No. 84-487 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE MENTAL 

HEALTH OF G. S. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

McAllister & Smith, Great Falls, Montana 

For Respondent: 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

Barbara Claassen, Asst. Attorney General, Helena, 

Plontana 

Submitted on Briefs: Feb. 14, 1985 

Decided: April 8, 1985 

Filed: fipR 8 ., 1985 

Clerk 
Mr. 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 the Warm Springs State 

Hospital. 

The Cascade County Attorney filed a petition 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's head off with an iron bar that he raised menacingly. On July 25, 1984, the appel-lant engaged his father in 

a struggle in a bedroom of their home. There was no apparent 

provocation for the fight, and the father received some minor 

cuts in defending himself and subduing his son. 

At the initial hea-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 for August 7, 1984. 

The problem in this commitment proceeding and the focus 

of the present a.ppea1 developed when the deputy county 
attorney 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 two psychiatrists as 

the statutorily required "professional person" such that Dr. 

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 professional person. 

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 case were 

viewed by G. S. as "agents of the prosecution." 

Dr. Day and Dr. Hughes separately filed psychiatric 

reports containing a diagnosis of appel.lantls mental condition with the District Court. These reports were ba.sed on 

their personal observations of . S. during his 
hospitalization, their brief conversations, and the patient's 

past medical history. G. S. had previously been under the 

care of both doctors. 

The commitment hearjng was held as scheduled August 7. 

The appellant was present, as he 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 a bipolar disorder, manic type. 

This diagnosis is a form of schizo-af fective schizophrenia. 

In the words of Dr. Hughes, the diagnosis was based "upon my 

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 of August 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 State Hospital. 

The arguments appellant presents are best framed as two 

issues: 

1. Whether the court erred in an involuntary commitment proceeding by allowing a professional 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 not present at the hearing. 

2. Whether there was sufficient evidence to support 

the court's finding that the appellant was 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 a petition for commitment. As the statute explains, 

its purpose is limited! to the determination of whether the 

respondent (person requested to be committed) is seriously 

mentally ill. The underlying definition of seriously mentally 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 situation where 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-timately diagnose 

G. S. 's mental condition was 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 diagnosis we 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 arrangement presented as permissible 

and will not reverse the court's order. 

The Court of Appeals of Eew Mexico was faced with a. 

similar issue in the Matter of Dean (N.M.App. 1980), 607 P.2d 

132. In that case, the court affirmed the District Court's 

order of involuntary commitment of the defendant. The defendant alleged error because the court had considered opinions 

of two absent doctors. In order to commit an adult und-er the 

New Mexico statutes, there arguably had to be testimony by 

the mental health professional whose opinion was reflected in 

the screening report as to the likelihood of defendant causing serious harm to herself or others. The Court of Appeals 

held that the legislature had 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 commitment proceedings. 

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 testify when the doctor relied on another doctor's opinion 
and Dr. Hughes was not the attending physician. We d-o not 

accept this argument for several reasons. 

Ru1.e 703, Mont.R.Evid., clearly provides that one 

doctor can state his expert opinion based 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 reasonably relied 

upon by experts in a particular field in 

forming opinions or inferences upon the 

subject, the facts or data need not be 

admissible in evidence." 

This rule was adopted verbatim 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 familiar hypothetical 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 jurisdictions and to bring the judicial practice 

into line with the practice of the 

experts themselves when not in court. 

Thus a physician --- in his own practice 

bases xis 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 and 

examining various authenticating witnesses. The physician makes 1-if e-anddeath decisions in reliance upon them. 

His validation, expertly performed and 

subject to cross-examination, ought to 

suffice for judicial purposes. " (Emphasis supplied.) Advisory Committee Note, 

F.R.Evid. 703. 

Thus, reports and 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), 157 Mont. 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 his mental 

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 issue without merit. 

The second issue ra-ised by 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 have 
concluded 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 

psychiatrists and 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: