Opinion
2018 CA 1760
04-17-2019
IN THE MATTER OF THE COMMITMENT OF DERRICK COLE
Laura Picard Pineville, Louisiana Attorney for Appellant Derrick Cole Stephanie Borghardt Jenna G. Young Neal R. Elliot, Jr. Baton Rouge, Louisiana Attorneys for Appellee Louisiana Department of Health, Office of Behavior Health
On Appeal from the Twentieth Judicial District Court In and for the Parish of East Feliciana State of Louisiana
Docket No. JC-3157 Honorable William G. Carmichael, Judge Presiding Laura Picard
Pineville, Louisiana Attorney for Appellant
Derrick Cole Stephanie Borghardt
Jenna G. Young
Neal R. Elliot, Jr.
Baton Rouge, Louisiana Attorneys for Appellee
Louisiana Department of Health,
Office of Behavior Health BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
This is an appeal from the civil commitment of Derrick Cole by the Louisiana Department of Health (LDH). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
At the time the commitment proceeding was filed, Cole was a twenty-nine-year-old male with a history of bipolar disorder, intermittent explosive disorder, and an intellectual disability. For approximately seven years, beginning January 21, 2010, Cole resided at Pinecrest Supports and Services in Pineville, Louisiana (Pinecrest), but the facility was no longer able to control his behavior. On March 31, 2017, he was admitted to Central State Hospital (Central) for stabilization. While at Central, Cole exhibited aggressive behavior toward the staff and was extremely impulsive, resulting in the facility's medical director filing a petition for judicial commitment on May 18, 2017, in the 9th Judicial District Court for Rapides Parish, Docket No. 5762 (9th JDC action). Cole remained at Central for approximately a year before he was discharged to a less restrictive environment.
Cole testified that he lived at Pinecrest for seven years. From the record before us, it appears that he was judicially committed on two separate occasions, February 23, 2016 and September 6, 2016, by the 9th Judicial District Court for Rapides Parish in Docket Nos. 5699 and 5723, which resulted in his residing at Central State Hospital. He appeared to be conditionally discharged on October 11, 2016 from Central State Hospital.
It is unclear from the record whether the less restrictive environment in which Cole was placed was a group home or his own apartment with support staff, as the record contains evidence as to both living arrangements. It is clear that pursuant to the Developmental Disability Law, La. R.S. 28:451.1-455.2, Heaven On Earth Network, Inc. (Heaven On Earth) provided Cole support in the less restrictive environment. Heaven On Earth eventually became unable to assist Cole due to his behavior. Cole exhibited aggressive and violent behavior, made threatening statements, and the police had to be called on several occasions. There was also evidence that Cole ran away, was involved in fights, became suicidal, drank chemicals, and threatened Heaven On Earth's staff. By correspondence dated July 12, 2018, Heaven On Earth notified Cole that it could no longer be his provider due to his aggressive and violent behavior and that the last date it would provide services would be August 9, 2018. The plan coordinator, Medical Resource and Guidance, was also informed of this decision. Cole was further instructed of his right to appeal the decision. Medical Resource and Guidance attempted to find Cole another provider, but was unsuccessful.
Louisiana Revised Statutes 28:451.2(22) defines a "provider" as "a person, partnership, corporation, state agency, or other entity that provides developmental disabilities services and receives either state or federal funds or both." LDH is permitted to contract with public or private providers to provide developmental disabilities services. La. R.S. 28:451.5(A). LDH is required to supply a person in need of developmental disabilities services with a list of all providers of the services for which the person meets the criteria of that service. La. R.S. 28:454.2(A)(4).
Louisiana Revised Statutes R.S. 28:451.2(21) defines a "plan coordinator" as "the individual who is responsible for guiding the support team in development of the support plan for the person with a disability. The plan coordinator assures that the goals identified by the person are addressed in the support plan." The "support plan" is defined as:
[A]n individualized plan that coordinates supports and services to assist the person in reaching his desired outcomes and reflects the vision, personal preferences, life goals, and diverse formal and informal support needs of the person. The plan is developed by the person and his support team. Persons with developmental disabilities, family members and others chosen by the person or the family, and those legally empowered to make decisions for the person, are the primary decision makers regarding services and supports such persons receive, including the choice of available living options. La. R.S. 28:451.2(27).
Cole testified that after an altercation with the Heaven On Earth staff, the police were called and took him to Lake Charles Memorial Hospital (Lake Charles Memorial). Cole was subsequently admitted to Lake Charles Memorial pursuant to a Physician's Emergency Certificate (PEC) dated August 10, 2018, and a Coroner's Emergency Certificate (CEC) dated August 11, 2018, for refusing to take his medications, as well as hostility and homicidal threats to the group home staff. On August 17, 2018, Lake Charles Memorial requested that Cole be admitted to East Louisiana Mental Health System (ELMHS). Cole was admitted to ELMHS pursuant to a PEC dated August 17, 2018, signed by Dr. Muhummad Ahmed, a board certified psychiatrist who treated Cole at ELMHS. Dr. Ahmed testified that Lake Charles Memorial's employees could not control Cole's behavior, noting in the PEC that Cole had a history of bipolar disorder, intermittent explosive disorder, and intellectual disability. A CEC was signed on August 18, 2018. On August 20, 2018, the assistant clinical director of ELMHS filed the current petition for judicial commitment in the 20th Judicial District Court, Parish of East Feliciana (20th JDC action).
See La. R.S. 28:53(B).
See La. R.S. 28:53(G).
Although Dr. Ahmed refers to the hospital as "St. Charles Hospital," it appears from the record that the correct name is Lake Charles Memorial Hospital.
Dr. Ahmed testified that when Cole arrived at ELMHS, he was extremely irritated and having paranoid and suicidal thoughts. Dr. Ahmed noted that Cole had a long history of bipolar disorder and cognitive impairment. Because of the violent and threatening statements Cole made while at the group home, at Lake Charles Memorial, and to Dr. Ahmed, Cole was assigned someone to be arms-length from him at all times. Cole eventually improved to the point that he only needed continuous visual observation, but he continued to act out and was involved in several fights. Dr. Ahmed reduced the continuous visual observation when Cole agreed not to act out. However, Dr. Ahmed testified that Cole remained impulsive and violent.
Dr. Ahmed further testified that bipolar disorder is a serious mental illness and that Cole is a danger to himself and others and is gravely disabled. Cole also suffers from cognitive impairment. Dr. Ahmed believed that Cole's violent, impulsive behaviors would continue and that he would not take his medication in a less restrictive environment.
Cole testified that he had lived at Pinecrest for seven years. He was transferred to Central after he had an incident that involved throwing chairs. He testified that security personnel then "ran over him" or "ran into him" with a John Deere all-terrain vehicle, causing him to scrape his arm resulting in treatment at a hospital. Cole stated that he was discharged from Pinecrest to Central involuntarily after he was forced to sign a piece of paper, even though he testified that he can barely read. Central eventually discharged Cole, and he returned to his own apartment, with staff of Heaven On Earth. He stated that the staff either slept or left him on his own. He had numerous conflicts with the staff and claimed he sprayed a fire extinguisher at one of them who was trying to fight him. The police were called, and he was taken to Lake Charles Memorial. Lake Charles Memorial placed him in the Archer Institute, the psychiatric ward of the hospital. He became uncooperative and was transferred to ELMHS. Cole claims that a doctor at Lake Charles Memorial told him that he was discharged.
The trial court found that Cole suffers from a mental illness that causes him to be gravely disabled, dangerous to others, and dangerous to himself. Cole was committed to the custody of LDH. The trial court signed a judgment in accordance with its oral ruling on September 7, 2018, committing Cole to the custody of LDH pursuant to La. R.S 28:1 et seq., for a period not to exceed one hundred and eighty days. The judgment continued Cole's placement at ELMHS pursuant to La. R.S. 28:25.1 until "appropriate placement options are available through [LDH]." It is from this judgment that Cole appeals.
LAW AND DISCUSSION
Exception of Lis Pendens
Cole's first assignment of error is that the trial court erred in denying his exception of lis pendens. The September 7, 2018 judgment contains no mention of the exception of lis pendens, even though the trial court orally denied same. Although the trial court's judgment does not address the exception, silence in a judgment as to any issue before the trial court is deemed a rejection of that demand or issue. The exception of lis pendens is thus deemed denied. Naramore v. Aikman, 2017-1621 (La. App. 1 Cir. 6/4/18), 252 So. 3d 935, 944. Therefore, we address the denial of the exception of lis pendens on appeal.
The instant petition for judicial commitment was filed on August 20, 2018, in the 20th JDC by the assistant clinical director of ELMHS. Cole filed the exception of lis pendens in the 20th JDC on August 22, 2018, asserting that another legal action for commitment was pending against him in the 9th JDC. Therefore, Cole asserted that the suit filed in the 20th JDC should be dismissed pursuant to La. C.C.P. art. 531.
The medical director at Central had previously filed the 9th JDC action on May 18, 2017. In that proceeding, Cole filed an answer and reconventional demand, claiming that his placement in a facility should be determined pursuant to La. R.S. 28:451.1, et seq. LDH filed an answer to the reconventional demand, asserting that per La. R.S. 28:451.1, et seq., only LDH is authorized to determine if an individual is eligible for developmental disability services and that if an individual is found eligible, LDH determines the appropriate placement. A consent judgment was entered in the 9th JDC on August 28, 2017, committing Cole to the custody of the Office of Citizens with Developmental Disabilities, which is part of LDH. The involuntary commitment was for a 60-day period.
In the instant case, LDH opposed the exception of lis pendens on the basis that the commitment ordered in the August 28, 2017 consent judgment in the 9th JDC action was for only a 60-day period, resulting in an expiration of the commitment period on October 27, 2017. LDH asserted that La. R.S. 28:454.7(B) provides in pertinent part, "Any person who is not recommitted shall no longer be under court commitment, but shall continue to receive all supports and services as identified in his support plan, as long as he meets state criteria." No further orders or judgments were entered into the record in the 9th JDC action extending the commitment period. LDH argued that at the time Cole was discharged from Central to a less restrictive setting on March 2, 2018, the proceedings in the 9th JDC were completed. Thereafter, and subsequent to the filing of the instant action, Cole filed a petition for writ of habeas corpus directed to ELMHS in the 9th JDC action on August 21, 2018, which was set for hearing on August 30, 2018. The trial court ruled orally that the exception of lis pendens was overruled because it found no pending action in the 9th JDC.
The support coordination agency, Medical Resources and Guidance, indicated that Cole transitioned to a less restrictive setting in February 2018. LDH stated in its opposition to the exception of lis pendens that Cole's discharge date from Central was on March 2, 2018. The May 8, 2018 9th JDC minutes note that Cole had been discharged to a less restrictive placement, but does not provide the exact date.
The objection of lis pendens is raised by a declinatory exception. La. C.C.P. art. 925(A)(3). On the trial of the declinatory exception, evidence may be introduced to support or controvert any objection pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon. La. C.C.P. art. 930. The trial court has broad discretion in making evidentiary rulings, and its decision will not be overturned absent an abuse of that discretion. Emery v. Owens-Corp., 2000-2144 (La. App. 1 Cir. 11/9/01), 813 So. 2d 441, 448, writ denied, 2002-0635 (La. 5/10/02), 815 So. 2d 842.
Louisiana Code of Civil Procedure article 531 codifies the doctrine of lis pendens and provides:
When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in [Louisiana Code of Civil Procedure] Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. For lis pendens to apply, La. C.C.P. art. 531 requires that: 1) two or more suits are pending in a Louisiana court or courts; 2) on the same transaction or occurrence; and 3) between the same parties in the same capacities. The test established to determine if an exception of lis pendens should be sustained is the same as that for res judicata; thus, an exception of lis pendens should be sustained if a final judgment in the first suit would be res judicata in the subsequently filed suit. Aisola v. Louisiana Citizens Property Ins. Corp., 2014-1708 (La. 10/14/15), 180 So. 3d 266, 269. In determining whether this requirement is met, the crucial inquiry is not whether the second suit is based on the same cause of action as the first suit, but whether the second suit asserts a cause of action that arises out of the same transaction or occurrence that is the subject matter of the first suit. Citizens Sav. Bank v. G & C Development, L.L.C., 2012-1034 (La. App. 1 Cir. 2/15/13), 113 So. 3d 1085, 1089; Code v. Department of Public Safety and Corrections, 2011-1282 (La. App. 1 Cir. 10/24/12), 103 So. 3d 1118, 1125, writ denied, 2012-2516 (La. 1/23/13), 105 So. 3d 59. The party filing the exception of lis pendens has the burden of proving the facts necessary for the exception to be sustained. AmSouth Bank v. Unemployment Compensation Control Systems, LLC, 2005-0253 (La. App. 1 Cir. 5/8/09), 2009 WL 1270295 *3 (unpublished).
The first requirement of lis pendens is that there must be two or more suits pending in a Louisiana court or courts. Because lis pendens does not address the merits of the dispute between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court's judgment. Louisiana Cotton Ass'n Workers' Comp. Grp. Self-Ins. Fund v. Tri-Parish Gin Co., Inc., 624 So. 2d 461, 464 (La. App. 2 Cir. 1993).
In the instant case the trial court determined that there were not two suits pending at the same time. Upon review of the evidence submitted, we must agree with the trial court. On August 28, 2017, the 9th JDC entered a consent judgment at the time that Cole was a resident of Central. The consent judgment provided that Cole was committed to LDH for a total period of "sixty (60) days or until further order of the [c]ourt." The consent judgment also provided that the matter was set for a review on October 24, 2017. The minutes of the 9th JDC indicate that the following transpired: (1) on October 24, 2017, a review hearing took place with the attorneys agreeing to work to resolve the issue of a less restrictive placement and the matter was recessed until November 13, 2017; (2) the next review hearing was continued twice; (3) on December 12, 2017, a review hearing took place with the parties stipulating that progress was being made to find Cole a less restrictive placement; (4) the next hearing review was continued twice; (5) on March 8, 2018, a review hearing was called and counsel requested a continuance; (6) on April 10, 2018, the review hearing was again continued; (7) on May 8, 2018, a review hearing took place in which counsel advised the trial court that Cole had been discharged and placed in a less restrictive placement.
By consent, Cole was committed in the 9th JDC action pursuant to the Developmental Disability Law. This period of judicial commitment cannot exceed one hundred eighty (180) days, unless a hearing is held and other requirements are met. La. R.S. 28:454.7(A) . However, an individual is entitled to receive the supports and services contained in his support plan if he meets the state criteria, even if no longer judicially committed. La. R.S. 454.7(B). The consent judgment noted that the agreement was intended to serve as a support plan as required by La. R.S. 28:454.5(C).
See La. R.S. 28:451.1-455.2.
We also note that pursuant to the Behavioral Health Law, La. R.S. 28:1, et seq., a period of judicial commitment, except for alcohol use disorder, cannot exceed a period of one hundred eighty (180) days, and the period of commitment expires at the end of the judicial commitment period. If the person is not converted to voluntary status, the person shall be discharged unless a petition for judicial commitment has been filed prior to the expiration of the commitment period. La. R.S. 28:56(A)(1)(a).
The record reveals that the 9th JDC commitment order was 60 days in duration. Thereafter, it appears that Cole remained in LDH custody while attempts were made to find a less restrictive placement for him. Cole transitioned to a less restrictive environment in February 2018, but the 9th JDC was not advised of Cole's discharge from LDH custody and a less restrictive placement until May 8, 2018. Nevertheless, any judicial commitment period pursuant to the 9th JDC consent judgment had expired as of October 27, 2017. See La. R.S. 28:454.7(A). On August 20, 2018, the current petition for judicial commitment was filed in the 20th JDC.
Cole asserts that the 9th JDC matter was never resolved and that his reconventional demands are still pending. However, based upon the prayers for relief contained therein, the consent judgment entered into in the 9th JDC action appears to address the reconventional demands made by Cole against LDH. He further claims that he was due in court in the 9th JDC on August 30, 2018, but he was unable to attend since he was being held at ELMHS. Cole argues that the 9th JDC action is the first filed, and the current suit should be dismissed.
In his reconventional demand, Cole requested a judgment for appropriate placement, treatment, and provision of disability services as per law; that the living options provided in his support plan are in the most integrated setting with consideration given to the needs, desires and choices of Cole; and that the court determine whether he meets admission criteria of the Office for Citizens with Developmental Disabilities. See La. R.S. 28:454.1-454.2.
Cole filed a petition for writ of habeas corpus on August 21, 2018, in the 9th JDC action to have ELMHS produce him in that court. Cole argues that a hearing took place on August 30, 2018, in the 9th JDC after this matter was filed on August 20, 2018. However, the record reflects that the August 30, 2018 hearing scheduled in the 9th JDC was in connection with Cole's petition for writ of habeas corpus, which was filed subsequent to the August 20, 2018 petition for judicial commitment in the instant matter. Furthermore, the minutes of the 9th JDC action on May 8, 2018, do not reflect any subsequent hearing or scheduled dates.
There are several copies of the petition for writ of habeas corpus in the record. This court is able to ascertain that the petition for writ of habeas corpus was filed in the 9th JDC on August 21, 2018, subsequent to the filing of the instant action on August 20, 2018.
Based on the above, we agree with the trial court that the first requirement of lis pendens was not met. See La. C.C.P. art. 531; Aisola, 180 So. 3d at 269. At the time of the August 20, 2018 filing of the instant petition for judicial commitment, there was no suit pending in the 9th JDC.
The second requirement of lis pendens is that the suits must involve the same transaction or occurrence. No one test exists to determine what constitutes the same transaction or occurrence; such determination is made on a case-by-case basis. Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 1997-28 (La. App. 3 Cir. 10/29/97), 702 So. 2d 1057, 1060. Cole was judicially committed in the 9th JDC for aggressive behavior and threats made to the staff at Central in May 2017. It is undisputed that Cole was discharged from Central and released to a less restrictive environment. He was then admitted to Lake Charles Memorial due to his violent and threatening behavior toward others in August 2018. A PEC was signed on August 10, 2018, and a CEC on August 11, 2018. Another PEC was signed on August 17, 2018, and a CEC on August 18, 2018. Therefore, Cole was admitted to EMLHS pursuant to a PEC authorized by La. R.S. 28:53 and a corresponding CEC authorized by La. R.S. 28:54. The later action represents a totally separate commitment from any previous commitment. We agree with the trial court that no other proceeding was pending on August 20, 2018. The overruling of the exception of lis pendens is affirmed. Judicial Commitment Procedure of Person with Developmental Disability
Cole's second assignment of error is that because he is a person with a developmental disability, any involuntary commitment of him by LDH should have proceeded pursuant to the Developmental Disability Law. In the matter before us, Cole was involuntarily committed pursuant to La. R.S. 28:55, which forms part of the Behavioral Health Law. Cole asserts that involuntary commitment pursuant to the Behavioral Health Law is for those who are not developmentally disabled and involuntary commitment pursuant to the Developmental Disability Law pertains to those with a developmental disability, such as himself.
As related to the instant case, Cole was admitted to a treatment facility pursuant to a PEC authorized by La. R.S. 28:53(A) and a CEC authorized by La. R.S. 28:53(G). Such admission is limited to fifteen days. La. R.S. 28:53(G)(8)(c). Thereafter, ELMHS filed the current petition for commitment pursuant to La. R.S. 28:54(A), which states in pertinent part:
The department or any person of legal age may file with the court a petition which asserts his belief that a person is suffering from mental illness which contributes or causes that person to be a danger to himself or others or to be gravely disabled, or is suffering from a substance-related or addictive disorder which contributes or causes that person to be a danger to himself or others or to be gravely disabled and may thereby request a hearing.The petition alleged that Cole suffered from "Bipolar Disorder, Intermittent Explosive Disorder, and Intellectual Disability." The petition further alleged that Cole currently exhibited "mood lability, paranoid ideations and aggressive acting out due to paranoia and mood instability." Dr. Ahmed testified that upon initial examination, Cole was extremely irritated and having both paranoid and suicidal thoughts. Cole had a long history of bipolar disorder and cognitive impairment. Dr. Ahmed testified that Cole was a safety risk due to his threatening language and several fights. Dr. Ahmed also testified that bipolar disorder is a serious mental illness and combined with his cognitive impairment, Cole is a danger to himself, a danger to others, as well as gravely disabled. Dr. Ahmed believed that if Cole were in a less restrictive environment than ELMHS, the violent, impulsive behaviors would continue and based upon his history, Cole would not take his medication.
The Behavioral Health Law defines a "[p]erson who has a mental illness" as:
[A]ny person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment. It does not refer to a person with, solely, an intellectual disability; or who suffers solely from epilepsy or a substance-related or addictive disorder. [Emphasis added.]La. R.S. 28:2(24).
Cole asserts that because the Behavioral Health Law has different requirements than the Developmental Disability Law for involuntarily commitment of a person, the Developmental Disability Law applied to him, but was not followed by LDH. Louisiana Revised Statutes 28:454.5, provides in pertinent part:
A. Any interested person, including a representative of the department, may file a petition seeking to have a person with a developmental disability remanded to the custody of the department on the grounds that he is either dangerous to himself or dangerous to others.Cole argues that because he is developmentally disabled, he was entitled to a written report provided by an interdisciplinary team, as required by La. R.S. 28:454.5(C). An interdisciplinary review is defined in La. R.S. 28:451.2(15) as:
B. The petition shall be filed in the judicial district in which the respondent resides or may be found. The petition shall contain the facts which are the basis of the assertion that the respondent is a person who has been diagnosed with a developmental disability and is either dangerous to himself or dangerous to others.
C. The petition shall attach the written report and recommendations prepared by an interdisciplinary team, if available, and any other available medical, educational or psychological records.
[A] review by a team of professionals for the purpose of determining the presence of a developmental disability as defined in this Chapter. Professionals conducting this review must have knowledge of diagnoses and functional limitations associated with developmental disabilities.An interdisciplinary team is defined in La. R.S. 28:451.2(16) as:
[A] group that reviews information, data and input from a person to make recommendations relevant to the needs of the person. The team consists of the person, his legal representative if applicable, professionals of varied disciplines who have knowledge relevant to the person's needs, and may include his family members along with others the person has designated.
At the trial on the judicial commitment, LDH also introduced a Physician's Report to Court dated August 20, 2018. Cole maintains that the Physician's Report that was offered by LDH was one required by the Behavioral Health Law, and not the Developmental Disability Law. Cole argues that the improper commitment by LDH was a violation of LDH's burden of clear and convincing evidence and violated his fundamental due process rights under the Fourteenth Amendment.
Cole has not directed this court to any cases that interpret the interaction between the Behavioral Health Law and the Developmental Disability Law. In statutory interpretation, there is a well-settled presumption that "every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used." W. Monroe Firefighters Local 1385 v. City of W. Monroe, 2012-1937 (La. 3/19/13), 111 So. 3d 330, 336 (quoting ABL Mgmt., Inc. v. Bd. of Supervisors of Southern Univ., 2000-0798 (La. 11/28/00), 773 So. 2d 131, 135). Thus, our courts must "give effect to all parts of a statute and construe no sentence, clause or word as meaningless." W. Monroe Firefighters Local 1385, 111 So. 3d at 336 (quoting Moss v. State, 2005-1963 (La. 4/4/06), 925 So. 2d 1185, 1196). It is further presumed that the legislature did not insert "idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless." W. Monroe Firefighters Local 1385, 111 So. 3d at 336 (quoting ABL Mgmt., Inc., 773 So. 2d at 135).
We note that Cole has both a mental illness and a developmental disability. As we stated above, a "[p]erson who has a mental illness" is defined by statute as "any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment. It does not refer to a person with, solely, an intellectual disability...." La. R.S. 28:2(24) (emphasis added). The Legislature specifically excluded from the definition a person with "solely" an intellectual disability. The corollary to that definition is that a person suffering from a psychiatric disorder and an intellectual disability would be appropriately included within the ambit of the Behavioral Health Law.
The office for citizens with developmental disabilities is intended to provide services that allow individuals with "developmental disabilities to exert control and choice over their own lives, and fully participate in and contribute to their communities through full integration and inclusion" in society. La. R.S. 28:451.1. Developmental disability is defined, in part, as an "intellectual or physical impairment" that results in "substantial functional limitations" in three or more areas of major life activity (self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency) and is not attributed solely to mental illness. La. R.S. 28:451.2(11).
We note that Cole was originally committed by consent judgment pursuant to the Developmental Disability Law. By the terms of the consent judgment, Cole was discharged to a less restrictive environment and was still receiving services under those statutes. Louisiana Revised Statutes 28:454.2(C)(2) provides that a request for transfer and discharge "may be initiated by the person, the person's legal representative, or the provider of services for the person in accordance with existing federal and state regulations or existing court orders." Pursuant to this authority, Heaven On Earth, Cole's provider, notified Cole that he was being transferred and/or discharged with its services terminating on August 9, 2018. Louisiana Revised Statutes 28:454.10(5) provides that LDH has "the authority to transfer persons placed in its custody" and "the authority to transfer any person receiving developmental disabilities services within or from the Developmental Disabilities Services System." Heaven On Earth also notified Cole of his right to appeal the transfer and/or discharge, as provided for in La. R.S. 28:454.16. There is nothing in the record to indicate that Cole appealed this action.
Both the Behavioral Health Law and the Developmental Disability Law provide for commitment of an individual with a combination of a mental illness and an intellectual disability. Because Cole has both a mental illness and a developmental disability, we find that the appropriate commitment procedure was used by LDH. The medical evidence in the record clearly establishes that Cole's mental health diagnoses of bipolar disorder and intermittent explosive disorder, as well as his cognitive impairment, which contributed to his poor impulse control, were the catalysts that necessitated Cole's judicial commitment. Dr. Ahmed testified that all of these factors contributed to Cole being a danger to himself, a danger to others, and gravely disabled.
Cole relies upon Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 1858, 32 L. Ed. 2d 435 (1972), for the proposition that "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson involved the pretrial commitment of incompetent criminal defendants, which is not at issue in the present matter. Cole also asserts that he is entitled to such treatment as is necessary to prevent unreasonable losses of additional liberty as a result of confinement. See Youngberg v. Romeo, 457 U.S. 307, 314-19, 102 S. Ct. 2452, 2457-60, 73 L. Ed. 2d 28 (1982) (considering the substantive rights of involuntarily committed developmentally disabled persons under the Fourteenth Amendment to the Constitution). Youngberg held that the developmentally disabled have "constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests." Youngberg, 457 U.S. at 324, 102 S. Ct. at 2462. Cole argues that it is incumbent upon LDH to ensure that the commitment is the least restrictive possible and medically suitable. Youngberg pertained to the conditions of confinement, particularly the use of physical restraints, injuries, and safety issues and not the procedure to commit a developmentally disabled individual. There was no evidence adduced in the present case as to any issues relating to the nature of Cole's confinement (i.e., physical restraints, injuries, or safety issues) or that the requirements of Youngberg have not been met. See Youngberg, 457 U.S. at 324, 102 S. Ct. at 2462 (developmentally disabled have "constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.").
Of particular concern in Jackson was the fact that the state statute that allowed a more lenient standard for commitment of incompetent criminal defendants, but conversely provided a more stringent standard for incompetent criminal defendants to be released from commitment than for persons not charged with a criminal offense. See Jackson, 406 U.S. 727-30, 92 S.Ct. 1852-1854.
Cole argues "[s]ince the conditions of [his] commitment are not commensurate with the goals of his confinement[,] then the state interest is not rationally related as required under the Due Process protections afforded him through the Fourteenth Amendment." Although Cole testified that he wanted to return to Central or go to his sister's house in Lake Charles, there was no testimony in the record to suggest that either of those alternatives were feasible. Furthermore, Dr. Ahmed testified that if Cole was in a less restrictive environment, his violent, impulsive behaviors would continue, and he would not take his necessary medications. Dr. Ahmed believed that Cole was in the least restrictive, most medically suitable environment for him. The testimony at the hearing indicated, that based upon Cole's mental illness and his prior history in a less restrictive setting, a less restrictive confinement was not indicated.
When Cole was transferred to ELMHS on August 17, 2018, it appears that no beds were available at Central.
To commit an individual under the Behavioral Health Law, the petitioner must show, by clear and convincing evidence, that an individual is dangerous to self, dangerous to others, or gravely disabled due to mental illness. La. R.S. 28:55(E)(1). The "clear and convincing" evidence burden of proof applicable to a judicial commitment is greater than the preponderance of the evidence" standard applicable to most civil matters but less onerous than the "beyond a reasonable doubt" standard applicable to criminal matters. Under the clear and convincing evidence standard, the existence of the disputed fact must be highly probable or much more probable than not. See In re Mental Health of S.A.V., 2008-1013 (La. App. 1 Cir. 6/20/08), 992 So. 2d 1067, 1070. Although the trial court's factual findings, for purposes of judicial commitment, are afforded great weight and should not be disturbed in the absence of manifest error, according to In re Commitment of W.C., 96-0777 (La. App. 1 Cir. 12/20/96), 685 So. 2d 634, 638-39, "the record must be reviewed in light of the high standards enunciated by statute since the judgment of the trial court involves deprivation of liberty by involuntary commitment." Judicial Commitment of FBSR, 97-1327 (La. App. 3 Cir. 6/24/98), 715 So. 2d 675, 677 (quoting Judicial Commitment of J.M., 560 So. 2d 100, 103 (La. App. 3 Cir.1990), citing Addington v. Texas, 441 U.S. 418, 432-33, 99 S.Ct. 1804, 1813, 60 L.Ed.2d 323 (1979)).
We note that the petition for judicial commitment listed as the only ground for commitment the assertion that Cole was gravely disabled. However, the physician's report to the court, which was admitted without objection (other than the objection of the healthcare provider-patient privilege pursuant to La. C.E. art. 510, discussed subsequently herein), and the testimony of Dr. Ahmed evidenced that Cole was dangerous to self, dangerous to others, and gravely disabled.
"Dangerous to others" is defined by statute as "the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict physical harm upon another person in the near future." La. R.S. 28:2(6). "Dangerous to self is defined by statute as "the condition of a person whose behavior, significant threats or inaction supports a reasonable expectation that there is a substantial risk that he will inflict physical or severe emotional harm upon his own person." La. R.S. 28:2(7). "Gravely disabled" is defined in part by statute as "the condition of a person who is unable to provide for his own basic physical needs, such as essential food, clothing, medical care, and shelter, as a result of serious mental illness ... and is unable to survive safely in freedom or protect himself from serious harm." La. R.S. 28:2(13). Both elements of "gravely disabled" must be proven in order to commit an individual under the Behavioral Health Law. See In re Mental Health of S.A.V., 992 So. 2d at 1070.
The trial court determined that Cole was dangerous to self, dangerous to others, and gravely disabled and unable to provide for his own physical needs if released to the community without supervision. Dr. Ahmed substantiated the diagnoses found in the psychiatric evaluations contained in the record, including Cole's history of bipolar disorder, intermittent explosive disorder, and violent behavior toward others, consisting of fighting, throwing chairs, and spraying a fire extinguisher. Dr. Ahmed specifically noted:
Mr. Cole seems to be at high risk for significant violence to others and due to the fact of his recent suicide attempt he was placed on one to one direct observation which is highest level of observation. In my opinion, if this client is released to a less structured environment, he is at high risk for decompensation and significant risk to himself and others.Cole admitted during his testimony to throwing chairs. He explained that he did not want the Heaven On Earth staff at his apartment and that he had made several complaints about the staff. He also admitted spraying a person with a fire extinguisher, although he claimed the person was trying to hurt him.
After careful review and consideration, we conclude that the trial court did not err in finding that Cole is a danger to self, a danger to others, and gravely disabled. A critical factor in our conclusion is the fact that the trial court had the benefit of personally observing Cole's demeanor while he testified. See In re T.B., 45,380 (La. App. 2 Cir. 5/19/10), 37 So. 3d 576, 581. The trier of fact is granted a great deal of discretion in matters of credibility of witnesses. This is so because the trier of fact is able to observe firsthand the demeanor and character of the witnesses, while this court is limited to a review of the cold record. Therefore, unless the factual findings are clearly wrong or manifestly erroneous, we will not disturb the credibility determinations of the trier of fact. See Wiley v. Dep't of Health & Hosps., 2015-1984 (La. App. 1 Cir. 9/16/16), 203 So. 3d 1085, 1089. Although the factual findings of the trial court in commitment cases are entitled to great weight, the record must be reviewed in light of the heightened burden of proof required by constitutional and statutory law since the judgment of the trial court involves the deprivation of liberty by involuntary commitment. See In re Mental Health of S.A.V., 992 So. 2d at 1071.
Because the record contains clear and convincing evidence that Cole is dangerous to self, dangerous to others, and gravely disabled as a result of mental illness and unable to survive safely in freedom, a reasonable factual basis exists to support the trial court's judgment committing him to LDH for observation, care, and treatment. Therefore, the trial court's determination is not manifestly erroneous or clearly wrong. Louisiana Code of Evidence article 510
Cole assigns as error that the trial court improperly allowed LDH to introduce medical evidence over his objection of the healthcare provider-patient privilege pursuant to La. C.E. art. 510(B)(1), which provides that a "patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives." A "confidential communication" is defined as "the transmittal or acquisition of information not intended to be disclosed to persons other than" persons involved in the patient's treatment. La. C.E. art. 510(A)(1)(a). '"Confidential communication' includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives." La. C.E. art. 510(A)(1)(b).
The Louisiana Code of Evidence article 510(B)(2) provides exceptions to the healthcare provider-patient privilege, in pertinent part:
Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
* * *
(f) When the communication is made in the course of an examination ordered by the court with respect to the health condition of a patient, the fact that the examination was so ordered was made known to the patient prior to the communication, and the communication concerns the particular purpose for which the examination was made, unless the court in its order directing the examination has stated otherwise.
(g)(i) When the communication is made by a patient who is the subject of an interdiction or commitment proceeding to his current health care provider when such patient has failed or refused to submit to an examination by a health care provider appointed by the court regarding issues relating to the interdiction or commitment proceeding, provided that the patient has been advised of such appointment and the consequences of not submitting to the examination.
(ii) Notwithstanding the provisions of Subitem (i) of this Item, in any commitment proceeding, the court-appointed physician may review the medical records of the patient or respondent and testify as to communications therein, but only those which are essential to determine whether the patient is dangerous to himself, dangerous to others, or unable to survive safely in freedom or protect himself from serious harm. However, such communications shall not be disclosed unless the patient was informed prior to the communication that such
communications are not privileged in any subsequent commitment proceedings. The court-appointed examination shall be governed by Item B(2)(f).Pursuant to the above exception, a privilege does not exist under La. C.E. art. 510 with respect to communications made in the course of an examination ordered by the court regarding the health condition of the patient where the fact that the examination was so ordered was made known to the patient prior to the communication, and the communication concerns the particular purpose for which the examination was made. La. C.E. art. 510(B)(2)(f). Additionally, there is no privilege when the communication is made by a patient, who is the subject of a commitment proceeding, to his current health care provider when the patient has failed or refused to submit to an examination by a health care provider appointed by the court regarding issues relating to the commitment proceeding, provided the patient has been advised of the appointment and the consequences of not submitting to the exam. La. C.E. art. 510(B)(2)(g)(i).
Cole asserts that he was indeed the subject of a commitment proceeding, but there is no indication that he failed or refused to submit to the examination as required by the exception to the privilege contained in La. C.E. art. 510(g)(i). Cole objected at the trial and questioned whether there was cooperation on his part, as it is only when a patient who is the subject of a commitment proceeding fails or refuses to cooperate that the exception provided for in La. C.E. art. 510(g)(i) to the privilege applies. Dr. Ahmed indicated that Cole did meet with him every week, so it can be ascertained that Cole did cooperate. The trial court overruled the objection. Cole further objected that Dr. Ahmed's testimony was privileged since he had cooperated with the examination. The trial court overruled the second objection as well.
Cole also argues that Dr. Ahmed's testimony as to information he obtained from Central and Pinecrest was all for purposes of treatment and not for purposes of an examination ordered by the trial court. Therefore, Cole maintains that the exception contained in La. C.E. art. 510(g)(ii) is not applicable to the present case since the exception is specifically tailored to assist a court-appointed physician when a patient cannot cooperate.
We find nothing in La. C.E. art. 510(g)(ii) limiting the exception to situations wherein a patient cannot cooperate as suggested by Cole. In the instant case, Dr. Ahmed was appointed by the trial court to examine Cole and file a written report. LDH argues that La. C.E. art. 501(g)(ii) provides an exception for court-appointed physicians. Dr. Ahmed testified that he informed Cole that he was preparing a report for the trial court on more than one occasion. Dr. Ahmed's testimony indicated that the medical records he reviewed were pertinent to determining whether Cole was a danger to himself, a danger to others, and gravely disabled. Dr. Ahmed referred to the medical records of Lake Charles Memorial to assist in his evaluation of Cole in preparation of his physician's report to the trial court.
This court analyzed the application of La. C.E. art. 510 with regard to a judicial commitment proceeding in Matter of Commitment of W.C., 685 So. 2d at 637-38. We determined that La. C.E. art. 510 is concerned with protecting the confidences a patient communicates to his health care provider and the fact that disclosure of the patient's confidences could be detrimental to the health care provider-patient relationship. However, information regarding behavior of an inpatient in a mental hospital, which is not derived through or from the communication process, is beyond the reach of the privilege contained in La. C.E. art. 510. Matter of Commitment of W.C., 685 So. 2d at 637-38. Further, this court specifically stated "[a] privilege does not exist under this article with respect to communications made in the course of an examination ordered by the court regarding the health condition of the patient where the fact that the examination was so ordered was made known to the patient prior to the communication and the communication concerns the particular purpose for which the examination was made." Matter of Commitment of W.C., 685 So. 2d at 637 n.4.
In the instant case, Dr. Ahmed was appointed by the trial court for the distinct purpose of the judicial commitment of Cole and ordered to submit a physician's report to the trial court. We agree with the trial court that as a court-appointed physician, Dr. Ahmed's testimony and the supporting documentation fell within the exception to the privilege pursuant to La. C.E. 510(B)(2)(f) and (g)(ii).
Considering the evidence, and the reasonable inferences that the trial court was entitled to draw therefrom, we conclude that LDH presented sufficient evidence to satisfy the heightened burden of proof in commitment cases that Cole was a danger to himself, a danger to others, and gravely disabled. Thus, LDH satisfied the requirements for judicial commitment.
CONCLUSION
For the above and foregoing reasons, we affirm the September 7, 2018 judgment of the trial court, which committed Derrick Cole to Eastern Louisiana Mental Health System. No costs are assessed on this appeal.
AFFIRMED.