Commonwealth ex rel. Finken, Appellant, v. Roop
Superior Court of Pennsylvania
April 22, 1975
234 Pa. Super. 155
Judgments of sentence affirmed.
Commonwealth ex rel. Finken, Appellant, v. Roop.
Margaret H. Poswistilo, Assistant Public Defender, for relator, appellant.
OPINION BY HOFFMAN, J., April 22, 1975:
Appellant challenges the constitutionality of §406 of the Pennsylvania Mental Health and Mental Retardation Act of 19661 under which he had been committed from November 5, 1973, until May, 1974.2
On January 19, 1970, appellant pleaded guilty to charges of sodomy and corrupting the morals of a minor. Pursuant to §4410 of the Mental Health Act,3 appellant was again committed to Allentown State Hospital for a ninety-day period commencing February 13, 1970. On May 14, 1970, the commitment order was indefinitely extended. Appellant was released from Allentown State Hospital on March 12, 1973. At the time appellant was discharged, Dr. Bischoff, a psychiatrist at the hospital, filed a report concluding that appellant no longer required confinement in a mental institution. Dr. Bischoff‘s report did state that appellant needed a strong structure with rigid control, but she felt that probation would provide some of that structure. On April 9, 1973, appellant was sentenced to two years’ probation on the sodomy and corruption charges. As a condition of his probation, appellant was required to undergo regular treatment.
On October 24, 1973, Thomas Cavanaugh, Warden of Northampton County Prison, filed a petition under §408 of the Mental Health and Retardation Act, supra, which provides for the commitment of persons charged with a crime and detained in a penal or correctional institution. The following day, a hearing was held on a habeas corpus petition filed by appellant. The Parole Board and the District Attorney informed the court that appellant was not guilty of any technical probation violation and therefore could not be detained further. The court granted appellant‘s petition for habeas corpus, and ordered Northampton County Prison to release the appellant. Appellant‘s discharge obviously foreclosed continuance of commitment proceedings under §408. The District Attorney, however, moved to amend the petition so that the Commonwealth could proceed under §406, providing for civil commitment. Appellant, therefore, had notice of the petition for one day, but had never received a copy. The Commonwealth then requested that the court hold a hearing to determine whether appellant should be committed
Dr. Ovitz testified and repeated the substance of the report he had prepared on July 9, 1973. Dr. Ovitz had attempted to interview the appellant on October 24, 1973, but was informed that appellant would not cooperate on advice of counsel. Dr. Bischoff also testified and repeated her evaluation of March 12, 1973, when the appellant was discharged from Allentown State Hospital. Dr. Bischoff testified further that appellant belonged in a “Halfway House” and did not require confinement in a mental institution. Following the close of testimony, the court ordered that appellant be sent to Muhlenberg Medical Center. Two physicians were directed to examine the appellant and report their findings and recommendations to the court within ten days.
A civil commitment hearing was held before Judge GRIFO on November 5, 1973, for the purpose of receiving the report of the examining physicians. Appellant‘s counsel was then given a copy of Warden Cavanaugh‘s petition for the first time. Defense counsel objected to the hearing on the ground that the initial hearing at which appellant was ordered committed for ten days was void because appellant had not received adequate notice. Counsel also contended that even if appellant had been afforded proper notice of the October 25 and November 5 hearings, appellant was not prepared to proceed because an October 24, 1973, petition requesting the appointment of an independent psychiatric expert was outstanding. President Judge PALMER had not yet acted on appellant‘s petition because he had to research the legal problems attendant to appellant‘s request for confidentiality. Appellant‘s objections were overruled.
Dr. Rowley, who had examined appellant at the Muhlenberg Medical Center, testified that appellant posed a greater danger to himself than he did to the community at large. Following Dr. Rowley‘s testimony, Judge GRIFO ordered appellant committed to Allentown State Hospital for a period of six months. Immediately thereafter, the court denied a habeas corpus petition which appellant had filed on October 30, 1973. This appeal was taken from the denial of that petition.4
Appellant contends that the Commonwealth failed to comply with the terms of the Pennsylvania Civil Commitment Statute,
I. Alleged Failure to Comply with §406
A. Inadequacy of the Petition
Under §406 (a), a petition for civil commitment may be filed “[w]henever a person is believed to be mentally disabled, and in need of care or treatment by reason of such mental disability.” Section 406 (a) (1) provides that the petition may be made by “an authorized agent of a governmental ... agency.” Section 406 (a) (2) requires that “[t]he petition shall set forth the facts upon which the petitioner bases his belief of mental disability and the efforts made to secure examination of the person by a physician.” (Emphasis added). The petition filed in the present case is inadequate.
Warden Cavanaugh is clearly a proper party to file a commitment petition. The petition, however, avers no facts to explain why the petitioner believed appellant to be mentally disabled, and thus fails to comply with §406 (a) (2). It is true that the petition was originally filed under §408, providing for the commitment of persons charged with a crime and detained in a penal or correctional institution. It is also true that §408 does not require the petitioner to set forth the facts upon which he bases his belief that the person is mentally disabled. The appellant, however, vigorously objected when the Commonwealth asked for leave to amend the petition into a civil commitment petition under §406. The trial court granted the motion and proceeded to hold the preliminary hearing to determine whether appellant should be confined for a ten-day period to undergo examination. Warden Cavanaugh‘s petition was treated as a civil commit-
B. Inadequate Notice
Section 406 (a) (3) provides that when a petition is filed, the court must: (1) issue a warrant requiring that the person be brought before the court; (2) fix a date for a hearing, which shall be as soon as the warrant is executed; and (3) notify the parties in interest. In the present case, the authorities had previously incarcerated appellant as a probation violator, thus obviating any need to issue a warrant. The petition was filed on October 24, 1973, and the hearing was held on October 25, immediately after the court ordered appellant released from Northampton County Prison. Thus, at best, appellant had notice of the §408 petition for one day. Appellant was not informed that the petition would be under §406 until the day of the hearing.
It is clear that appellant is a “part[y] in interest.” Under the terms of the statute, therefore, the court was required to notify him that a civil commitment petition had been filed against him. It is well-settled that every presumption is in favor of the constitutionality of legislative acts, Glancey v. Casey, 447 Pa. 77, 88, 288 A. 2d 812 (1972), and that statutes should be construed whenever possible to uphold their constitutionality. Bentman v. Seventh Ward Democratic Executive Committee, 421 Pa. 188, 218 A. 2d 261 (1966). Thus, we must construe
In requiring that all parties in interest be given notice of the petition, the legislature must have intended that the notice be adequate and in compliance with the dictates of the Due Process Clause. “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded...” Application of Gault, 387 U.S. 1, 33 (1967). In Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded for more specific injunction sub. nom. Schmidt v. Lessard, 414 U.S. 473, 94 S. Ct. 713 (1974), a case dealing with civil commitment, the court amplified the essentials of adequate notice: “Notice of date, time and place is not satisfactory. The patient should be informed of the basis for his detention, his right to jury trial, the standard upon which he may be detained, the names of examining physicians and all other persons who may testify in favor of his continued detention, and the substance of their proposed testimony.” 349 F. Supp. at 1092. Although we do not adopt all the elements required by Lessard, it is clear that the appellant was not provided adequate notice. In addition to the facts that notice of the hearing was given only one day in advance, appellant was never informed of the reasons for his detention prior to the preliminary hearing of October 25. Futhermore, appellant was not made aware of the substance of Dr. Rowley‘s testimony until he actually testified at the final commitment hearing. Finally, the petitioner, Warden Cavanaugh, did not appear at either hearing, thus depriving the appellant of an opportunity to cross-examine his principal accuser.
It should be noted that the failure of §406 to specify basic procedural safeguards does not render the statute
II. Necessity for Stringent Due Process Requirements in Commitment
It is obvious that involuntary commitment involves the same fundamental liberty that is at stake in criminal
In the past, courts have held that commitment proceedings did not require the full panoply of due process safeguards that are accorded those accused of crime. Usually, the justification asserted was that the state, al-
“These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae. The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historic credentials are of dubious relevance. ...
“Accordingly, the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is—to say the least—debatable ...” 387 U.S. at 15-17 (footnotes omitted).
Although Gault focused on the procedural due process that must be accorded juveniles, its reasoning must apply to civil commitment because in both situations individual liberty and the freedom from unwanted restraint are at stake. See, e.g., Heryford v. Parker, 396 F. 2d 393, 396
A second justification that has been asserted in support of lowering due process standards in commitment proceedings is the proposition that involuntary commitment is civil, rather than criminal in nature. Thus, as recently as nineteen years ago, the Pennsylvania Supreme Court stated that a commitment proceeding “is not a criminal prosecution but a collateral proceeding to determine the mental health of the person involved for his benefit or for the benefit of the public or both.” Commonwealth v. Bechtel, 384 Pa. 184, 190, 120 A. 2d 295, 298 (1956). This rationale is actually only another formulation of the parens patriae argument and is impossible to support after Gault. Euphemistic terminology is not determinative of the application of the Due Process Clause: “We cannot, nor should we, ignore the serious consequences of such proceedings simply by designating them as ‘collateral’ rather than ‘criminal‘. ... Whether denominated collateral or criminal, such proceedings are surely subject to the due process clause of the Constitution.” Commonwealth ex rel. McGurrin v. Shovlin, 210 Pa. Superior Ct. 295, 300, 231 A. 2d 760 (1967) (HOFFMAN, J., dissenting), rev‘d 435 Pa. 474, 257 A. 2d 902 (1969). Furthermore, in Commonwealth v. Dooley, 209 Pa. Superior Ct. 519, 525, 232 A. 2d 45, 48 (1967),10 this Court stated that “[t]hese commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 U.S. 107, ... and to the Due Process Clause.” 209 Pa. Superior Ct. at 525,
We must consider the reality of the lower court‘s commitment order. The serious deprivation of liberty and the unfortunate stigma which follow involuntary commitment render the distinction between “criminal” and “civil” proceedings meaningless. The reasoning in Gault is controlling: “A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning—that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes ‘a building with whitewashed walls, regimented routines and institutional hours ...‘” 387 U.S. at 27. (footnote omitted, emphasis added). See also, In Re Winship, 397 U.S. 358, 365-366 (1970); Lessard v. Schmidt, supra, at 1088.11
Although the states “have traditionally exercised broad power to commit persons found to be mentally ill,”
III. Denial of Procedural Due Process
A. Exclusion of Hearsay
At the initial hearing on October 25, Dr. Ovitz was asked on cross-examination:
“Q. Doctor, on what basis are you saying at the present time that he‘s dangerous, to commit him for an examination?
“A. On the basis of the past history of compulsive sexual deviation, refusal to follow rules in jail, I understand, and...” (Emphasis added).
Appellant‘s objection to the admission of the last statement was overruled by the trial judge. There was no indication that Dr. Ovitz had any personal knowledge of the appellant‘s failure to observe prison rules. On the contrary, Dr. Ovitz‘s testimony indicates that he was relying, in part, on the declaration of others to reach his conclusion that appellant ought to be committed for ten days for purposes of examination.
The Commonwealth advances no argument to support a relaxation of the customary rules of evidence in involuntary commitment proceedings. In Lessard v. Schmidt, supra, the court stated: “Where standard exclusionary rules forbid the admission of evidence, no sound policy reasons exist for admitting such evidence in an involuntary mental commitment hearing. Indeed, the seriousness of the deprivation of liberty and the consequences which follow an adjudication of mental illness make imperative strict adherence to the rules of evidence generally applicable to other proceedings in which an individual‘s liberty is in jeopardy.” 349 F. Supp. at 1103. It places no burden on the Commonwealth to ensure that the examining physicians are furnished with admissible
B. Burden of Proof
Justice HARLAN, concurring in In Re Winship, 397 U.S. 358 (1970), stated that “... the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” 397 U.S. at 370. Thus, in Woodby v. Immigration and Naturalization Service, 385 U.S. 276 (1966), the Court, in determining the burden of proof for deportation, stated that “... a deportation proceeding is not a criminal prosecution. ... But it does not syllogistically follow that a person may be banished from this country upon no higher degree of proof than applies in a negligence case. ... We hold that no deportation order may be entered
unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.” 385 U.S. at 285-286. It would seem that the social costs of an erroneous factual determination are greater in civil commitment than in deportation. In any event, it is clear that a mere preponderance of the evidence standard provides too large a margin of error for such a severe infringement of individual liberty.
In Re John Ballay, supra, discussed this issue in terms of striking a proper balance between the state interest in civilly committing persons who pose a danger to society or themselves, and the individual interest in remaining free from unwanted restraint. The Court adopted a reasonable doubt standard because “a more demanding burden of proof is by its nature largely neutral in its affect on relevant state policies. It is more appropriately characterized as a particularly suitable means of reducing the risk of factual errors which may be engendered by the statute or by the difficulties inherent in the disciplines associated with mental illness.” 482 F. 2d at 650. The court in Lessard v. Schmidt, supra, also adopted a reasonable doubt standard.
It is impossible to discern the standard used by the court below. Appellant vigorously argues that the evidence was insufficient to commit under any burden greater than preponderance. This contention need not be reached because appellant‘s commitment must be vacated for other reasons already discussed. It seems clear, however, that any burden of proof less than “clear, unequivocal and convincing” would not pass constitutional muster.
C. Failure to Require Examining Physicians to Warn the Subject that He has a Right to Remain Silent.
Appellant‘s contention poses a very serious and difficult issue. Clearly, the privilege against self-incrimination will be applicable to commitment proceedings, and the subject cannot be compelled against his will to divulge
At the outset, it is clear that statements made by an individual to a psychiatrist employed by the state are within the
It is appealing to continue the analogy with the criminal justice system and require that the psychiatrist warn the subject of his right to remain silent. The Commonwealth, on the other hand, might contend that a warning would unduly interfere with the diagnostic process. In view of the fact that counsel is required, and that the subject must be accorded a fair and accurate proceeding, it would seem that the individual‘s interests
D. Failure to Allow Facility to Adopt Less Restrictive Course Without Prior Judicial Approval
Section 406 (b) provides in part: “In its order of commitment, said court may permit partial hospitalization or outpatient care, or if at any time thereafter the director shall determine such partial hospitalization or outpatient care to be beneficial to the person so committed, the same may be permitted by said court upon application by the director.” (Emphasis added). In Dixon v. Attorney General, supra, at p. 974, the court
E. Failure to Inform Subject of Alternatives to Commitment and the Basis for Rejecting the Alternatives
This issue is brought precisely into focus by the facts of the present case. At the preliminary hearing, Dr. Bischoff testified that appellant did not require confinement in a mental institution. At the commitment hearing, Dr. Rowley stated that in his opinion appellant posed a greater danger to himself than he did to society. Thus, the court was fully aware of the possibility that both the societal and individual interests at stake could be satisfied by some form of custody less drastic than complete and total commitment to a mental institution. Yet, the court made no effort to investigate any alternative, other than to inform Dr. Bischoff that the county did not have a “Halfway House.”
In view of the vigorous attacks leveled against the commitment of mentally ill persons in general,15 it would seem incumbent upon the counties, or if they are unable, upon the Commonwealth, to provide alternatives to commitment for those individuals who are not in need of total confinement. Thus, in Dixon v. Attorney General, supra, at p. 974, the court ordered that “[n]o commitment shall authorize confinement at Farview State Hospital absent a specific finding based on a preponderance
IV. Denial of Substantive Due Process
Appellant contends that
“The Supreme Court has identified two principal deficiencies which may result in the invalidation of a statute as impermissibly vague: (1) failure to give fair warning of the conduct proscribed by the law and (2) absence of standards restricting the discretion of governmental authorities or courts in enforcing the law.” Developments in the Law—Civil Commitment of the Mentally Ill, supra, at 1253-1254. If the standards in
§406 fail to give adequate warning of conduct which can result in commitment and fail to circumscribe the discretion of the trial court, the statute must be held unconstitutional. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Giaccio v. Pennsylvania, 382 U.S. 399 (1966).
We must start with the proposition that mental health is a proper subject for state regulation, and that a commitment procedure with appropriate safeguards is a valid means for achieving the governmental objectives. We must also, however, be cognizant of the fact that a lack of standards may result in the commitment of in-
The first finding necessary in order to commit under
The commitment procedure under
The narrow issue presented by appellant‘s vagueness argument, therefore, is whether the requirement that the
The federal statute and the statutes of other states require a finding of “dangerousness” in addition to mental illness. Although not found in
The order of commitment is reversed and appellant discharged.
While I join in Part I of Judge HOFFMAN‘S opinion, I am unable to agree that we should go on to treat the question of the constitutionality of the act. The traditional policy of American courts has been to avoid the decision of constitutional issues when the case at bar may be similarly resolved on other grounds. See, generally, 16 Am. Jur. 2d, Constitutional Law §111 (1964). Furthermore, as footnote 22 of Judge HOFFMAN‘S opinion indicates, the legislature currently has before it a bill which, on its face, appears to cure the defect which at least three of my brethren consider to be a denial of due process. Combined with the fact that striking down the instant law would cast doubt on the propriety of the incarceration of many mentally ill persons whose freedom would jeopardize their own safety as well as the safety of others, our resting the decision in the instant case on constitutional grounds would be singularly inappropriate.
DISSENTING OPINION BY VAN DER VOORT, J.:
Appellant, accused of violating his parole, was brought before Judge GRIFO upon his order for a hearing on September 19, 1973, at which time he was represented by counsel. Before any testimony was taken, the judge in-
The judge said he had a file and would “make them available to counsel.” He further informed counsel as follows: “I will set the matter for additional hearing after you have had an opportunity. You tell me and I will set up another date for a hearing and I am going to direct the Warden at the County Prison to segregate him.”2
On October 24, 1973, a petition for the examination of appellant by two psychiatrists under Section 408 of the Mental Health and Mental Retardation Act of 1966 was presented to Judge Clinton PALMER who made an order for the examination. The doctors tried to examine appellant on that day (October 24th) but were unsuccessful because the appellant refused to cooperate on the advice of his counsel. The next day (October 25th), which had been set for a hearing on the 408 petition, appellant filed a petition for a habeas corpus and a hearing thereon was held before Judge GRIFO who granted the writ and ordered the appellant discharged from the alleged parole violation. Immediately following the Judge‘s ruling the attorney for the Commonwealth moved to amend the
The hearing pursuant to Section 406(3) (ii) was held. Testimony was heard on behalf of the Commonwealth from a psychiatrist who had examined Appellant on July 9, 1973, and from a probation officer familiar with Appellant‘s case, both relating that Appellant remained dangerous and in need of care. Testimony was heard on Appellant‘s behalf from a psychiatrist at Allentown State Hospital, under whose care he had been from January 22 to March 12, 1973, and from a priest who had known him since April of 1973, both relating that the Appellant was no longer dangerous. As a result of this hearing, Appellant was ordered admitted to Muhlenberg Medical Center for examination, for a period not to exceed ten days, pursuant to
On October 30, 1973, appellant caused to be filed another petition for habeas corpus, arguing that the October 25 hearing had deprived him of his liberty without due process of law, in that he was neither served with nor given proper notice of the 406 petition for civil commitment. He also argued that the “Mental Health and Mental Retardation Act of 1966” is unconstitutional in that it does not warn a patient of his right against self-incrimination when talking with a psychiatrist or physician and does not require the proof-beyond-a-reasonable-doubt-standard for determination of the patient‘s mental condition being such that he is a danger to himself and others.
The appellant complains that in his commitment under
- A warning to the patient that he has a right to remain silent and not converse with physicians or psychiatrists which may be self-incriminatory; and
- That the patient‘s danger to himself and others must be proved beyond a reasonable doubt.
In considering proceedings under
- A petition is made by a person who would most likely be a responsible one setting forth his belief of the mental disability and the efforts made to secure an examination of the person involved by a physician;
- Upon consideration of the petition the Court, if it is satisfied as to the merits of the petition, issues a warrant to bring the person before the Court,3 fixes a
date for an immediate hearing, makes sure that the person is represented by counsel, (appointing counsel if necessary) and notifying the parties in interest;4 and - The Court holds a hearing at which hearing the Court determines whether or not there is probable cause either to hold an immediate examination by two physicians or to order the commitment of such person to a hospital or institution where a mental examination can be accomplished. After the mental examination has been accomplished the Court holds a second hearing as a result of which it determines whether or not the person is mentally ill and in need of care and treatment. If the person is adjudged to be mentally ill and in need of care and treatment the Court can then order the person to a facility where such care and treatment can be had. It may permit partial hospitalization or out-patient care.
In this process the person believed to be mentally disabled has representation by counsel at every critical stage of the proceeding. He and his counsel are given an opportunity to present evidence at the preliminary hearing and they have ten days in which to prepare additional evidence to present at the second hearing if they deem it advisable. Furthermore, in the instant case the appellant and his counsel had notice on October 24, 1973, of the presentation of the petition to the Court for a mental examination of the appellant under
The appellant claims that he has a right to remain silent and not converse with the examining physicians because what he might say may be self-incriminating and that he should have Miranda warnings of his right to remain silent given to him before the physician asked him any questions.
Proceedings under the Mental Health Act are not criminal investigations. They involve no attempt to charge the person involved with any criminal offense or wrong doing. There is no attempt to convict him nor to punish him. Certainly where the person is mentally disabled he could not understand nor appreciate Miranda silence warnings. A very essential ingredient to most psychiatric examinations is conversation with the party being examined. It is unrealistic to attempt to diminish communication between the psychiatrist and the person being examined by warning him to remain silent.
Appellant further claims that his being mentally disabled must be proven beyond a reasonable doubt. Here again, appellant attempts to equate proceedings under the Mental Health Act with criminal trials. Appellant cites the case of Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), in which the Court does equate civil commitment proceedings for mental disability with trials in criminal cases. Under our Mental Health Act hundreds of people have been committed to mental institutions for care and treatment for mental disability and many have been cured completely. Nearly all have been released after a matter of months of treatment and only hopeless cases have been detained for long periods. Experience
In view of the great number of mentally disabled people who have been helped by proceedings under the Mental Health Act, wherein the standard of proof of the person‘s mental disability has been by a preponderance of the evidence, I would hold that the standard of proof “beyond a reasonable doubt” does not apply in proceedings under the Act.
I would affirm the Order.
WATKINS, P. J., and PRICE, J., join in this dissenting opinion.
Commonwealth v. Clemson, Appellant.
Notes
If a “Miranda” warning were required, presumably the individual would be free to waive his right to remain silent and freely speak with the psychiatrist. This might pose great conceptual difficulties. Under the Act, a petition can be made under
It is well-settled that a waiver, to be effective, must be knowing, intelligent, and voluntary. Johnson v. Zerbst, 304 U.S. 458 (1938). If the Commonwealth accepts the subject‘s waiver, and proceeds to use the information he divulges to the psychiatrist at the commitment hearing, how could the Commonwealth possibly sustain its burden of proof on the issue of the subject‘s mental disability? If a person is capable of knowingly and intelligently waiving a fundamental right, can it be said that he suffers from a mental disability, which lessens his “capacity ... to use his customary self-control, judgment and discretion ...“?
The following excerpt is indicative of this position:
“The common distinguishing factor in civil commitment is aberrance. Before we commit a person we demand either that he act or think differently than we believe he should. Whether our label be inebriate, addict, psychopath, delinquent, or mentally diseased, the core concept is deviation from norms. Our frequently expressed value of individual autonomy, however, renders us unable to express those norms, however deeply they may be felt, in criminal proscriptions. We could not bring ourselves to outlaw senility, or manic behavior, or strange desires. Not only would this violate the common feeling that one is not a criminal if he is powerless to avoid the crime, but it might also reach conduct that most of us feel we have a right to engage in. ...
“What we are not willing to legislate, however, we have been willing to practice through the commitment process. That process has been used to reach two classes of persons, those who are mentally ill and dangerous to themselves or others, and those who are mentally ill and in need of care, custody or treatment. While those terms seem reasonably clear, on analysis that clarity evaporates. One need only glance at the diagnostic manual of the American Psychiatric Association to learn what an elastic concept mental illness is. ... Obviously, the definition of mental illness is left largely to the user and is dependent upon the norms of adjustment that he employs.” Livermore, Malmquist, and Meehl, On the Justifications for Civil Commitment, 117 U.Pa.L.Rev. 75, 78-80 (1968) (footnotes omitted).
An act to amend the Mental Health and Mental Retardation Act of 1966 was introduced during the 1973 session of the General Assembly of Pennsylvania under Senate Bill No. 170. Although this bill did not get out of committee, it is interesting to note the difference between its substantive provisions and those of
To replace the requirement of “mental illness,” Senate Bill No. 170 creates two categories of mentally ill individuals: (a) “Dangerously disabled person’ means a person who is severely mentally disabled ... by reason of having committed an act or acts constituting a violent assault upon another person and having been acquitted by reason of insanity on a charge based on such act or acts; or ... having been charged with such act or acts and having been found incompetent to stand trial.” (b) “Severe mental disability’ means a condition resulting from mental illness in which the capacity of a person 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 (1) he poses a clear and present danger of substantial bodily harm to himself or others, or (2) his physical or mental health is seriously threatened. A person shall pose a clear and present danger to himself only if within thirty days prior to his being examined under the provisions of this act or to the filing of a petition for involuntary treatment he has threatened or attempted suicide and he continues to evidence suicidal intent. A person shall pose a clear and present danger to others only if within thirty days prior to being examined under the provisions of this act or to the filing of a petition for involuntary treatment he has (I) inflicted or attempted to inflict substantial bodily harm on another, or (II) has been found incompetent to be tried or has been acquitted by reason of insanity on charges arising from such conduct and he continues to pose a clear and present danger to others by reason of his condition....”
The court can order commitment only “[u]pon a finding of clear and convincing evidence that the person is severely mentally disabled or dangerously disabled and in need of treatment. The court shall order that such person be taken to an appropriate treatment program in an approved facility. Appropriate treatment programs shall include programs of outpatient services or partial hospitalization. Inpatient services shall only be deemed appropriate after full consideration has been given to the less restrictive alternatives to inpatient services. 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.”
We have been informed that a successor bill to Senate Bill No. 170 will be introduced by Senator Coppersmith this year.