No. 84-487 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

IN THEMATTER OF THEMENTAL HEALTH OF G. S.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable JoelG. Roth,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: McAllister & Smith, Great Falls,Montana

For Respondent: J. Fred Bourdeau,CountyAttorney, Great Falls, Montana Barbara Claassen,Asst. Attorney General,Helena, Plontana

Submitted on Briefs: Feb. 14, 1985 Decided: April 8, 1985

Filed:

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ClerkMr. Chief Justice 2. A. Turnage delivered the Opinion of the Court.G. S. appeals an order of the Cascade County District Court finding him seriously mentally ill. G. S. was committed to three months hospitalization in theWarm Springs State Hospital. The Cascade County Attorney filed apetition for involuntary commitment on July 30, 1984. The petition was filed at the request of D. S., the father of appellant. The initial hearing on probable cause to commit was held July 31, 1984.At this hearing testimony was received that G. S. had suffered a relapse of previous mental illness in the several weeks preceding the filing of the petition. The appellant had.been observed by his father,with whom he was living, to be digging numerous holes in the backyard. Apparently, the a.ppel1.ant was attempting to find something of value that he had buried previously. Additionally, the appellant had become more violent. At one point G. S. threatened to take his father'shead off with an ironbar that he raised menacingly. On July 25, 1984,the appel-lantengaged his father in

a struggle in abedroom of their home. Therewas no apparent provocation for the fight,and the fatherreceived some minor cuts in defendinghimself and subduinghis son. At the initialhea-ring,in accordance with S 53-21-122, MCA, the court appointed an individual to be the friend of G. S., appointed counsel and named Dr. James Day to be the professional person to examine G. S. The commitment hearing was set forAugust 7, 1984. Theproblem in this commitment proceeding and the focus of the present a.ppea1 developed when the deputy countyattorney informed the court at the initial. hearing that Dr. Day would be out of town during the August 7 hearing. The attorney proposed that the court appoint twopsychiatrists as the statutorily required "professionalperson" such thatDr. Day could conduct the examination and the second psychiatrist, Dr. Hughes, could be present at the August 7 commitment hearing to testify on G. S.'s condition. The court assented to this proposal and both doctors were appointed as the professionalperson. Appellant's counsel did not object to the tandem appointment but requested that G. S. be allowed to retain his own psychiatrist to testify on his mental condition. The court granted this request, but appellant's efforts were later frustrated when the third psychiatrist refused to appear 

### on behalf of appellant. Dr. Day initially committed appellant to Deaconess Hospital on July 30, 1984. G. S. was placed in the security unit and was observed on a daily basis by Dr. Day. Observational notes were recorded and later submitted to the court. Dr. Hughes assumed Dr. Day's caseload, including G. S., on August 3, 1984. Before Dr. Hughes had an opportunity to perform a formal psychiatric evaluation, G. S. escaped from the hospital on August 5. The doctor had met briefly with appellant the day before, but the patient was unwilling to submit to an examination. Both appointed psychiatrists in this casewere viewed by G. S. as "agentsof theprosecution." Dr. Day and Dr. Hughes separately filed psychiatric reports containing a diagnosis of appel.lantlsmental condition with the District Court. These reports were ba.sed on their personal observations 

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# . S. during hishospitalization, their brief conversations,and thepatient's past medical history. G. S. had previously been under the care of both doctors. The commitment hearjng was held as scheduledAugust 7. The appellant was present, ashe had been returned to custody following his escape. D. S. testified on the violent and dangerous behavior of his son. Dr. Hughes, over the objection of appellant's counsel, testified that G. S. suffered from an acute exacerbation of abipolar disorder,manic type. This diagnosis is a form of schizo-affective schizophrenia. In the words of Dr. Hughes, the diagnosiswas based "uponmy knowledge of Dr. Day's abilities, and my knowledge of

[G. S.

### 'sl past history, and in reviewing Dr. Day

### 's report, and from visiting with [G. S.] on the morning ofAugust the 4th.

# .

# ." The lower court found that G. S. was suffering from a mental disorder and the mental disorder presented an imminent threat of injury to others,particularly his father. In an order dated August 7, the appellant was committed to Warm Springs StateHospital. The arguments appellant presents arebest framed as two issues: 1. Whether the court erred in an involuntary commitment proceedingby allowing aprofessional person to offer an opinion on the subject's mental condition, when the doctor did not formally examine the patient hut relied on another doctor's report who was notpresent at thehearing. 2. Whether there was sufficient evidence to support the court's finding that the appellantwas seriously mentally ill.Appellant's contentions focus on the language and proper interpretation of one code section,5 53-21-126,MCA. This section sets forth the procedures to be followed at a trial on apetition for commitment. As the statuteexplains, its purpose is limited! to the determination of whether the respondent (person requested to be committed) is seriously mentally ill. Theunderlyingdefinitionof seriouslymentally ill is whether the person is suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof. Section 53-21-102(14)

### ,MCA. The code provision at issue, S 53-21-126(3), MCA, provides that the professional person appointed by the court shal.1 be present at the trial and subject to cross-examination. Here, we have an unusual factual situationwhere two doctors were appointed, their examination responsibilities

were shared, the patient escaped before a formal examination

was completed and one doctor testified at trial. relying on the other's report. We find no impropriety in the arrangement whereby two doctors were appointed by the court such that one could testify on the patient's mental condition in the other's absence. This situation is not addressed by the statute and has not been judicially recognized in Montana. Of critical importance is that the doctor who did ul-timatelydiagnose G. S. 'smental conditionwas available for cross-examination at the commitment hearing. Since eppellant's attorney was given the opportunity to question Dr. Hughes and test the validity of his diagnosiswe find no derogation of the statute's intent.Appellant reads S 53-21-126(31, MCA, to mean 

### any professional person appointed by the court shall be present at the trial and subject to cross-examination. Were this the language of the statute we would resolve the issue differently. Since the statute reads the professional person appointed,we accept the arrangementpresented aspermissible andwill not reverse the court's order. The Court of Appeals of Eew Mexico was faced with a. similar issue in theMatter ofDean (N.M.App. 1980), 607P.2d 132. In that case, the court affirmed the District Court's order of involuntarycommitmentof the defendant. Thedefendant alleged error because the court had considered opinions of two absentdoctors. In order to commitan adultund-erthe New Mexico statutes, there arguably had to be testimony by themental health professional whose opinionwas reflected in the screening report as to the likelihood of defendant causing seriousharm to herself or others. The Court ofAppeals held that the legislaturehad not explicitly stated that the person or persons making the report must testify. What was found to be critical was that sound professional justification exist for the commitmentproceedings. Our statutes do require the professional person be present. However, the critical requirement of professional justification was satisfied here, where one of two appointed professionals was present. We hold that where two or more professionals are appointed pursuant to S 53-21-126(3), the presence of one at the commitment trial satisfies the statute. Appellant argues that it was error to allow Dr. Hughes to testifywhen the doctor relied on anotherdoctor's opinionand Dr. Hughes was not the attending physician. We d-onot accept this argument for severalreasons. Ru1.e 703, Mont.R.Evid., clearly provides that one doctor can statehis expert opinionbased on another doctor's report. The rule states: "The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonablyrelied uponby experts in aparticular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." This rulewas adoptedverbatim from the modern federal rubes. In the advisory committee's comment to the federal rule we find: "Facts or data upon which expert opinions are based may, under the rule,be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. R-heingold,The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489 (1962). Whether he must first relate his observations is treated 

### in Rule 705. The second source, presentation at the trial, also reflects existing practice. The technique may be the familiarhypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testi-mony the expert relied upon, when the latter technique is employed and the testimony is in conflict,may be resolved by resort to Rule 705. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictionsand to bring the judicialpractice into line with the practice of the experts themselves when not in court. Thus a physician 

## --- in his own practice basesxis diagnosis on information from numerous sources 

### - anF 

### - of considerable variety, including statements 

# ~atients and relatives, reports and Popinions f?m nurses, technicians 

# a other doctors, hospital records, and X rays. Most of them are admissible3 evidence, but only with the expenditure of substantial time in producing andexamining various authenticating witnesses. The physician makes 1-ife-anddeath decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.

### " (Emphasis supplied.) Advisory CommitteeNote, F.R.Evid. 703. Thus, reportsand opinions from other doctors are facts

or data for purposes of R.ule 703,Mont.R.Evid. Other decisions of this Court support this holding. Matter of C.M. (1981), 195 Mont. 171, 635 P.2d 273; Ankeny v. Grunstead (1976), 170 Mont. 128, 551 P.2d 1027; Klaus 

### v. ~lillberry (1971),157Mont. 277, 485 P.2d 54- Appellant cites a provision of the criminal code, 46-14-213(1)

## ,MCA, which provides that no one who has not examined the defendant is competent to testify on hismental condition. Appellant argues that the provision should be analogized to the case at bar and invoked to prevent the nonattending physician,Dr. Hughes, from testifying. A hearing on involuntary commitment is governed by the Montana Rules of Civil Procedure, fi 53-21-126(3), MCA; we find the cited criminal code provision inapplicable and appell.antls arguments on this issuewithoutmerit. The second issue ra-isedby appellant is whether substantial evidence supports his order of commitment. Appellant disputes the finding made by the court, pursuant to 53-21-126(4)(a),MCA, that he was suffering from a mental disorder. Our review of the record has identified several sources of evidence from which the District Court could haveconcluded that G. S. suffered a mental disorder. First, there is the oral testimony of Dr. Hughes. Secondly, there

are the various medical reports that were submitted by the psychiatristsand the hospital records. Appellant expressly asks this Court to review the weight of Dr. Hughes's testimony. This is not the role of an appellate court. The trier of fact makes findings and this Court will not disturb them unless shown to be clearly erroneous. Rule 52(b)

## ,M.R.Civ.P. The order of commitment is affirmed.

We concur: