No. 85-83 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

INTHE MATTER OF THE MENTAL HEALTH OF 11-C

APPEAL FROM: District Court of the Tenth JudicialDistrict, In and forthe County of Fergus, The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Robert E. LaFountain argued, Bil.1-ings,Montana

For Respondent: Jon A. Oldenburg argued, Deputy County Attorney, Lewistown, Montana

Submitted: September 24, 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. FJe affirm. 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 alsomade a recommendation to the Fergus County Attorney's office that the appellantbe committed. On May 20, 1983, prior to any commitment proceedings, the appellant was admitted to the Billings Deaconess. Her daughter accompanied her. The appellantwas admitted to the psychiatricward of thehospital. Shemaintains that shewas at all times under the belief that the examination by thepsychologist and the admission to Fillings Deaconesswere for physical examinationpurposes. By May 26, 1.983, a petition was filed in the District Court. TheDistrictCourt ordered that appellantbe 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

ownvolition. The county dismissed the commitment proceeding

on September 8, 1983. Itwas 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-tof the commitmentproceedings. Appellant's insurerpaid 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. TheDistrictCourtdenied the following costs: 1. Dr. Prill dental $ 28.00 2. Dr. Hull dental 60.00 3. Dr. Ryorth thyroid 506.00 4. BillingsRadiology colonx-ray 17.80 5. Dr. Pierce expertwitness psychiatrist 714.00 6. Mr. Brueggman attorney $1,088.00The 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 attorneywas not the original court-appointed counselbut one retainedatappellant's own expense. Section 53-21-117,MCA. The appellantappealed 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 treatmentas one ofherparamount rightsas apatient to receive prompt and. adequate medical treatment for any physical ailment and it is the duty of the health care facility to provide that careand treatmentat the expense of the county who is responsible for the costs of her physical disorderswhile 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 isentitled tohermedical 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 shewas admitted. The respondent doesnot 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 theMontana statutesdo not provide for the payment by the county for expensesincurred for treatment unrelated to the mental disorders for which aperson is committed. The respondent also argues thatMontana 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 thehospital appellantwasunder the confinementorder of the District Court. Itwas during this period that she received treatment forphysical 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 seriouslymentally 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-owedthe actual. expenses incurred in taking a person who is seriously mentally ill to the facility, asprovided by 7-32-2144. (2) The county of residence shall also pay all precommitmentexpenses,including transportationto a mental health facility, incurred in connection with the detention,examination, and precommi-tment custody of the respondent. The fact that a personis 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 incurredmust 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.rancethat paid a portion of the medical expenses. As to the remaining medical expenses

we do notbelieve that the legislatureintended the county to be liableunder the factspresented here. The courtproperly rejectedher claim forpayment of her attorney who was retained by the appellant after she dismissedher 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 countywhere the respondentresides. 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 DistrictCourt correctlydenied attorney fees. In refusing to compensate the appellant's expert witness theDistrictCourt 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 appointedby the court may secure a professional person of his own choiceto examine therespond.entand to testify at the hearing before the court or jury as to the resultsofhis examination. (2) If the person wishing to secure the testimony of a professional person isunable todo sobecause of financial reasonsand 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 examinationwho will be compensated from the public funds of the county where the respondent resides. (Emphasis added.1 The failure of the appellant to obtainprior approval of the court for expert witness fees precludes payment of compensation for that expertwitness. Affirmed. A

We Concur:

Justices