No. 13719 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

IN THE MATTER OF CURTIS SONSTENG, Respondent-andAppellant.

Appeal from: District Court of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: James Dorr Johnson argued, Warm Springs,Montana Steven Bunch, Helena, Montana For Respondent: Mark P. Sullivan argued, Butte, Montana Nick A. Rotering, Helena, Montana

Submitted: November 28, 1977 Decided

### :D-E&

# c. ,



### .-

-: Filed: --

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.
TheMontana Department of Institutions, by state psychologist Katherine Gallagher,comenced this action in the District Court, Deer Lodge County,pursuant to Section 38-1312,R.C.M. 1947, petitioning for extended detention of respondent at Warm Springs State Hospital. Petitioner sought a declaration that respondent

was "seriously mentally ill" and should be committed to a mental health facility for a period not to exceed three months. Respondent Curtis Sonsteng was first committed to Warn Springsby judicial order in 1951. Although released on convalescent leave in 1959,respondent was recommitted in 1962. Respondentwas last committed on February 

### 8,1964by an order of theValley County District Court. He has remained atWarm Springs since 1964. Currently, respondent is 

### 48years of age. At some time prior to June 1976,respondentwas placed under the care and supervision of Katherine Gallagher, a staff psychologist atWarm Springs and certified "professional person"
as defined in section 38-1302,R.C.M. 1947. Section 38-1312,R.C.M. 1947,requires that any person judged mentally illprior to the enactment of Title 38,Chapter 

### 13 shall, one year following the effective date of the act,be released unless a petition for an extended detention order is filed. On June 29, 1976,Gallagher prepared and filed the required petition, togetherwith a written report and evaluation of respondent's mental and physical conditionas required by section 38-1306(6), R.C.M. 1947, (now section 38-1306(3) by amendment of 1977).Upon application of counsel for respondent,the district judge appointed Dr. Ben Peters of Anaconda, Montana, to conduct an independent evaluationof respondent. Respondent was detained during the period of evaluation. On October 

### 4,1976,Dr. Peters prepared a report concerning respondent. On December 

### 2, 1976,Dr. Avelina Dimarucot,a Warm Springs psychiatrist,prepared and filed an additional evaluation report
on respondent's condition. At the hearing held December 3, 1976,Gallagher testified respondent was, inher opinion, seriously mentally ill and a danger to himself and others. She concluded that further detention for sixmonths would be in the best interests of the patient. Dr. Dimarucot, inher testimony, classified respondent as "psychotic" and a danger to himself and others. Respondent offered no testimony,professional or otherwise, nor did respondent offer the report of the independent evaluator,Dr. Peters. By its findings

## ,conclusionsand final order dakdDecember 3, 1976, the District Court found that alternatives other than continued commitment were considered and rejected due to the seriousnessof respondent's mental illness,although the precise a1ternativeswere not enumerated. The district judge concluded respondent was "seriouslymentally ill" and ordered commitment be continued for a period not to exceed sixmonths. Respondent appeals from that order. The issues raised on this appeal are: 1. Did the District Court err inpermitting, over objection, the written report of the professional person concerning the mental and physical condition of the patient to become a part of the record?2. Did the District Court err inpermitting the testimony of respondent's institutional psychologist and psychiatrist, in derogation of the psychologist/patient and physician/patient privileges? 3, Was there sufficient evidence to support the conclusion that respondentwas "seriously mentally ill" beyond a reasonable doubt? Issue 1. Respondent first contends the District Court erred in failing to exclude from all consideration the reports of the professionalpersons submitted in the instant case pursuant to section 38-1306(6), 

### R.C.M. 1947. On the one hand,respondent maintains such reportsmust be properly entered into evidence prior to theirbeing considered. Yet, on the otherhand,he characterizes the reports as inherently inadmissible hearsay, incapable of admission in any event. Such reports typically contain brief medical histories compiled from the hospital files of the various patients. Such inclusion, we believe, is the foundation for respondent's argument in this regard. Thus, it is asserted the reports are inadmissiblehearsay in that a portion of the material contained in the reports is gleaned fromaccumulated documents inhospital files consisting of unsworn statements. The resulting inability of respondent to cross-examine the authors of such statements is posited as a denial of due process. This argumentmisses the mark. Submissionof such reports at somepoint in an involuntary commitmentproceeding is provided forby virtually every state statutory scheme. Illinoisprovides that hearing pursuant to
a petition for involuntary commitment must be commenced by the filing of a certificateof a physician or psychologist. Ill. Rev. Stat., Chap. 91 1/2, 58-3. InNew York, admission canbe madeupon a medical certificationalone,with the burden of petitioning for a hearing on the matter being shifted, for the most part, to the patient. 34AMcKinney,New YorkMental Hygiene Law $31.27 et.seq..California, considered to be one of the forerunners in the reform of civil commitmentprocedures,provides, by the 1969 Lanterman-Petris-ShortAct, for a professionalperson's submission to the court of affidavits serving a function similar to the reports submitted inMontana. 73A Cal.Welfare & Institutions Code, 

### $5 5301 et.seq. The controlling Montana legislative provision in this regard is section 38-1306(6), R.C.M. 1947. This sectionprovided inpertinent part: 

# "*

# * * the professional person in charge of the patient may petition the court for extension of the detentionperiod. Thepetition shallbe accompanied by a written report and evaluation of the patient's mental and physical condition. The report shall describe any tests and evaluation devices which have been employed in evaluating the patient, the course of treatmentwhich has been undertaken for the patient and the future course of treatment anticipated by the professionalperson. 

# ** *'I Inanalyzing the propriety of consideration of the report by the district judge, it is significant to consider the role af the report in the context of the Montana involuntary comrnitment procedure generally. For this purpose, an analogy canbe found in the procedure whereby an affidavit in support of a request for leave to file an Information is filedwith a District Court by a county attorney in a criminal case. Both the report and affidavit are grounded in and compiled pursuant to information derived fromothers. Theweight and relative veracity attached to such documents is based primarily upon the high

measure of professional responsibility traditionally inherent in the offices of the persons submitting the documents to thecourt. Their purpose, then, is in furnishing reasonable grounds for initiationof a legal proceeding. The documents are in neither case offered as substantiveproof of that sought to be demonstrated in the proceeding. As such, the question of the admissibility of the reports or their alleged hearsay character is in fact a nullity. Respondent is correct in asserting that involuntary commitment constitutes a deprivation of libertywhich a state cannot accomplish without due process of law. O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 45

### L ed 2d 396 (1975); Specht

v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18

### L ed 2d 326

(1967). It is well settled that due process entails the right to cross-examination. Spechtv. Patterson, supra. We find sufficient protection of a patient's due process rights regarding the limited considerationof the report in the fact that the professional person compiling the report is required to be present in court and subject to cross-examination. Sections 38-1306(6), 38-1306(4), 38-1305(7), R.C.M. 1947. Respondent attempts to establish a parallel between consideration of the report of the professional person in a commitment hearing and considerationof socialwelfare service investigative reports in custody cases. Recent decisions of this Court require the authors of suchwelfare reports to testify at the custody hearing, subject to cross-examination,prior to any consideration of the reports. In re Declaring Swan Children Youths inNeed of Care, Mont

# . -3 567 P.2d 898, 34 St.Rep. 390 (1977); In re Mont

# . Moyer, -9 567 P.2d 47,48,49, 34 St.Rep. 682 (1977); Ronchetto v. Ronchetto, 

## - Mont

# . , 567 P.2d 456, 34 St.Rep. 797 (1977). However, it is significant to note that inMoyer,this Court expressly approved the provision of section 10-1311(3), R.C.M. 1947, which specifically authorizes the filing of a welfare department report support of a petition for temporary custody. Moreover, Moyer is authority for the proposition that

a DistrictCourt isnot in error in receiving a welfare report where the record fails to indicate the court considered the report inmaking the actual custody determination. In the instant case, the argument favoring reception of the report is stronger than inMoyer. Here, as inMoyer, the record inno manner suggeststhe District Court considered the reports filed indeermining respondent was seriously mentally ill. Both psychologist Gallagher and psychiatrist Dimarucot testified atthe commitment hearing, and were subject to fullcross-examination concerning both their professional opinions and the respectivebash thereof. Further, submission of the report of a professional person isnot merely permitted, but is in fact mandated by the express language of section 38-1306(6), R.C.M. 1947. Respondent's position regarding such reports cannot be sustained

# . Issue 2. Respondent argues that a professional person who has treated a given patient cannot be examined as to any information acquired in the course of evaluation and treatment of such patient, under the psychologist/patient and physician/ patient privileges set forth at sections 66-3212 and 93-701-4, R.C.M. 1947. The alternative, it ismaintained, is to require the professionalperson to advise the patient of his right to remain silentprior to the commencement of any interactionbetween them. 

# IThe deprivation of liberty entailedby an involuntary commitment has been justified by two distinct exercises of power by the state. The state, by virtue of the common law, retains the authority to act as "'the general guardian of all infants, idiots and lunatics"'. Hawaii v. Standard OilCo., 405 U.S. 251, 257, 92 S.Ct. 885, 31L ed 2d 184 (1972). Acting

as parens patriae the state isvested with both the power and the duty topromote the interests and welfare of its citizens. As a sovereign, the statealso possesses plenary power to make laws and regulations for the protection of public health, safety, welfare and morals, commonly referred to as police power. Jacobson v. Massachusetts, 197 U.S. 11, 24,25, 25 S.Ct. 368, 49 L.Ed. 643 (1905). The power of parens patriae, when exercised inaccordance with the requirements of substantive due process, has been held tojustify commitment of a person who is shown tohave a mental disorder depriving him of the ability to protect his lifeorhealth, or rendering him dangerous tohimself. In

reBallay, 482 F.2d 648, 658,659 (D.C.Cir.1973). Likewise, the police power justifies commitment of a person whose mental disorder has resulted in injury toothers, orposes the imminent threat thereof. Jacob- v. Massachusetts, supra. As indicated by the definition of "seriously mentally ill" inMontana commitment statutes, a commitment may be predicated

on either orboth of the above powers, subject to the same strict procedural requirements. Section 38-1302(13), R.C.M. 1947. Here

we note that Montana's involuntary commitment statues, effective July 1, 1975, aremost progressive inthis regard.

### It is manifest that the state interests entailed by the two powers necessitate dispensing with the various forms of physician/ patient privilege. Californiamaintains an express exception to the privilege in instances where the psychotherapist has cause to believe the patient suffers froma mental or emotional condition renderinghim dangerous to himself or to the person or property of another. 29B Cal.Code 51024. The legislative intent in creating the exception to the privilege requirement is contained in the official law revision comment to California's 51024: 

# "**

# *Although this exceptionmight inhibit the relationshipbetween the patient and his psychotherapist to a limited extent, it is essential that appropriate actionbe taken if the psychotherapist becomes convinced during the course of treatment that the patient is a menace to himself or others and the patient refuses to permit the psychotherapist to make the disclosure necessary to prevent the threatened danger.'' A broader exception,applicable where the psychotherapist in the course of treatment, determines the patient is inneed of hospitalization,has been recommended by the Commissioners on Uniform State Laws. 13U.L.A. Uniform Rules of Evidence, 5503(d) (1). InMontana, the statutes require the presence of the professionalperson at the hearing for commitment or extended detention and corequisite availability of suchprofessional person for crossexamination evidence,which manifests a legislative intent to create an exception to the privileged communications rule. Sections 38-1305(7), 38-1306(4), 38-1306(6), R.C.M. 1947. Precedent for such an exception canbe found in the Montana Code of Criminal Procedure, which renders admissible statements of

an examining psychiatrist on the issue of the mental condition of the accused,whether privileged or not. Section 95-509, 

### R.C.M. 1947.Indeed, to uphold the assertion of the privilege in commitmentproceedingswould be to frustrate the state interests involved in the commitment procedure, rendering a patient's true mental condition incapable of proof. The sole persons qualified to render an educated psychological or medical opinion as to the mental condition of a patient and its actual and potential manifestations are those psychologists and psychiatristswho have been engaged in evaluation and treatment of that patient. Neither judgesnor administrative personnel are as qualified

as psychologists and psychiatrists to render judgments concerning

a patient's mental condition. In re Bye, 115 Cal.Rptr. 382, 524 P.2d 854 (1974). We conclude that mental health professionals

on the hospital staff qualify as "neutral factfinders.'I Accordingly,

we recognize an exception to the privilege in cases such as the instant one. Issue 3. Respondent finally challenges the sufficiency of the state's proof of serious mental illness in the instant case. The statehas the burden ofproving in an original commitment

or extended detention proceeding the following elements: 

### 1. Mental disorder. 

### 2. Resulting self-inflicted injury or injury to others

or the imminent threat thereof, or inability to protect life or health. Sections 38-1305(7), 38-1306(4), 38-1306(6), 38-1302(13), R.C.M. 1947. The standard of proof applicable in suchproceedings is proof beyond a reasonable doubt. Section 38-1306(6). Proof of a mental disorder,defect or deficiency alone is

an insufficient basis for involuntary confinement. OtConnor

### v. Donaldson,supra.Respondent argues, in essence, that the elements of "dangerousness" and "inability to protect life or health" must be proved by direct evidence of overt acts on the part of the patient

# . At the hearing,both professional persons, the solewitnesses, testified respondent had a mental disorder renderinghim a danger to himself or others. Witness Gallagher testified respondent suffers from schizophrenia and is seriously mentally ill. Witness Dimarucot concluded respondent is psychotic. Respondent failed to cross-examine the witnesses at any length and offeredno testimony in opposition to such conclusions. While proof of various acts of a patient tending to establish "dangerou~ness'~ and "inability to protect life or health" through the testimony of persons related to or acquaintedwith the patient is ultimately desirable, such is not required,nor even possible in every case. In cases such as the instant one, the statemay establish a prima facie case through the expert conclusions of qualified professionalpersons. Testimony of such experts is not objectionable merely because it embraces an ultimate issue to be determined by the trier of fact. McGuire v. Nelson, 167Mont. 188, 199, 536 P.2d 768 (1975). Here, the state effectively established a prima facie case that respondent was seriouslymentally ill. Theburden thereupon shifted to respondent to overcome the case against him. Gibbons

v. Huntsinger, 105Mont. 562, 74P.2d 443 (1937). In the absence ofproof to the contrary, the District Court cannot be placed in error for its conclusion.The order of the District Court isaffirmed.

We Concur:

Justices.



# .. .

# ..

# .... 

# . Mr. Justice Frank I. Haswell concurring: I concur in the result.

Justice.