COA: Trial courts can waive right to be at commitment hearing

State statute allows trial courts to waive respondents’ right to be present at their mental health commitment hearings, though the use of such statute should be limited only to cases where the evidence shows respondents’ presence would be injurious to their mental health, the Indiana Court of Appeals ruled Thursday in a precedent-setting case.

The case, A.A. v. Eskenazi Health/Midtown CMHC, 49A02-1610-MH-2286, began in August 2016, when A.A.’s mother completed an application for her son’s emergency detention. A.A., 36, has been diagnosed with schizophrenia and had been previously hospitalized before his mother’s application.

The Marion Superior Court issued an order for A.A.’s commitment to Eskenazi Health’s Midtown Community Mental Health Clinic two days later, but on Sept. 6, Eskenazi filed a report following emergency detention.

At a subsequent civil commitment hearing, for which A.A. was not present, A.A.’s counsel told the court his client was “agitated” and did not answer the phone to discuss the hearing, so his presence was waived. After hearing testimony, the judge found A.A. suffered from schizophrenia and, as a result, was dangerous to others and gravely disabled. The trial court issued an order of regular commitment.

On appeal, A.A. presented two main issues: whether a mentally ill person who is involuntarily detained under emergency detention can voluntarily waive his right to appear at a commitment hearing, and whether the trial court or the person’s counsel can waive that right. During oral arguments in the case in late June, Bryan Babb, counsel for Eskenazi, urged the Indiana Court of Appeals to provide guidance on how attorneys should proceed in such cases.

In providing such guidance, Judge John Baker first wrote Thursday that a respondent for a civil commitment hearing cannot voluntarily waive their right to be present at a commitment hearing. Thus, A.A. could not have waived his right “because he was being involuntarily detained in a psychiatric ward,” where he was observed to be talking to himself, laughing, being aggressive and impulsive and having delusions, Baker said.

Further, it was error for A.A.’s counsel to waive his client’s right to be present at the hearing, Baker said, and “the trial court was too readily disposed to agree to waiver of A.A.’s right to be present without seeking more information about A.A.’s current mental and physical state.”

However, Indiana Code 12-26-2-2(b) does give trial courts the ability to waive such a right, though the provision of the statute has not been previously addressed by Indiana’s appellate courts, the judge said. The statute allows trial courts to waive an individual’s right to be present if their presence would be “injurious to the individual’s mental health or well-being.”

Dr. David Pollack, who treated A.A. at Eskenazi, testified that A.A. exhibited “menacing and agitated behavior,” including physical confrontations with staff members and other patients. Additionally, A.A.’s mother testified that she had to call police following a confrontation between A.A. and his brother. That evidence, Baker said, is enough to establish that A.A.’s presence at the hearing would have been injurious.

Additionally, the appellate court found, as a matter of first impression, that trial courts must determine whether to waive a respondent’s presence at the outset of the hearing based upon evidence that the respondent’s presence would be injurious. Finally, Baker noted that I.C. 12-26-2-2(b) should only be invoked “when the waiver of the right to be present is truly needed and supported by the evidence.”