J-S49020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

E.D.

Appellant No. 466 MDA 2018

Appeal from the Judgment of Sentence imposed March 6, 2018

In the Court of Common Pleas of Huntingdon County

Civil Division at No: CP-31-MD-0000044-2018

BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2018

Appellant, E.D., appeals from an order directing her to undergo 

continuing involuntary inpatient mental health treatment under 50 P.S. § 7305 

(“section 305”) of the Mental Health Procedures Act (“MHPA”). We affirm.

On November 10, 2017, Appellant, a physician, voluntarily entered the

behavioral health unit of J.C. Blair Memorial Hospital (“Hospital”) for inpatient 

treatment due to suicidal ideations. She was diagnosed with bipolar disorder 

with mixed features and anxiety. On November 17, 2017, the court ordered 

Appellant to undergo extended involuntary treatment under 50 P.S. § 7303 

(“section 303”). On December 7, 2017, the court ordered continued inpatient 

treatment for ninety days pursuant to 50 P.S. § 7304 (“section 304”). On 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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March 1, 2018, the Hospital filed a petition for continued involuntary inpatient 

treatment under section 305. 

During a section 305 hearing on March 6, 2018, Appellant’s treating 

psychiatrist, Dr. Qamar, testified that Appellant was depressed and suicidal. 

He stated that she had been on intensive treatment, including one-on-one and 

team counseling. On February 18, 2018, just one night after one-on-one 

counseling was discontinued, a Hospital nurse discovered that Appellant had 

made a noose with which to hang herself. Appellant told the nurse she 

planned to kill herself by hanging herself at the door that goes to a therapist’s 

office. Although she had signed safety plans in the past, she did not cooperate 

with required treatment. She had been a physician, but at the time of her 

treatment, her license in Maryland was revoked and her license in Delaware 

was suspended. She had nowhere to live and no one to help her should she 

have been discharged.

Because of the suicide attempt and history of noncompliance with 

treatment, Dr. Qamar believed Appellant to be a danger to herself and 

recommended placement in a state hospital until she was stable and safe 

enough to be discharged. Dr. Qamar testified that Appellant failed to comply 

with prior treatment plans. He was alarmed that he had never had a patient 

who had posed such a danger to herself as Appellant, stating to her attorney 

during the hearing: “Do you know how much we are working to keep her safe? 

You don’t . . . We have one-on-one with her, along with team. This is first 

time I have seen in my ten years’ training that we stop one-on-one for one 
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night and she forms a noose under her pillow.” N.T., 3/6/18, at 7. Dr. Qamar 

added that Appellant “still wants to kill herself.” Id. at 2. 

Appellant disagreed with the proposed plan to send her to the state 

hospital. She testified that her present course of treatment at the Hospital 

was best for her. She believed that the medication and counseling she had 

been receiving at the Hospital was helping her. She asked the trial court to 

allow her to commit herself voluntarily to inpatient treatment or pursue 

outpatient counseling. 

The court denied Appellant’s proposed course of future treatment, 

granted the section 305 petition, and ordered Appellant to undergo inpatient 

treatment for a period not to exceed 180 days at a state hospital. The order 

stated that Appellant “is severely mentally disabled within [the] meaning of 

the [MHPA] and presents clear and present danger to herself.” 

Appellant filed a timely appeal, and both Appellant and the court 

complied with Pa.R.A.P. 1925. The court wrote in its opinion: “Based on the 

evidence presented at hearing, [Appellant] is not only unable to care for her 

own safety, but poses a great risk to her life. As such, continued inpatient 

treatment is necessary.” Trial Ct. Op., 4/30/18, at 2.

Appellant raises one question in this appeal:

Did the Commonwealth prove by clear and convincing evidence 

that the Appellant required continuing involuntary mental health 

treatment at a state hospital, despite the fact that the 

Commonwealth’s sole witness admitted that the Appellant was 

willing to contract for safety, and the Appellant identified less 

restrictive means of treating her condition?
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Appellant’s Brief at 3. We conclude that the Commonwealth proved by clear 

and convincing evidence that Appellant required continuing involuntary mental 

health treatment at a state hospital.

Our recent decision in In Re S.M., 176 A.3d 927 (Pa. Super. 2017), 

provides an excellent overview of the MHPA that defines key terms within this 

act, details each stage of the commitment process, and demonstrates section 

305’s relationship to other provisions in the MHPA. We reprint S.M.’s overview 

in full below:

The MHPA provides for involuntary emergency examination and 

treatment of persons who are “severally mentally disabled and in 

need of immediate treatment.” 50 P.S. § 7301(a). It then 

authorizes increasingly long periods of commitment for such 

persons, balanced by increasing due process protections in 

recognition of the significant deprivations of liberty at stake. See 

In re A.J.N., 144 A.3d 130, 137 (Pa. Super. 2016) (highlighting 

MHPA’s purpose as “an enlightened legislative endeavor to strike 

a balance between the state’s valid interest in imposing and 

providing mental health treatment and the individual patient’s 

rights”) (quoting In re Hutchinson, [] 454 A.2d 1008, 1010 

([Pa.] 1982)); In re Ryan, 784 A.2d 803, 807 (Pa. Super. 2001) 

(“The legislative policy reflected in the [MHPA] is to require that 

strict conditions be satisfied before a court order for commitment 

shall be issued. Such a policy is in accord with the recognition 

that commitment entails a massive deprivation of liberty.”) 

(quoting Commonwealth v. Hubert, [] 430 A.2d 1160, 1162 

([Pa.] 1981)). Accordingly, “[i]n applying the [MHPA,] we must 

take a balanced approach and remain mindful of the patient’s due 

process and liberty interests, while at the same time permitting 

the mental health system to provide proper treatment to those 

involuntarily committed to its care.” In re S.L.W., 698 A.2d 90, 

94 (Pa. Super. 1997).

Under section 301(a):
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 A person is severely mentally disabled when, as a result of 

mental illness, his capacity to exercise self-control, judgment and 

discretion in the conduct of his affairs and social relations or to 

care for his own personal needs is so lessened that he poses a 

clear and present danger of harm to others or to himself.

50 P.S. § 7301(a). Section 301(b)(2) defines “clear and present 

danger” to oneself as follows:

Clear and present danger to himself shall be shown by establishing 

that within the past 30 days:

(i) the person has acted in such manner as to evidence that he 

would be unable, without care, supervision and the continued 

assistance of others, to satisfy his need for nourishment, personal 

or medical care, shelter, or self-protection and safety, and that 

there is a reasonable probability that death, serious bodily injury 

or serious physical debilitation would ensue within 30 days unless 

adequate treatment were afforded under this act; or

(ii) the person has attempted suicide and that there is the 

reasonable probability of suicide unless adequate treatment is 

afforded under this act. For the purposes of this subsection, a clear 

and present danger may be demonstrated by the proof that the 

person has made threats to commit suicide and has committed 

acts which are in furtherance of the threat to commit suicide; or

(iii) the person has substantially mutilated himself or attempted 

to mutilate himself substantially and that there is the reasonable 

probability of mutilation unless adequate treatment is afforded 

under this act. For the purposes of this subsection, a clear and 

present danger shall be established by proof that the person has 

made threats to commit mutilation and has committed acts which 

are in furtherance of the threat to commit mutilation.

Id. § 7301(b)(2).

Section 302 provides for emergency examination of persons, 

which

 may be undertaken at a treatment facility upon the certification 

of a physician stating the need for such examination; or upon a 

warrant issued by the county administrator authorizing such 

examination; or without a warrant upon application by a physician 
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or other authorized person who has personally observed conduct 

showing the need for such examination.

Id. § 7302(a). Under section 302(b), a physician must examine 

the person “within two hours of arrival . . . to determine if the 

person is severely mentally disabled within the meaning of section 

301 and in need of immediate treatment.” Id. § 7302(b) (internal 

footnote omitted). If the physician so finds, then “treatment shall 

be begun immediately.” Id. If not, then “the person shall be 

discharged and returned to such place as he may reasonably 

direct.” Id. Section 302 allows a person to be committed up to 

120 hours. Id. § 7302(d).

When a treatment “facility determines that the need for 

emergency treatment is likely to extend beyond 120 hours,”

section 303 provides that the facility may apply to have that 

involuntary commitment extended up to 20 days. Id. § 7303(a), 

(h). The facility files an application for such commitment with the 

court of common pleas, which then appoints an attorney for the 

person unless it appears “that the person can afford, and desires 

to have, private representation.” Id. § 7303(b). “Within 24 hours 

after the application is filed, an informal hearing shall be 

conducted by a judge or . . . [MHRO.]” Id. The court or MHRO 

must keep the record generated by these proceedings for at least 

one year. Id. § 7303(c)(2). Where the judge or MHRO 

“determines that extended involuntary emergency treatment is 

necessary,” a “certification shall be filed with the director of the 

facility and a copy served on the person, such other parties as the 

person requested to be notified pursuant to section 302(c), and 

on counsel.” Id. § 7303(d)(1), (e).

Should an MHRO certify that an extended section 303 commitment 

is appropriate, the committed person may “petition to the court of 

common pleas for review of the certification.” Id. § 7303(g). The 

court must hold a hearing “within 72 hours after the petition is 

filed unless a continuance is requested by the person’s counsel.”

Id. “The hearing shall include a review of the certification and 

such evidence as the court may receive or require.” Id. “If the 

court determines that further involuntary treatment is necessary 

and that the procedures prescribed by the [MHPA] have been 

followed, it shall deny the petition. Otherwise, the person shall be 

discharged.” Id.
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Section 304 of the MHPA allows for court-ordered involuntary 

treatment up to 90 days. Id. § 7304(g). Petitions for involuntary 

commitment under section 304 may be made for persons already 

committed under section 302 or 303, see id. § 7304(b), as well 

as for persons not currently committed, see id. § 7304(c). 

Subsection (a) describes who may be committed under section 

304:

(1) A person who is severely mentally disabled and in need of 

treatment, as defined in section 301(a), may be made subject to 

court-ordered involuntary treatment upon a determination of clear 

and present danger under section 301(b)(1) (serious bodily harm 

to others), or section 301(b)(2)(i) (inability to care for himself, 

creating a danger of death or serious harm to himself), or 

301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (selfmutilation).

(2) Where a petition is filed for a person already subject to 

involuntary treatment, it shall be sufficient to represent, and upon 

hearing to reestablish, that the conduct originally required by 

section 301 in fact occurred, and that his condition continues to 

evidence a clear and present danger to himself or others. In such 

event, it shall not be necessary to show the reoccurrence of 

dangerous conduct, either harmful or debilitating, within the past 

30 days.

Id. § 7304(a)(1),(2) (internal footnote omitted). For persons 

already subject to treatment under sections 303, 304, or 305, the 

county administrator or the director of the facility may petition for 

court-ordered involuntary treatment. Id. § 7304(b)(1). For 

persons not already in involuntary treatment, “[a]ny responsible 

party may file a petition in the court of common pleas requesting 

court-ordered involuntary treatment for any person . . . for whom 

application could be made under [section 304](a).” Id. § 

7304(c)(1).

As with section 303, the subject of the petition is entitled to 

assistance of counsel and a hearing on the petition. Id. § 

7304(b), (c). If the person is currently committed, the hearing 

shall be held within five days. Id. § 7304(b)(4). If the person is 

not currently committed, then the person shall be served a copy 

of the petition “at least three days before the hearing.” Id. § 

7304(c)(4). Persons subject to such a hearing have the right “to 

the assistance of an expert in mental health,” the right to silence, 
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“the right to confront and cross-examine all witnesses and to 

present evidence in his own behalf,” and the right to a private 

hearing upon request. Id. § 7304(e)(1)-(4). “A stenographic or 

other sufficient record [of the hearing] shall be made[.]” Id. § 

7304(e)(5). The court must impound the record, which may be 

“obtained or examined only upon the request of the person or his 

counsel or by order of the court on good cause shown.” Id. As 

with section 303, “[t]he hearing shall be conducted by a judge or 

by a [MHRO] and may be held at a location other than a 

courthouse when doing so appears to be in the best interest of the 

person.” Id. § 7304(e)(6). If the judge or MHRO finds by

 clear and convincing evidence that the person is severely 

mentally disabled and in need of treatment and subject to 

subsection (a), an order shall be entered directing treatment of 

the person in an approved facility as an inpatient or an outpatient, 

or a combination of such treatment as the director of the facility 

shall from time to time determine.

Id. § 7304(f). Inpatient treatment may be ordered “only after full 

consideration has been given to less restrictive alternatives.” Id.

As with section 303, if the determination is made by an MHRO, 

the person has a right to appeal the certification to the court of 

common pleas. Id. § 7109(b). This review process is identical to 

the section 303 certification review process. Id.

Under section 305, the trial court may extend a period of 

involuntary treatment under section 304(g) or 305 for up 

to 180 days. Id. § 7305(a). To commit a person under 

section 305, the trial court must make the requisite 

findings in section 304(a) and (b), and must further find “a 

need for continuing involuntary treatment as shown by 

conduct during the person’s most recent period of courtordered treatment.” Id. Persons found dangerous to 

themselves under section 301(b)(2) are “subject to an 

additional period of involuntary full-time inpatient 

treatment only if [they] ha[ve] first been released to a less 

restrictive alternative.” Id. However, that requirement 

does not apply where the judge or MHRO determines “that 

such release would not be in the person’s best interest.” 

Id. As with sections 303 and 304, if the determination is 

made by MHRO certification, the person may seek review 

in the court of common pleas. Id. § 7109.
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Id. at 930-34 (emphasis added).

“In reviewing a trial court order for involuntary commitment, we must 

determine whether there is evidence in the record to justify the court’s 

findings.” Id. at 935. “Although we must accept the trial court’s findings of 

fact that have support in the record, we are not bound by its legal conclusions 

from those facts.” Id.

The issue in this case is whether there was sufficient evidence to warrant 

Appellant’s continued involuntary treatment under section 305. To satisfy 

section 305, there must be “clear and convincing evidence of the need for 

continuing involuntary treatment as shown by conduct during the person’s 

most recent period of court-ordered treatment.” Id. “Our Supreme Court has 

defined clear and convincing evidence as ‘testimony that is so clear, direct, 

weighty, and convincing as to enable the trier of fact to come to a clear 

conviction, without hesitation, of the truth of the precise facts in issue.’” In 

re S.T.S., Jr., 76 A.3d 24, 38 (Pa. Super. 2013) (quoting In re R.I.S., 36 

A.3d 567, 572 (Pa. 2011)). “[T]he clear and convincing evidence test ‘has 

been described as an ‘intermediate’ test, which is more exacting than a 

preponderance of the evidence test, but less exacting than proof beyond a 

reasonable doubt.’” Id. (quoting Commonwealth v. Meals, 912 A.2d 213, 

219 (Pa. 2006). 

Our analysis in Commonwealth v. Romett, 538 A.2d 1339 (Pa. Super. 

1988), guides our review of section 305. In Romett, we reviewed a section 
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305 recommitment that was originally based on the appellant’s violent 

behavior towards family members. Her commitment was extended three 

times before the section 305 hearing. At that hearing, she “violently slapped 

a nurse across the face.” Id. at 1341. Her treating psychiatrist testified that 

“[she] had also recently shown assaultive behavior toward him.” Id. The 

psychiatrist testified that she had a mental illness “manifested in delusions, 

poor impulse control, and beliefs that others are ‘out to get her.’” Id. The 

psychiatrist opined that “cessation of [her] treatment would reasonably result 

in future assaultive behavior . . . [and she] posed a danger to others rather 

than to herself.” Id. Based on this evidence, the trial court ordered her 

involuntarily committed for 30 days of inpatient treatment, followed by 150 

days of outpatient treatment. We affirmed, holding:

[F]or a person to be recommitted for an additional period of 

treatment, it need not be established that the person has inflicted 

or attempted to inflict serious bodily harm upon another within 

the past thirty days, as required for the original commitment. The 

[MHPA] specifically states that on recommitment it is not 

necessary to show that the patient committed an overt act within 

30 days of the hearing. It is necessary however for the court to 

find that within the patient’s most recent period of 

institutionalization, the patient’s conduct demonstrated the need 

for continuing involuntary treatment, . . . i.e. his condition 

continues to evidence a clear and present danger to himself or 

others ....

Id. at 1341–42. We concluded that clear and convincing evidence supported 

the trial court’s finding that the appellant posed a clear and present danger to 

others, since she exhibited violent conduct which resulted in her initial 

commitment, continued to do so during the commitment period, and had a 
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“diagnosis as a paranoid schizophrenic with delusions that others are 

threatening her, together with [a] prognosis that her assaultive behavior 

would continue without further treatment.” Id.

Whereas the record in Romett showed that the appellant continued to 

pose a clear and present danger to others, the record herein demonstrates 

that Appellant continued to pose a clear and present danger to herself. 

Appellant was admitted to the Hospital on November 10, 2017 due to suicidal 

ideations. The court ordered further involuntary treatment on November 17, 

2017 and an additional ninety days of involuntary commitment during a 

section 304 hearing on December 17, 2017. On March 6, 2018, the court 

convened a section 305 hearing to determine whether further involuntary 

commitment was necessary. Appellant’s treating psychiatrist testified that 

Appellant constructed a noose on February 18, 2018, during her most recent 

period of hospitalization and just one day after one-on-one counseling ended. 

When a nurse discovered the noose, Appellant described the manner in which 

she intended to hang herself. Appellant’s psychiatrist testified that in his ten 

years of experience, he had never had a patient attempt suicide so quickly 

after the discontinuation of treatment. He added that Appellant was noncompliant with all past safety plans, and that if she were discharged, she had

nowhere to go and nobody to help her. 

Thus, we agree with the trial court that there was clear and convincing 

evidence that (1) Appellant committed an overt act during her most recent 
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period of hospitalization, and (2) she continues to pose a clear and present 

danger to herself. This evidence was sufficient to uphold the order

involuntarily committing Appellant to 180 days of inpatient treatment at a 

state hospital. We conclude that Appellant’s challenge to the sufficiency of 

the evidence is devoid of merit. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/2018