.S. § 7301(a). Section 301(b)(2) defines “clear and present
     danger” to oneself as follows:

     Clear and present danger to himself 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 mutilation and has committed acts which
     are in furtherance of the threat to commit mutilation.

     Id. § 7301(b)(2).

     Section 302 provides for emergency examination of persons,
     which

        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

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     or other authorized person who has personally observed conduct
     showing the need for such examination.

     Id. § 7302(a). Under section 302(b), a physician must examine
     the person “within two hours of arrival . . . to determine if the
     person is severely mentally disabled within the meaning of section
     301 and in need of immediate treatment.” Id. § 7302(b) (internal
     footnote omitted). If the physician so finds, then “treatment shall
     be begun immediately.” Id. If not, then “the person shall be
     discharged and returned to such place as he may reasonably
     direct.” Id. Section 302 allows a person to be committed up to
     120 hours. Id. § 7302(d).

     When a treatment “facility determines that the need for
     emergency treatment is likely to extend beyond 120 hours,”
     section 303 provides that the facility may apply to have that
     involuntary commitment extended up to 20 days. Id. § 7303(a),
     (h). The facility files an application for such commitment with the
     court of common pleas, which then appoints an attorney for the
     person unless it appears “that the person can afford, and desires
     to have, private representation.” Id. § 7303(b). “Within 24 hours
     after the application is filed, an informal hearing shall be
     conducted by a judge or . . . [MHRO.]” Id. The court or MHRO
     must keep the record generated by these proceedings for at least
     one year.      Id. § 7303(c)(2).       Where the judge or MHRO
     “determines that extended involuntary emergency treatment is
     necessary,” a “certification shall be filed with the director of the
     facility and a copy served on the person, such other parties as the
     person requested to be notified pursuant to section 302(c), and
     on counsel.” Id. § 7303(d)(1), (e).

     Should an MHRO certify that an extended section 303 commitment
     is appropriate, the committed person may “petition to the court of
     common pleas for review of the certification.” Id. § 7303(g). The
     court must hold a hearing “within 72 hours after the petition is
     filed unless a continuance is requested by the person’s counsel.”
     Id. “The hearing shall include a review of the certification and
     such evidence as the court may receive or require.” Id. “If the
     court determines that further involuntary treatment is necessary
     and that the procedures prescribed by the [MHPA] have been
     followed, it shall deny the petition. Otherwise, the person shall be
     discharged.” Id.




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     Section 304 of the MHPA allows for court-ordered involuntary
     treatment up to 90 days. Id. § 7304(g). Petitions for involuntary
     commitment under section 304 may be made for persons already
     committed under section 302 or 303, see id. § 7304(b), as well
     as for persons not currently committed, see id. § 7304(c).
     Subsection (a) describes who may be committed under section
     304:

     (1) A person who is severely mentally disabled and in need of
     treatment, as defined in section 301(a), may be made subject to
     court-ordered involuntary treatment upon a determination of clear
     and present danger under section 301(b)(1) (serious bodily harm
     to others), or section 301(b)(2)(i) (inability to care for himself,
     creating a danger of death or serious harm to himself), or
     301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (self-
     mutilation).

     (2) Where a petition is filed for a person already subject to
     involuntary treatment, it shall be sufficient to represent, and upon
     hearing to reestablish, that the conduct originally required by
     section 301 in fact occurred, and that his condition continues to
     evidence a clear and present danger to himself or others. In such
     event, it shall not be necessary to show the reoccurrence of
     dangerous conduct, either harmful or debilitating, within the past
     30 days.

     Id. § 7304(a)(1),(2) (internal footnote omitted). For persons
     already subject to treatment under sections 303, 304, or 305, the
     county administrator or the director of the facility may petition for
     court-ordered involuntary treatment. Id. § 7304(b)(1). For
     persons not already in involuntary treatment, “[a]ny responsible
     party may file a petition in the court of common pleas requesting
     court-ordered involuntary treatment for any person . . . for whom
     application could be made under [section 304](a).”             Id. §
     7304(c)(1).

     As with section 303, the subject of the petition is entitled to
     assistance of counsel and a hearing on the petition. Id. §
     7304(b), (c). If the person is currently committed, the hearing
     shall be held within five days. Id. § 7304(b)(4). If the person is
     not currently committed, then the person shall be served a copy
     of the petition “at least three days before the hearing.” Id. §
     7304(c)(4). Persons subject to such a hearing have the right “to
     the assistance of an expert in mental health,” the right to silence,

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     “the right to confront and cross-examine all witnesses and to
     present evidence in his own behalf,” and the right to a private
     hearing upon request. Id. § 7304(e)(1)-(4). “A stenographic or
     other sufficient record [of the hearing] shall be made[.]” Id. §
     7304(e)(5). The court must impound the record, which may be
     “obtained or examined only upon the request of the person or his
     counsel or by order of the court on good cause shown.” Id. As
     with section 303, “[t]he hearing shall be conducted by a judge or
     by a [MHRO] and may be held at a location other than a
     courthouse when doing so appears to be in the best interest of the
     person.” Id. § 7304(e)(6). If the judge or MHRO finds by

        clear and convincing evidence that the person is severely
     mentally disabled and in need of treatment and subject to
     subsection (a), an order shall be entered directing treatment of
     the person in an approved facility as an inpatient or an outpatient,
     or a combination of such treatment as the director of the facility
     shall from time to time determine.

     Id. § 7304(f). Inpatient treatment may be ordered “only after full
     consideration has been given to less restrictive alternatives.” Id.
     As with section 303, if the determination is made by an MHRO,
     the person has a right to appeal the certification to the court of
     common pleas. Id. § 7109(b). This review process is identical to
     the section 303 certification review process. Id.

     Under section 305, the trial court may extend a period of
     involuntary treatment under section 304(g) or 305 for up
     to 180 days. Id. § 7305(a). To commit a person under
     section 305, the trial court must make the requisite
     findings in section 304(a) and (b), and must further find “a
     need for continuing involuntary treatment as shown by
     conduct during the person’s most recent period of court-
     ordered treatment.” Id. Persons found dangerous to
     themselves under section 301(b)(2) are “subject to an
     additional period of involuntary full-time inpatient
     treatment only if [they] ha[ve] first been released to a less
     restrictive alternative.” Id. However, that requirement
     does not apply where the judge or MHRO determines “that
     such release would not be in the person’s best interest.”
     Id. As with sections 303 and 304, if the determination is
     made by MHRO certification, the person may seek review
     in the court of common pleas. Id. § 7109.


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Id. at 930-34 (emphasis added).

      “In reviewing a trial court order for involuntary commitment, we must

determine whether there is evidence in the record to justify the court’s

findings.” Id. at 935. “Although we must accept the trial court’s findings of

fact that have support in the record, we are not bound by its legal conclusions

from those facts.” Id.

      The issue in this case is whether there was sufficient evidence to warrant

Appellant’s continued involuntary treatment under section 305.       To satisfy

section 305, there must be “clear and convincing evidence of the need for

continuing involuntary treatment as shown by conduct during the person’s

most recent period of court-ordered treatment.” Id. “Our Supreme Court has

defined clear and convincing evidence as ‘testimony that is so clear, direct,

weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hesitation, of the truth of the precise facts in issue.’” In

re S.T.S., Jr., 76 A.3d 24, 38 (Pa. Super. 2013) (quoting In re R.I.S., 36

A.3d 567, 572 (Pa. 2011)). “[T]he clear and convincing evidence test ‘has

been described as an ‘intermediate’ test, which is more exacting than a

preponderance of the evidence test, but less exacting than proof beyond a

reasonable doubt.’” Id. (quoting Commonwealth v. Meals, 912 A.2d 213,

219 (Pa. 2006).

      Our analysis in Commonwealth v. Romett, 538 A.2d 1339 (Pa. Super.

1988), guides our review of section 305. In Romett, we reviewed a section


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305 recommitment that was originally based on the appellant’s violent

behavior towards family members.       Her commitment was extended three

times before the section 305 hearing. At that hearing, she “violently slapped

a nurse across the face.” Id. at 1341. Her treating psychiatrist testified that

“[she] had also recently shown assaultive behavior toward him.” Id. The

psychiatrist testified that she had a mental illness “manifested in delusions,

poor impulse control, and beliefs that others are ‘out to get her.’” Id. The

psychiatrist opined that “cessation of [her] treatment would reasonably result

in future assaultive behavior . . . [and she] posed a danger to others rather

than to herself.”   Id.   Based on this evidence, the trial court ordered her

involuntarily committed for 30 days of inpatient treatment, followed by 150

days of outpatient treatment. We affirmed, holding:

      [F]or a person to be recommitted for an additional period of
      treatment, it need not be established that the person has inflicted
      or attempted to inflict serious bodily harm upon another within
      the past thirty days, as required for the original commitment. The
      [MHPA] specifically states that on recommitment it is not
      necessary to show that the patient committed an overt act within
      30 days of the hearing. It is necessary however for the court to
      find that within the patient’s most recent period of
      institutionalization, the patient’s conduct demonstrated the need
      for continuing involuntary treatment, . . . i.e. his condition
      continues to evidence a clear and present danger to himself or
      others ....

Id. at 1341–42. We concluded that clear and convincing evidence supported

the trial court’s finding that the appellant posed a clear and present danger to

others, since she exhibited violent conduct which resulted in her initial

commitment, continued to do so during the commitment period, and had a

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“diagnosis as a paranoid schizophrenic with delusions that others are

threatening her, together with [a] prognosis that her assaultive behavior

would continue without further treatment.” Id.

      Whereas the record in Romett showed that the appellant continued to

pose a clear and present danger to others, the record herein demonstrates

that Appellant continued to pose a clear and present danger to herself.

Appellant was admitted to the Hospital on November 10, 2017 due to suicidal

ideations. The court ordered further involuntary treatment on November 17,

2017 and an additional ninety days of involuntary commitment during a

section 304 hearing on December 17, 2017. On March 6, 2018, the court

convened a section 305 hearing to determine whether further involuntary

commitment was necessary.       Appellant’s treating psychiatrist testified that

Appellant constructed a noose on February 18, 2018, during her most recent

period of hospitalization and just one day after one-on-one counseling ended.

When a nurse discovered the noose, Appellant described the manner in which

she intended to hang herself. Appellant’s psychiatrist testified that in his ten

years of experience, he had never had a patient attempt suicide so quickly

after the discontinuation of treatment.       He added that Appellant was non-

compliant with all past safety plans, and that if she were discharged, she had

nowhere to go and nobody to help her.

      Thus, we agree with the trial court that there was clear and convincing

evidence that (1) Appellant committed an overt act during her most recent


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period of hospitalization, and (2) she continues to pose a clear and present

danger to herself.      This evidence was sufficient to uphold the order

involuntarily committing Appellant to 180 days of inpatient treatment at a

state hospital. We conclude that Appellant’s challenge to the sufficiency of

the evidence is devoid of merit.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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