In Re: R.B.

J-S32042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: R.B. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: R.B. :

:

:

:

:

: No. 484 MDA 2022

Appeal from the Order Entered March 3, 2022

In the Court of Common Pleas of Berks County Civil Division at No(s):

50-2022-MH

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 8, 2022

R.B. appeals from the order, entered in the Court of Common Pleas of

Berks County, affirming the certification for extended involuntary commitment

under section 7303 of the Mental Health Procedures Act (“MHPA”). 1 Upon

careful review, we affirm.

R.B. was admitted to Brooke Glen Behavioral Hospital (“Brooke Glen”)

on February 24, 2022, pursuant to Brooke Glen’s petition for involuntary

mental health treatment under 50 P.S. § 7302. On February 25, 2022, a

petition to extend R.B.’s court-ordered treatment by ten days was filed

pursuant to 50 P.S. § 7303 (“Section 303”). On March 2, 2022, a section 303

hearing was held telephonically2 before Mental Health Review Officer

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1 50 P.S. §§ 7101-7503.

2 An audio recording of the hearing has been made a part of the certified

record on appeal.

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(“MHRO”) Terry Weller, Esquire, at which R.B. was represented by court-

appointed counsel, Andrew Scott, Esquire, of the Berks County Public

Defender’s Office.

At the hearing, R.B.’s treating psychiatrist, Daniela Krausz, M.D.,

testified that R.B. originally came to the emergency room because he was

experiencing chest pains and felt as though he was unable to function. She

testified that R.B. had been under a significant amount of stress since his

house burned down and he was struggling to deal with his insurance company

and contractors. At the time he was admitted to Brooke Glen, R.B. was not

eating or sleeping enough, and was suffering from paranoid beliefs about

being followed and investigated by his insurance company. Doctor Krausz

diagnosed R.B. with psychosis NOS (not otherwise specified). She attempted

to treat him with medication to help with his sleeping and his mood, but he

refused. She stated that R.B. participated in group and other activities, but

that staff was having difficulty engaging him. Doctor Krausz testified that R.B.

was not aggressive or assaultive in his behavior, except “a little . . . at the

beginning.” MRHO Hearing, 3/2/22, at 7:47. Doctor Krausz testified that, at

the time of the hearing, R.B. was sleeping a little better and eating “some,”

although he did not like the food available to him. She testified that R.B. still

believed that he was being followed, had poor insight and limited judgment,

and was a danger to himself due to his lack of self-care. Doctor Krausz opined

that medicine would benefit R.B. by making him less paranoid, helping him

sleep better, and decreasing his anxiety. Doctor Krausz ultimately opined that

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Brooke Glen was the least restrictive facility for R.B. and recommended further

treatment there of up to ten days.

R.B. testified that he had gone to the emergency room because he felt

overwhelmed by his current situation—his house burned down in 2019 and,

since then, he has been unsuccessfully trying to work with contractors,

adjustors, and his insurance company to rebuild. He believed that, by going

to the hospital, he could obtain a doctor’s note and get time off from work to

focus on dealing with his situation. He stated that he has been unable to sleep

due to everything that is going on, as well as the fact that he and his family

are being evicted from their apartment. He attributed his weight loss to a

recent bout of COVID-19, which caused him to be out of work for two weeks.

Following the conclusion of the testimony, the MHRO stated that, while

he was not “hearing a great deal,” id. at 16:59, R.B.’s stressors remained,

which concerned him. Accordingly, in the hope that Dr. Krausz could “get

something set up for [R.B.],” id. at 17:05, the MHRO issued a certification

finding that R.B. was severely mentally disabled and was in need of continued

inpatient treatment for a period not to exceed five days.

On March 3, 2022, R.B. filed a petition for review of certification for

extended involuntary commitment in the Court of Common Pleas pursuant to

section 7109 of the MHPA. R.B. requested that the audio recording of the

section 303 hearing be used in lieu of a formal de novo hearing. Upon review

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of the recording, the trial court affirmed the extended involuntary certification

on March 3, 2022.3

R.B. filed a timely notice of appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He

raises the following claim for our review:4

Whether [Brooke Glen] failed to present sufficient evidence to

support the involuntary commitment of R.B. where R.B.’s treating

psychiatrist could not articulate any clear or present danger [that]

R.B. posed to himself or others and could not say that R.B. posed

a substantial risk of serious bodily injury or death within thirty

days in a less restrictive environment.

Brief of Appellant, at 4.

The standard of review for an involuntary commitment order under the

MHPA is to “determine whether there is evidence in the record to justify the

court’s findings.” In re S.M., 176 A.3d 927, 935 (Pa. Super. 2017).

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3R.B. was ultimately discharged from treatment at Brooke Glen on March 4,

2022.

4 Although R.B.’s commitment order has expired, his appeal is not moot.

We recognize that an important liberty interest is at stake in all

involuntary commitments and by their nature, most commitment

orders expire prior to appellate review. Since a finding of

mootness would allow such claims to go unchallenged in most, if

not all, cases, we continue to hear these matters and, where the

facts allow, we have authority to vacate a commitment order and

direct that the record be expunged.

In re R.D., 739 A.2d 548, 553 (Pa. Super. 1999) (citations omitted); see

also In re J.M., 726 A.2d 1041, 1045 n.6 (Pa. 1999) (holding appeals from

expired involuntary commitment orders not moot as issues raised on appeal

capable of repetition and may evade review). Accordingly, the appeal is

properly before us.

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“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.

We have explained the involuntary commitment process under the

MHPA as follows.

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”). 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).

In re S.M., 176 A.3d at 930–31.

Under subsection 301(a) of the MHPA:

Whenever a person is severely mentally disabled and in need of

immediate treatment, he may be made subject to involuntary

emergency examination and treatment. 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, as defined in subsection (b)[.]

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

to oneself, in relevant part, as follows:

Clear and present danger to himself shall be shown by establishing

that within the past 30 days:

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(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[.]

Id. at § 7301(b)(2)(i). Section 302 provides for emergency examination and

treatment 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

or other authorized person who has personally observed conduct

showing the need for such examination.

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

person “within two hours of arrival in order to determine if the person is

severely mentally disabled within the meaning of [sub]section 301(b) and in

need of immediate treatment.” Id. at § 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,” or five days, section 303

provides that the facility may apply to extend the involuntary commitment for

up to 20 days. Id. at § 7303(a), (h). The facility files an application for

extended commitment with the court of common pleas, which then appoints

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an attorney for the person unless it appears “that the person can afford, and

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

after the application is filed, an informal hearing shall be conducted by a judge

or [MHRO].” Id.

If the judge or MHRO certifies that an extended section 303 commitment

is appropriate, the committed person may petition the court of common pleas

for review of the certification. Id. at § 7303(g). The trial 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.

The MHPA is to be strictly construed. Commonwealth v. Moyer, 595

A.2d 1177, 1179 (Pa. Super. 1991) (citation omitted).

Recognizing the substantial curtailment of liberty inherent to an

involuntary commitment, our Supreme Court has cautioned that

the courts must strictly interpret and adhere to the statutory

requirements for commitment. In interpreting section

301(b)(2)(i), this Court has held that a mere finding of senility is

insufficient to establish that a person is a “clear and present

danger” to himself. See In re Remley, [] 471 A.2d 514 ([Pa.

Super.] 1984). Without evidence that the individual would die or

suffer serious bodily injury or serious physical debilitation in the

immediate future unless he was committed, the statutory

requirement had not been met. Similarly, . . . it is not sufficient

to find only that the person is in need of mental health services.

The court must also establish that there is a reasonable probability

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of death, serious injury[,] or serious physical debilitation to order

commitment.

In re T.T., 875 A.2d 1123, 1126–27 (Pa. Super. 2005).

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

R.B.’s continued involuntary treatment under section 303. “The burden is on

the petitioner to prove the requisite statutory grounds by clear and convincing

evidence.” In re S.M., 176 A.3d at 937 (citation and quotation marks

omitted). “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.” Id. (citations and internal quotation marks

omitted).

R.B. argues that Dr. Krausz could not testify that he posed a “clear and

present danger to himself,” Brief of Appellant, at 11, where she “could not say

one way or the other if the rate at which R.B. was eating and sleeping would

cause death or serious bodily injury within thirty days.” Id. at 16. He notes

that “Dr. Krausz did not testify that the amount R.B. was eating was not

enough to sustain life.” Id. at 17. R.B. argues that “Dr. Krausz’s assertion

that she did not have enough information to determine if [R.B.] would pose a

risk to himself or others is clearly deficient, as it does not even qualify as

speculation, let alone reasonable speculation.” Id. at 17. R.B. asserts that,

while he “could probably have benefitted from some sort of treatment and

assistance[,] . . . this is not the purpose of the MHPA,” which requires a finding

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that he is a clear and present danger to himself before depriving him of his

liberty. Id. at 18.

In support of his claim, R.B. relies on this Court’s decision in In re S.M.,

supra. There, S.M., who suffered from schizoaffective bipolar disorder, was

committed primarily on the basis that she was not taking her medication in

therapeutic doses, as she believed that her illness “was better treated through

homeopathic remedies[.]” Id. at 938. Following her recommittal by an

MHRO, S.M. filed an appeal de novo to the court of common pleas. The

evidence showed that S.M. believed that “various hospital and state officials

were conspiring and colluding with her mother to keep her involuntarily

committed.” Id. Testimony also revealed that S.M. had gone several days

without eating, went several nights without sleep, and made racial slurs to

other residents. Id. at 939. Although her treating psychiatrist testified that

S.M.’s illness and unwillingness to properly take her medication affected her

judgment, he did not testify that S.M. posed a danger to herself or that there

was “a reasonable probability that death, serious bodily injury[,] or serious

physical debilitation would ensue within 30 days unless adequate treatment

were afforded.” Id. Instead, “the essence of his testimony was that S.M.

would be better off taking her medications in therapeutic doses, and that the

best way to ensure that she did so was through continued involuntary

commitment.” Id. The court of common pleas affirmed the MHRO’s

certification.

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This Court reversed the order of the trial court, finding that the evidence

did not show by clear and convincing evidence that S.M. posed a clear and

present danger to herself, and noting that “the serious deprivations of liberty

authorized by the MHPA demand that such deprivations be justified through

strict compliance with statutes substantive and procedural requirements.” Id.

R.B. argues that the evidence adduced at his MHRO hearing and

reviewed by the trial court on de novo appeal was similar to that presented to

the court in In re S.M. Specifically, like S.M., R.B. refused medication—

although unlike S.M., he had never before been on medication—and both

experienced disruptions in eating and sleeping habits. Likewise, both R.B. and

S.M. had paranoid beliefs. However, R.B. argues that “[p]aranoia alone is not

sufficient to involuntarily commit an individual under the MHPA without some

sort of evidence that the person might act in such a way . . . that would place

himself or others in danger, and that is not established here.” Brief of

Appellant, at 16. Moreover, Dr. Krausz acknowledged that R.B.’s sleep habits

had improved—without medication—during the short time he had been

hospitalized, and he argues that “his refusal to take medication[,] by itself[,]

is not enough to establish that he poses a clear and present danger to

himself.” Id. at 15.

After our review of the record in this matter, we are constrained to

conclude that the evidence was sufficient to support the trial court’s affirmance

of the MHRO’s order extending R.B.’s involuntary commitment by five days.

This case is, admittedly, a close call. The MHRO himself admitted that he had

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“not hear[d] a great deal,” but extended the commitment for 5 days in the

hopes that Dr. Krausz could “get him set up with something as an outpatient

or something with medication.” MRHO Hearing, 3/2/22, at 16:59, 17:05.

However, viewed in its totality, the evidence clearly and convincingly

demonstrates that there is a reasonable probability that R.B. would suffer

serious bodily injury or death within thirty days if untreated. We note that:

in establishing the “clear and convincing” standard of proof for

involuntary treatment:

Whether the individual is mentally ill and dangerous to

[either himself or] others . . . turns on the meaning of the

facts which must be interpreted by expert psychiatrists and

psychologists. . . .

The subtleties and nuances of psychiatric diagnosis render

certainties beyond reach in most situations. . . . Within the

medical discipline, the traditional standard . . . is a

“reasonable medical certainty[.]” [The] “beyond a

reasonable doubt” standard would forc[e] reject[ion] [of]

commitment for many patients desperately in need of

institutionalized psychiatric care.

Commonwealth v. Helms, 506 A.2d 1384, 1389 (Pa. Super. 1986), quoting

Addington v. Texas, 441 U.S. 418, 429–30 (1979) (citations omitted)

(emphasis added). The legislature did not require indisputable proof that an

individual’s behavior would be repeated, but rather proof of the “probability”

of such an event, which denotes “a chance stronger than possibility but falling

short of certainty.” Helms, 506 A.2d at 1389, quoting Webster’s New World

Dictionary, Coll. Ed. (1966). Thus, a petitioner must present evidence

demonstrating a substantial likelihood that the behavior will recur if the

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individual is not involuntarily committed. Id. We believe that standard has

been met here.

Although Dr. Krausz could not say with absolute certainty that death or

serious bodily injury would result within thirty days, the trial court deemed

her testimony sufficient to find that R.B. posed a clear and present danger to

himself in the absence of further treatment, as contemplated by the statute:

Dr. Krausz testified that [R.B.] presented to the emergency

department with “chest pains,” which she believed were caused

by “severe anxiety,” as well as “allegations of some paranoid

delusions” and that he was not sleeping or eating. Though Dr.

Krausz testified that [R.B.] was participating in his unit’s

treatment schedule, including group therapy, she raised concerns

regarding medication compliance upon release due to R.B.

refusing any medication during his treatment. Further, in

response to a question from the [MRHO], the doctor described []

R.B.’s insight and judgment as “poor,” stating that these factors

contributed to her concerns that he would pose a risk of harm or

danger to himself due to lack of self-care. [Doctor] Krausz

testified that Brooke Glen is the least restrictive facility for R.B.

“because he has failed to fully engage in treatment,” continues to

hold paranoid beliefs about being followed, and refused all

medication, which she believes is vital to helping [R.B.] feel “less

paranoid, sleep better[,] and reduce the anxiety he has.”

Together these factors led Dr. Krausz to believe that, to the best

of her knowledge, without continued inpatient care, R.B. would

pose a substantial risk of serious bodily injury to himself in a less

restrictive environment. She was unable to conclusively state

whether this injury would happen within the thirty days prescribed

by statute, but it was her belief that it would happen.

Trial Court Opinion, 4/26/22, at 2.

We find R.B.’s reliance on In re S.M. to be misplaced. While the facts

there are similar to those in the matter sub judice, the Court in In re S.M.

found the evidence supporting the commitment insufficient primarily because

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the doctor “did not testify that S.M. posed a danger to herself or that there

was ‘a reasonable probability that death, serious bodily injury or serious

physical debilitation would ensue within 30 days unless adequate treatment

were afforded.’” In re S.M., 176 A.3d at 939. Conversely, here, Dr. Krausz

testified that R.B.’s behavior would continue without further treatment and

that he was a danger to himself because of his lack of self-care.

In sum, the record supports the trial court’s factual findings, and we can

discern no error of law. In re S.M., supra. Doctor Krausz’s testimony

demonstrated that, without further treatment—including medication—R.B.

would continue to pose a clear and present danger to himself through his lack

of self-care, poor insight, and limited judgment, particularly where the

stressors that caused the behavior continue to exist. See MRHO Hearing,

3/2/22, at 5:59 (Dr. Krausz testifying “what happened before is going to

continue without addressing it—not sleeping, not eating”). Accordingly, we

affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/2022

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