                                           No.    85-83

               I N THE SUPREME COURT O THE STATE O MONTANA
                                      F           F

                                              1985




I N THE MATTER O THE M N A
                F     E T L
HEALTH O 11-C
         F




APPEAL F O :
        R M      D i s t r i c t C o u r t o f t h e Tenth 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 F e r g u s ,
                 The Honorable P e t e r L. Rapkoch, J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                 Robert E.       L a F o u n t a i n a r g u e d , Bil.1-ings, Montana


         F o r Respondent:

                 J o n A. Oldenburg a r g u e d , Deputy County A t t o r n e y ,
                 Lewistown, Montana




                                              Submitted:         September 2 4 ,        1985

                                                  Decided:       November 6 , 1985



Filed:
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.


     The        respondent,     Fergus    County,   State       of   Montana,
initiated involuntary commitment proceedings to keep the
appellant,        confined    in     a   hospital       for     psychological
nvaluation and treatment.            The proceedings were eventually
dismissed.       The appellant filed a petition in District Court
to order the respondent to pay all costs incurred.                          The
District Court allowed some costs and denied others.
    F e affirm.
     J
     The     issue    presented      is whether     a    county      that   has
initiated involuntary commitment proceedings to confine a
person     to    a   hospital      for   psychological        evaluation    and
treatment is liable for the costs of attorney fees, expert
witness    fees, and all medical treatment incurred by                      the
individual during confinement.
     The appellant is a resident of Fergus County, Montana.
On May     19, 1983, she was examined by a psychologist in
Lewistown, Montana, and he concluded that                     she should be
admitted to a hospital for further evaluation and treatment.
He and appellant's daughter arranged for the appellant to he
admitted to the Billings Deaconess Hospital.                  He also made a
recommendation to the Fergus County Attorney's office that
the appellant be committed.
     On May 20, 1983, prior to any commitment proceedings,
the appellant was admitted to the Billings Deaconess.                       Her
daughter accompanied her.           The appellant was admitted to the
psychiatric ward of the hospital.            She maintains that she was
at all times under the belief that the examination by the
psychologist and the admission to Fillings Deaconess were for
physical examination purposes.
     By May 26, 1.983, a petition was filed in the District
Court.    The District Court ordered that appellant be detained
at the Billings Deaconess Hospital where she had previously
voluntarily committed herself.           At the same time the court
set a hearing date.         The date was postponed.            The parties
tried to negotiate a resolution to the problem.                    On about
July 1, 1.983, the appellant left Billings Deaconess of her
own volition.       The county dismissed the commitment proceeding
on September 8, 1983.        It was determined that the a.ppellant
no longer presented a threat to herself or others.
     The appellant wa.s at the Billings Deaconess Hospital
from May 20 to about July 1, 1.983.               During her stay, in
ad-dition to        psychiatric     evaluation    and    treatment,     she
received     evaluation     and    treatment     for    certain    physical
disorders.     She was treated for dental, thyroid, and colon
problems.       The     county     maintains     that   this      additional
treatment     was    done   at    appellant's     request    without    the
knowledge of the county.
     After     the    proceedings    were   dismissed       the    appellant
submitted. a memorandum of costs incurred as a resul-t of the
commitment proceedings.          Appellant's insurer paid some of the
claims and the county accepted liability for others.                    The
appellant then submitted a petition for allowance of unpaid
costs to the county.
     The District Court denied the following costs:
     1.     Dr. Prill                 dental         $   28.00
     2.     Dr. Hull                  dental             60.00
     3.     Dr. Ryorth                thyroid           506.00
     4.     Billings Radiology        colon x-ray        17.80
     5.     Dr. Pierce                expert witness
                                       psychiatrist     714.00
     6.     Mr. Brueggman             attorney       $1,088.00
     The District Court denied the costs numbers one, two,
three and four because they were not connected with the
mental   disorder.         It    denied    number     five    because   the
psychiatrist,    as   an        expert    witness,    was    not   properly
requested of    the District Court as required by                  statute.
Section 53-21-118, MCA.           It denied number six because the
attorney was not the original court-appointed counsel but one
retained at appellant's own expense.              Section 53-21-117, MCA.
The appellant appealed from this denial of costs.
    Appellant argues that she was involuntarily committed to
the hospital and that the hospital had a duty to arrange for
medical treatment as one of her paramount rights as a patient
to receive prompt and. adequate medical treatment for any
physical ailment and        it is the duty of the health care
facility to provide that care and treatment at the expense of
the county who is responsible for the costs of her physical
disorders while confined.
     In addition to expenses for her care at the hospital,
appellant argues that the District Court initially appointed
counsel for her and that is proof that she is indigent and
therefore is entitled to her medical expenses from the county
poor fund   .
     Fergus     County     responds        that     the     appellant   was
voluntarily admitted to the hospital but does acknowledge
that it did seek to commit her soon after she was admitted.
The respondent does not challenge the fact that the appellant
was confined and that she received medical treatment for
physical ailments while confined.                 Fergus County rejected
appellant's claims on the ground that the Montana statutes do
not provide     for the payment by           the county for expenses
incurred for treatment unrelated to the mental disorders for
which a person is committed.
     The respondent also argues that Montana law requires an
insured person's insurance to pay for the treatment received
while confined.     Respondent further points out that if the
claimant is unable to pay for her own care, either through
the insurance company or her own funds, then she may seek
payment from the county poor fund.         Simply because counsel
was appointed in a commitment proceeding does not mean that
appellant   is    classified   as   an   indigent   for   poor   fund
purposes.
     It's clear that the parties disagree whether appellant
wzs admitted. to the hospital voluntarily or involuntarily.
The resolution of this matter is not critical because the
respondent agrees that at the time of admission, commitment
proceedings were started. and that during most of her time in
the hospital appellant was under the confinement order of the
District Court.     It was during this period that she received
treatment for physical disorders.
     The District Court properly         rejected the claims for
medical expenses for the reason that they were not part of
the treatment due as a result of the confinement.            Section
53-21-132, MCA, provides:
     53-21-132.   Cost of examination and cornrni.tment.
     (1) The cost of the examination, committal, and
     taking a person who is seriously mentally ill to a
     mental health facility must be paid by the county
     in which he resides at the time he is adjudged to
     be seriously mentally ill.     The sheriff must be
     all-owed the actual. expenses incurred in taking a
     person who is seriously mentally ill to the
     facility, as provided by 7-32-2144.
    (2)   The county of residence shall also pay all
    precommitment expenses, including transportation to
    a mental health facility, incurred in connection
    with the detention, examination, and precommi-tment
    custody of the respondent. The fact that a person
     is examined, hospitalized, or receives medical,
     psychological, or other mental health treatment
     pursuant to this part does not relieve a third
     party from a contractual obligation to pay for the
     cost of the examination, hospitalization, or
     treatment.
     Pursuant to this statute certain expenses incurred must
be paid by the county.        However, the record shows that the
denied costs were incurred at the appellant's own request
without    knowledge of    the county and the costs were not
related to the treatment due as a result of the confinement.
The appellant had personal insu.rance that paid a portion of
the medical expenses.       As to the remaining medical expenses
we do not believe that the legislature intended the county to
be liable under the facts presented here.
     The court properly rejected her claim for payment of her
attorney     who   was   retained   by   the   appellant   after   she
dismissed her court appointed counsel.         Appellant is entitled
to counsel as provided        in section 53-31-116, MCA, which
provides :
     53-21-116.    Right to be present at hearing or
     trial--appointment of counsel. The person alleged
     to be seriously mentally ill has the right to be
     present at any hearing or trial.      If he has no
     attorney, the judge shall appoint one to represent.
     him at either the hearing or the trial, or both,
     who shall be compensated from the public funds of
     the county where the respondent resides.
     But when the appellant chose to retain her own attorney
she came under section 53-21-117, MCA.             That provides as
follows:
     53-21-117.     Right to representation by own
     attorney.     The respondent or the friend of
     respondent appointed by the court may secure an
     attorney of his own choice and at his own expense
     to represent the respondent.
The District Court correctly denied attorney fees.
     In refusing to compensate the appellant's expert witness
the District Court relied on section 53-21-1.18, MCA:
      53-21-118.   Right to examination by professional
      person of own choosing.    (1.) The respondent, his
      attorney, or the friend of respondent appointed by
      the court may secure a professional person of his
      own choice to examine the respond.ent and to testify
      at the hearing before the court or jury as to the
      results of his examination.
      (2) If the person wishing to secure the testimony
      of a professional person is unable to do so because
      of financial reasons and if the respondent joins in
      the request for the examination, the court shall
      appoint a professional person other than the
      professional person requesting the commitment to
      perform the examination.    Whenever possible, the
      court shall allow the respondent a reasonable
      choice   of   an   available professional person
      qualified to perform the requested examination who
      will be compensated from the public funds of the
      county where the respondent resides.      (Emphasis
      added. 1
      The failure of the appellant to obtain prior approval of
the   court   for   expert witness fees precludes payment    of
compensation for that expert witness.
      Affirmed.
                                        A




We Concur:




          Justices
