In re Miller
Lead Opinion
This case presents two principal issues for our review: (1) Were appellant’s due-process rights adequately protected in the
I
When a person faces commitment to a mental hospital against his or her will, the individual’s right against involuntary confinement depriving him or her of liberty must be balanced against the state’s interest in committing those who are mentally ill. It is well recognized that an involuntary civil commitment constitutes a significant deprivation of liberty requiring due-process protection. Addington v. Texas (1979),
R.C. Chapter 5122 contemplates that either of two procedures may be followed when involuntary commitment is sought. One procedure is an emergency hospitalization pursuant to guidelines basically set forth in
The factor that distinguishes an emergency involuntary commitment from a non-emergency one is the method by which the procedure is initiated. An emergency commitment is initiated by a person being taken into custody without first being afforded a hearing. See
Non-emergency commitment under
Even though non-emergency hospitalization is preferred, the statutory scheme recognizes that, in some circumstances, emergency hospitalization is unavoidable. Due-process rights must be protected, whichever procedure for involuntary commitment is chosen. “ * * * [I]t is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomenon] ‘stigma’ or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.” Addington,
In the case at bar, appellant’s involuntary commitment was not initiated by an affidavit, but by his being taken into custody by police officers.
A
When
B
When a person is involuntarily committed,
C
After a person alleged to be mentally ill and subject to court-ordered hospitalization is transported involuntarily to a hospital,
Appellant argues that only the chief clinical officer can file the affidavit in an emergency commitment situation, and because in this case a social worker filed the affidavit, the jurisdiction of the probate court was never properly invoked. We note that “any person or persons” may file an affidavit to begin the commitment process in a non-emergency hospitalization under R.C. 5122.-11. However, in an emergency hospitalization, when the person is already in custody, the chief clinical officer is required to file the affidavit. See
Appellee contends that
Thus, while it is arguably true that the attending physician could file an
Under no interpretation does
Assuming an affidavit is properly filed in an emergency commitment situation, so that the jurisdiction of the court is correctly invoked, the commitment procedure becomes similar to a non-emergency procedure, except that the person is already in custody at the hospital. Therefore, the affidavit filed pursuant to
Thus, the statutory scheme indicates that the affidavit shquld list concrete facts, and that the accompanying certificate of examination should contain an opinion rendered by the examining psychiatrist, or by a psychologist and a physician. The court then determines whether probable cause is present after a consideration of the statements in the affidavit and in the certificate. If
In the present case, both the affidavit executed by the social worker and the certificate executed by the psychiatrist, Dr. Fernandez, contain the identical statement:
“Mr. Kenneth Miller is a 38 year old [Caucasian, married male, admitted on an emergency basis on November 18, 1989. The patient has been progressively confused, delusional, and paranoid. His sense of reality is altered, grandiouse [sic] and at times, out of touch with reality.”
This statement, while it may be the type of opinion that is appropriate for a psychiatrist’s certificate under the statute, is insufficient to meet the requirements for the affidavit contained in
A “fact” is “[a] thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence; an actual happening in time or space or an event mental or physical; that which has taken place.” Black’s Law Dictionary (6 Ed.1990) 591. Therefore, an affidavit of mental illness pursuant to
Since this matter was not dismissed, but rather proceeded to a hearing, this court will consider appellant’s assertion that the testimony of his psychiatrist was improperly used against him.
Ohio’s physician-patient privilege is statutory in nature, and is codified at
An early justification often given for the privilege was the stigma at one time associated with anyone who suffered from a disease of any kind, physical or mental. See Note, The Ohio Physician-Patient Privilege: Modified, Revised, and Defined (1989), 49 Ohio St.L.J. 1147, 1149. Today, because most physical diseases (with some exceptions) do not carry a stigma with them, a
Unfortunately, however, mental illness still carries with it a stigma that can have adverse consequences for the individual. Addington, supra,
On the other hand, we also realize that society has an interest in ensuring that those mentally ill patients who present a danger to themselves or others be hospitalized. The treating psychotherapist is often in the best position to determine whether hospitalization is necessary. A psychotherapist can be placed in a dilemma when it becomes clear that one of his or her patients is likely to commit a violent act. Another factor weighing against the physician-patient privilege in this setting is that civil commitments are instituted to benefit a patient who may be unable to make competent decisions. It can be argued that because the psychotherapist is testifying for the patient’s own benefit, the privilege should not apply. See Stone & Liebman, Testimonial Privileges (1983) 400-401, (Supp.1990) 274, Section 7.25.
Responding to these and other considerations, a number of states expressly render the privilege inapplicable in civil commitment proceedings. See, e.g., 29B Cal.Evid.Code Section 1004 (West 1966). Other states reach the same result by providing that the privilege does not apply when a person’s mental condition is at issue. See, e.g., Ill.Stat.Ann. Chapter 110, Paragraph 8-802(4) (Smith-Hurd Cum.1991). See, also, Matter of T.C.F. (Iowa 1987),
Ohio’s physician-patient privilege statute makes no exception for civil commitment proceedings. This means that the privilege applies in the appropriate commitment situation involving a patient and his or her psychotherapist. The court of appeals correctly recognized that
Since
Perhaps a different result would arise if the testimony of Dr. Fernandez at the hearing had been limited to facts he became aware of during the course of examining appellant for this commitment only.
It is foreseeable that considerable difficulties could arise when a court limits the testimony of a physician who is both a treating and examining physician solely to his or her role as an examining physician. The scope of the physician’s testimony would constantly be open to challenge. While there may be a situation in which a treating psychiatrist may act as an examining physician and testify on behalf of the state at a commitment hearing, we believe that this practice places a chilling effect upon the relationship between physician and patient. Therefore, the best procedure to be followed during an
Additionally, the statutory scheme contained in R.C. Chapter 5122 allows a psychotherapist to take some actions that a patient facing involuntary commitment will sometimes feel are not-in his or her best interests. For example, a psychiatrist is one of the parties who may transport a person to a hospital and commit him or her on an emergency involuntary basis when the psychiatrist has reason to believe that the patient is mentally ill subject to hospitalization and represents a substantial risk of harm to self or others. See
We do not view the taking of these actions by a psychiatrist as “testimony” for
Appellant contends that
Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.
Notes
. Appellant contends that no emergency existed at the time he was transported to the hospital, and that any attempt to involuntarily commit him should have commenced with an affidavit. A judge or referee at that time would have had to decide if probable cause to detain was present. See
. “Chief clinical officer” is defined in
“ ‘Chief clinical officer’ means the medical director of a hospital, or a community mental health agency, or a board of alcohol, drug addition, and mental health services, or, if there is no medical director, the licensed physician responsible for the treatment a hospital or community mental health agency provides. The chief clinical officer may delegate to the attending physician responsible for a patient’s care the duties imposed on the chief clinical officer by this chapter. Within a community mental health agency, the chief clinical officer shall be designated by the governing body of the agency and shall be a licensed physician or licensed clinical psychologist who supervises diagnostic and treatment services. A licensed physician or licensed clinical psychologist designated by the chief clinical officer may perform the duties and accept the responsibilities of the chief clinical officer in his absence.”
. We again note that if this had been a non-emergency commitment the probate court could have accepted the affidavit of “any person or persons” to invoke its jurisdiction. See
.
“ ‘Mentally ill person subject to hospitalization by court order’ means a mentally ill person who, because of his illness:
“(1) Represents a substantial risk of physical harm to himself as manifested by evidence of threats of, or attempts at, suicide or serious self-inflicted bodily harm;
“(2) Represents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness;
“(3) Represents a substantial and immediate risk of serious physical impairment or injury to himself as manifested by evidence that he is unable to provide for and is not providing for his basic physical needs because of his mental illness and that appropriate provision for such needs cannot be made immediately available in the community; or
“(4) Would benefit from treatment in a hospital for his mental illness and is in need of such treatment as manifested by evidence of behavior that creates a grave and imminent risk to substantial rights of others or himself.”
. Appellant also contends that various other due-process violations occurred in the course of his commitment. The record is unclear as to what actually occurred during many of the events that surrounded his being taken into custody and his hospitalization. One reason for the incompleteness of the record is that the referee issued no findings of fact or conclusions of law
Problems such as these, encountered by a reviewing court when it attempts to analyze whether due process was afforded to an individual facing involuntary hospitalization, illustrate that due-process rights are best protected by adhering as closely as possible to the statutory procedure when the events are occurring.
.
“The following persons shall not testify in certain respects:
“(B)(1) A physician * * *, concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division and division (B)(2) of this section * * *.
“The testimonial privilege under this division is waived, and a physician * * * may testify or may be compelled to testify in a civil action, * * * under the following circumstances:
“(a) If the patient * * * gives express consent;
“(b) If the patient is deceased, the spouse of the patient or his executor or administrator of his estate gives express consent;
“(c) If a medical claim, * * * as defined in section 2305.11 of the Revised Code [relating to medical malpractice actions], an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code [workers’ compensation] is filed by the patient,
“(2) If the testimonial privilege described in division (B)(1) of this section is waived as provided in division (B)(1)(c) of this section, a physician * * * may be compelled to testify * * * only as to a communication made to him by the patient in question in that relation, or his advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the medical claim, * * * action for wrongful death, other civil action, or claim under Chapter 4123. of the Revised Code.”
. The record is unclear whether an admission examination was ever performed by Dr. Fernandez.
Concurrence in Part
concurring in part and dissenting in part. I concur in paragraph one of the syllabus and in Parts 1(A), 1(B) and 1(C) of the opinion.
This was an emergency involuntary commitment carried out by officers of the law.
I also agree that the provisions of
I am also in agreement that the person who filed the
Having agreed with the majority upon the foregoing matters, I conclude that the application was not properly filed, and accordingly that the jurisdiction of the court to make this commitment had not been secured.
I am in disagreement with the majority concerning the insufficiency of the purported affidavit as discussed in Part 1(D). Not only have the categories upon which a court may base its jurisdiction been set forth in the affidavit, but also, in general terms, Miller’s condition as perceived by the affiant giving rise to a probable cause of the belief of mental illness of Miller. There is no need for a dissertation on the subject. The more detailed facts and psychiatric evidence were presented later at the court hearing.
Also, I cannot agree with the conclusion and supportive discussion contained in Part II, in that I believe it to be counterproductive to both the basic purpose of the physician-patient privilege in Ohio as well as contrary to the best public policy. As stated by the majority, the purpose of
From a public policy standpoint, as properly noted by the majority, society has an interest in ensuring that those mentally ill patients who present a danger to themselves, or others, be hospitalized. More importantly in this respect is that a person’s treating psychiatrist, such as Dr. Fernandez here who had treated Miller since 1980, is most likely to be in the best position to determine whether hospitalization is necessary and proper from a medical point of view, both for the benefit of the patient and the public at large. The appellant’s expert witness, Dr. Jitendra Cupala, also a psychiatrist, testified that he had only been with Miller for forty-five minutes and had spent only one and one-half hours reviewing all of the records prior to testifying, and had not talked to c any members of Miller’s family. It would seem patently clear which of these professionals would have a superior understanding of whether Miller met the criteria for court-ordered hbspitalization {i.e., Dr. Fernandez).
Some states, as noted by the majority, either by way of statute or evidentiary rule, have provided that the physician-patient privilege does not apply in a civil-commitment proceeding. An amendment to
Based upon all of the above, I would concur in the judgment and accordingly reverse the court of appeals.