J-S49013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: G.E.S., PATIENT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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: No. 419 MDA 2018
Appeal from the Order Entered February 6, 2018
In the Court of Common Pleas of York County Civil Division at No(s):
2018-MH-000025
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 30, 2018
Appellant, G.E.S.,1 appeals from the order denying her petition for
review filed under 50 P.S. § 7109(b) of the Mental Health Procedures Act
(“MHPA”), 50 P.S. § 7101, et seq., after she was involuntarily committed for
treatment pursuant to 50 P.S. § 7303 (“Section 303”). After careful review,
we affirm.
The record reveals that on January 24, 2018, Pennsylvania State Police
Trooper Cory Heimbach responded to G.E.S.’s house for a welfare check.
Section 303 Hearing Transcript, 1/26/18, at 6. When Trooper Heimbach
arrived, he discovered G.E.S. sitting unresponsive in a bathtub with a
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1 The appellee in this matter is the Mental Health-Intellectual and
Developmental Disabilities Program of York and Adams County (hereinafter
“Appellee”).
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* Former Justice specially assigned to the Superior Court.
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laceration to the inside of her left thigh. Id. Trooper Heimbach eventually
was able to wake G.E.S., but she was upset that the Trooper was there and
expressed a desire to end her life. Id. at 7. Trooper Heimbach had G.E.S.
transported to the hospital. Id.
Because of G.E.S.’s attempted suicide, Trooper Heimbach filed a petition
to involuntarily commit G.E.S. pursuant to 50 P.S. § 7302 (“Section 302”) for
a period lasting no more than 120 hours. Section 302 Petition, 1/24/18, at 2-
3. G.E.S. was involuntarily committed under Section 302 for medical and
psychological evaluations. Id. at 7.
The Mental Health, Intellectual, and Developmental Disabilities Program
of York and Adams County (hereinafter “Appellee”), sought to continue
G.E.S.’s involuntary inpatient care pursuant to Section 303. On January 26,
2018, a Section 303 hearing was held before York County Mental Health
Review Officer, Victor A. Neubaum, Esquire. At the hearing, Stephen Dilts,
M.D., G.E.S.’s physician and psychiatrist at the hospital, testified that G.E.S.
told him that she had cut her thigh in a suicide attempt. Section 303 Hearing
Transcript, 1/26/18, at 1. Dr. Dilts further stated that G.E.S. informed him
that she intended to die, and he concluded that G.E.S.’s wound was potentially
life threatening. Id. at 2-3. Following an examination, Dr. Dilts recommended
involuntary inpatient care for a period not to exceed twenty days. Id. at 2.
After review, the Mental Health Review Officer found that there was clear
and convincing evidence that G.E.S. met the statutory requirements for
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involuntary commitment, and G.E.S. was involuntarily committed. On Friday,
February 2, 2018, G.E.S. filed a petition for review in the trial court. The trial
court reviewed the audio recording of the January 26, 2018 Section 303
hearing, and on February 6, 2018, the trial court denied G.E.S.’s petition for
review. This timely appeal followed. G.E.S. and the trial court have complied
with Pa.R.A.P. 1925.
On appeal, G.E.S. raises the following issues for this Court’s
consideration:
1. Whether insufficient evidence was presented at the mental
health review hearing to conclude that [G.E.S.] was severely
mentally disabled as the hospital failed to prove by a clear and
convincing evidence that [G.E.S.] suffered from a severe mental
illness.
2. Whether insufficient evidence was presented at the mental
health review hearing to conclude that [G.E.S.] was severely
mentally disabled as the hospital failed to prove by clear and
convincing evidence that [G.E.S.] attempted suicide, made
threats of suicide, committed acts in furtherance of those threats
or that she had a reasonable probability of suicide.
3. Whether the [l]ower court’s order for involuntary treatment
should be dismissed and [G.E.S.] should be discharged because
the record does not support that the hearing and review of the
recording on [G.E.S.’s] Petition for Review was commenced within
seventy-two (72) hours of the filing of the Petition.
G.E.S.’s Brief at 5.2
The standard necessary for an order for emergency involuntary
treatment under Section 303 is clear and convincing evidence that a person is
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2 We have renumbered G.E.S.’s issues for purposes of our disposition.
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severely mentally disabled. In re Hancock, 719 A.2d 1053, 1055 (Pa. Super.
1998). “Severely mentally disabled” is defined, in relevant part, as follows:
(a) Persons Subject.-Whenever a person is severely mentally
disabled and in need of immediate treatment, he may be made
subject to involuntary emergency examination and treatment. 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.
(b) Determination of Clear and Present Danger.-(1) 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. If,
however, the person has been found incompetent to be tried or
has been acquitted by reason of lack of criminal responsibility on
charges arising from conduct involving infliction of or attempt to
inflict substantial bodily harm on another, such 30-day limitation
shall not apply so long as an application for examination and
treatment is filed within 30 days after the date of such
determination or verdict. In such case, a clear and present danger
to others may be shown by establishing that the conduct charged
in the criminal proceeding did occur, 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.
(2) 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
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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.
50 P.S. § 7301 (emphases added). Moreover,
(a) Persons for Whom Application May be Made.--(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.
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* * *
(f) Determination and Order.--Upon a finding 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. Inpatient treatment shall be deemed appropriate
only after full consideration has been given to less restrictive
alternatives. Investigation of treatment alternatives shall include
consideration of the person’s relationship to his community and
family, his employment possibilities, all available community
resources, and guardianship services. An order for inpatient
treatment shall include findings on this issue.
50 P.S. § 7304(a) and (f) (emphasis added) (internal footnote omitted).
The burden is on the petitioner to “prove the requisite statutory grounds
by clear and convincing evidence.” In re S.M., 176 A.3d 927, 937 (Pa. Super.
2017) (citation omitted). “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. Id. (internal citation and
quotation marks omitted). “In all cases in which the hearing was conducted
by a mental health review officer, a person made subject to treatment
pursuant to this section shall have the right to petition the court of common
pleas for review of the certification. A hearing shall be held within 72 hours
after the petition is filed unless a continuance is requested by the person’s
counsel.” 50 P.S. § 7303(g).
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In G.E.S.’s first two issues, she avers that the evidence was not
sufficient to establish that she was severely mentally disabled and that she
had attempted suicide. After review, we conclude that there was ample
evidence establishing these factors.
As noted above, Trooper Heimbach testified that when he discovered
G.E.S., she was sitting in a bathtub and was unresponsive with a self-inflicted
razor cut to her upper thigh. She informed the Trooper that she wanted to
die. Section 303 Hearing Transcript, 1/26/18, at 6-7. After G.E.S. was
transported to the hospital, Dr. Dilts examined her and spoke to her about her
physical and mental health. Dr. Dilts testified that G.E.S. suffered from Major
Depression, she cut her thigh in an attempt to commit suicide, and her wound
was potentially life threatening. Id. at 1-3. Dr. Dilts stated that G.E.S.
informed him that it was her desire to die and that, with the loss of her farm
imminent, she had no reason to live. Id.
G.E.S. asserts that Dr. Dilts’s diagnosis of Major Depression did not
satisfy fully the definition of Major Depression or Major Depressive Disorder
set forth in the Diagnostic and Statistical Manual of Mental Health Disorders,
Fifth Edition (“DSM-5”). G.E.S.’s Brief at 20. However, G.E.S. fails to cite any
authority that a diagnosis of Major Depression requires the physician to
conclude that every DSM-5 criteria is satisfied. As Appellee points out, DSM-
5 is not a simple checklist of specific standards used to diagnose mental health
disorders; rather, it provides only guidance to physicians. Appellee’s Brief at
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14-15. Evidence of the fallacy in G.E.S.’s claim is illustrated in the “Use of the
Manual” section of DSM-5, which provides as follows:
The primary purpose of DSM-5 is to assist trained clinicians in the
diagnosis of their patients’ mental disorders as part of a case
formulation assessment that leads to a fully informed treatment
plan for each individual. The symptoms contained in the
respective diagnostic criteria sets do not constitute
comprehensive definitions of underlying disorders, which
encompass cognitive, emotional, behavioral, and physiological
processes that are far more complex than can be described in
these brief summaries. Rather, they are intended to summarize
characteristic syndromes of signs and symptoms that point to an
underlying disorder with a characteristic developmental history,
biological and environmental risk factors, neuropsychological and
physiological correlates, and typical clinical course.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, Use of the Manual (5th ed. 2013) (emphasis added).
Accordingly, although Dr. Dilts did not testify that G.E.S. satisfied every
symptom of Major Depression set forth in the DSM-5, he did unequivocally
diagnose her as having Major Depression based on his observations and the
information G.E.S. provided. Section 303 Hearing Transcript, 1/26/18, at 1-
3. We discern no error in the trial court’s conclusion that Dr. Dilts’s testimony
was sufficient to support a diagnosis of a severe mental illness, G.E.S. was a
clear and present danger to herself, and continued involuntary inpatient
treatment was necessary. Trial Court Opinion, 5/8/18, at 2. After review, we
find the trial court’s conclusion is supported by clear and convincing evidence.
50 P.S. §§ 7301 and 7304.
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In her final issue, G.E.S. avers that the order disposing of her petition
for review was not entered until four days after the Section 303 involuntary
commitment order was entered. G.E.S.’s Brief at 12. As set forth above,
generally, a hearing on a petition for review must be held within seventy-two
hours after the petition is filed. 50 P.S. § 7303(g). Here, G.E.S. points out
that the petition was filed on February 2, 2018, and “it is not clear from the
record” when a hearing to review the commitment commenced. G.E.S.’s Brief
at 13. G.E.S. avers that this alleged delay should result in dismissal of the
commitment order. Id. at 15.
The trial court addressed this issue as follows:
[G.E.S.] complains that a hearing or review of the recording was
not done within seventy-two (72) hours after she petitioned the
[c]ourt for review of the order subjecting her to treatment and, as
a consequence, her commitment should be vacated and the
hospital records expunged, citing 50 P.S. 7109(b) & 7303; In re
S.O., 492 A.2d 727, 342 Pa. Super. 215 (1985); In re J.K., 595
A.2d 1287, 407 Pa. Super. 559 (1991); In re Ryan, 784 A.2d
[803] at 805, 2001 Pa. Super 28[8 (2001)].
The procedural background of the case is as follows (see
docket):
1. January 26, 2018. York Hospital filed an Application for
Extended Involuntary Treatment.
2. January 31, 2018. An Order for Extended Involuntary
Emergency Treatment—Section 303 was filed, continuing
involuntary inpatient care and treatment for a period not to
exceed 20 days.
3. February 2, 2018. [G.E.S.] filed a Petition for Review of Mental
Health Commitment, stating at paragraph 5, “Petitioner will rely
upon the taped testimony of the hearing and will not be present.”
The petition was filed on Friday at 1:22 p.m.
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4. February [5], 2018. The [c]ourt entered an Order, denying the
petition for review. The Order was filed … Tuesday[, February 6,
2018,] at 4:13 p.m.1
1 To the best of the [c]ourt’s recollection, it attempted
to review the audio recording of the hearing
conducted on January 26, 2018 on Monday,
February 5, 2018, but the audiotape would not play in
the [c]ourt’s digital voice recorder, requiring the
[c]ourt to secure another audiotape from the mental
health review officer on Tuesday.
The implicated statutes provide as follows:
(b) In all cases in which the hearing is conducted by a
mental health review officer, a person made subject
to treatment shall have the right to petition the court
of common pleas for review of the certification. A
hearing shall be held within 72 hours after the petition
is filed unless a continuance is requested by the
person’s counsel.
50 P.S. 7109(b).
(g) Petition to Common Pleas Court-In all cases in
which the hearing was conducted by a mental health
review officer, a person made subject to treatment
pursuant to this section shall have the right to petition
the court of common pleas for review of the
certification. A hearing shall be held within 72 hours
after the petition is filed unless a continuance is
requested by the person’s counsel. The hearing shall
include a review of the certification and such evidence
as the court may receive or require. If the court
determines that further involuntary treatment is
necessary and that the procedures prescribed by this
act have been followed, it shall deny the petition.
Otherwise, the person shall be discharged.
50 P.S. 7303(g).
The Court also points out the additional language set forth
in the rules governing commitments of 90 days or less, which
provides:
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(e) Hearings of Petition for Court-order Involuntary
Treatment. --A hearing on a petition for court-ordered
involuntary treatment shall be conducted according to
the following:
(7) A decision shall be rendered within 48
hours after the close of evidence.
50 P.S. § 7304(e)(7).
The case sub judice is distinguishable from In re S.O., In re
J.K., and In re Ryan as the patient herein waived the review
hearing, choosing to rely solely on the audio recording instead.
In S.O., the appellant[’s] hearings on the petitions for
review were held 52 and 36 days after the petitions were filed as
opposed to within 72 hours. In re S.O., 342 Pa. Super. at 228. In
J.K., the trial court scheduled a hearing seven days later outside
the 72 hour period. In re J.K., 407 Pa.Super, at 560. In Ryan,
the trial court scheduled a hearing eleven days later. In re Ryan,
784 A.2d at 805. In each ease, the appellant did not receive a
hearing to review the mental health review officer’s
recommendation within the mandated 72-hour period, which is
not the case here. The Court “commenced” the hearing when
it attempted to listen to the audiotape on Monday, February
5, 2018 and concluded the hearing the following day when
it issued its order. In S.O., the Superior Court held that the
72 hours required by Section 109 refers to the time to
conduct the hearing and not the time for decision. In re
S.O., 342 Pa. Super. at 230.
The [c]ourt finds the case of In re J.S., 739 A.2d 1068 (Pa.
Super 1999), to be instructive regarding the application of the 48-
hour rule to render a decision. In J.S. the [S]uperior [C]ourt was
confronted with the issue of whether application of the time
constraint enunciated in Section 7304(e)(7), can logically be
applied as a time to be adopted in Section 7303 where a given
time for the Judge’s determinative review is not set forth. The
J.S. court stated,
Where the period of hospitalization is twenty (20)
days under § 7303, we see no logic in absence of
legislative direction that a prompt judicial decision
should not be made within 48 hours after the review
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hearing regarding the findings of the mental health
Master, if not sooner. By setting this time test in
§ 7303 we see no disruption in the total view and
endeavor sought by the legislature to fix a time for
judicial review which can be fairly applied in the
interest of the designated mental health agency and
the patient. It is clearly as important under § 7303
that a judicial finding be made within 48 hours
whether a patient should remain or be released as it
is under the conditions of § 7304.
In re J.S., 739 A.2d at 1070. In the instant case, the decision was
rendered well within 48 hours of hearing.
In effect In re J.S. found that the statute provides for
sufficient time to adequately present evidence at a hearing and a
reasonable time to pass on such evidence. Id.
Trial Court Opinion, 5/8/18, at 2-6.
The trial court opined that the instant case is analogous to In re W.A.,
91 A.3d 702 (Pa. Super. 2014). In W.A., this Court concluded:
Because the hearing before [the] Mental Health Review
Officer … concluded on September 25, 2013, which was a
Wednesday, a strict interpretation of subsection (e) required the
decision by the trial court to be filed by September 27, a Friday.
Although the order was not filed timely, because of the intervening
weekend, it was filed on Monday, September 30, the next business
day.
W.A. contends that this technical violation requires that the
commitment order be reversed and that he be discharged. This
Court has categorically rejected a mechanical interpretation of the
MHPA. See In re S.L.W., 698 A.2d 90 (Pa.Super.1997).
In In re S.L.W., a consolidated appeal, the panel
considered a pair of challenges arguing that technical violations
involving, among other things, delays in adhering to the
timeframe of the MHPA, required vacating of the commitment
orders. The panel rejected the arguments that advocated a
mechanical application of the MHPA’s statutory provisions. The
panel explained that
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one of the goals of the Mental Health Procedures Act
is to protect the due process interests of the patient
who loses his or her liberty by being committed to an
institution. Protection of those interests requires
fundamental fairness to the patient and respect for
the patient’s dignity and individuality. Achieving this
standard requires common sense application of
statutory provisions, not mechanical application. A
distinction must be made between those standards
that directly affect the due process and liberty
interests of the patient and those that do not.
Id., at 94. Moreover, the panel further instructed that “in 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.” Id.
(footnote omitted).
Here, W.A. has not identified how his due process rights or
liberty interests were violated other than the late filing of the order
by the trial court. Furthermore, we note that, at the time the
Section 304 commitment order was entered, albeit after a one-
weekend delay, W.A. was still receiving treatment pursuant to the
Section 303, 20-day commitment order entered on September 12,
2013. W.A. suffers from bipolar disorder and mania and, as a
result, poses a clear and present danger to himself and others.
Thus, W.A. remains a severely mentally disabled individual in need
of continued involuntary inpatient treatment. The lack of
treatment could lead to serious physical debilitation or death.
The involuntary civil commitment of mentally ill persons
constitutes a deprivation of liberty interests, and to justify this
deprivation the procedures must satisfy due process protections.
See 50 P.S. § 7102 (“The provisions of this act shall be interpreted
in conformity with the principles of due process to make voluntary
and involuntary treatment available where the need is great and
its absence could result in serious harm to the mentally ill person
or to others.”). See also In re R.D., 739 A.2d 548, 554
(Pa.Super.1999). However,
due process, unlike some legal rules, is not a technical
conception with a fixed content unrelated to time,
place and circumstances. Due process is flexible and
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calls for such procedural protections as the particular
situation demands.
Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976)). Adherence to a strict enforcement
of the 48-hour limitation would have ignored the existing Section
303 extended treatment and deprived W.A. of necessary care.
Accordingly, we refuse to vacate W.A.’s Section 304
commitment on the technical grounds he asserts as it is evident
that W.A.’s due process and liberty interests were not affected by
the short delay and his continued needed commitment.
In re W.A., 91 A.3d 702, 704-705 (Pa. Super. 2014) (footnote omitted).
Here, G.E.S. filed her petition for review on Friday, February 2, 2018.
The trial court noted that on Monday, February 5, 2018, it attempted to review
the recording of the January 26, 2018 hearing, but it was unable to complete
its review due to an issue with the court’s voice recorder. Trial Court Opinion,
5/8/18, at 3 n.1. Thus, the trial court points out that it “commenced” its
review of the January 26, 2018 hearing on the first business day, February 5,
2018, following the February 2, 2018, filing of G.E.S.’s petition. The trial court
then completed its review and entered an order on February 6, 2018. We are
satisfied that the trial court complied with the decision in S.O., commenced
its review of G.E.S.’s petition within seventy-two hours as required by Section
109, and rendered a timely decision without any unreasonable delay.
Accordingly, we discern no error.3
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3 Assuming, for the sake of argument, that the trial court did not commence
its review until February 6, 2018, the day the order was filed, we would
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For the reasons set forth above, we conclude that G.E.S. is entitled to
no relief on appeal. Accordingly, we affirm the February 6, 2018 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2018
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conclude that the one-day delay did not deprive G.E.S. of due process.
Rather, we would still affirm the order pursuant to the rationale in W.A.
wherein this Court refused to vacate a commitment on due process grounds
where there was a short delay in the trial court’s review. W.A., 91 A.3d at
705.
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In Re: G.E.S., Patient
Combined Opinion