STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6035

January 28, 1982

MENTAL HEALTH:

Physician who petitions for 90-day order to provide continued hospitalization to a mentally ill person testifying at hearing on petition.

A physician who is a director of a facility and who petitions a probate court for a 90-day order for hospitalization of a mentally ill person pursuant to the Mental Health Code, Sec. 472, may testify at the hearing on the petition.

Honorable Leo R. LaLonde

State Representative

The Capitol

Lansing, MI

You have asked my opinion whether the person who petitions a probate court for a 90-day order under the Mental Health Code, 1974 PA 258, as amended; MCLA 330.1001 et seq; MSA 14.800(1) et seq, Sec. 472 may be the physician who testifies, pursuant to the Mental Health Code, supra, Sec. 461, at the hearing on the petition.

Chapter 4 of the Mental Health Code deals with the voluntary and involuntary hospitalization of mentally ill persons and their discharge from hospitalization. An initial order of a probate court for involuntary hospitalization shall be for a period of not to exceed 60 days. The Mental Health Code, Sec. 472(1), supra.

The Mental Health Code, Sec. 472(2), supra, provides:

The term 'director' is defined by the Mental Health Code, supra, Sec. 400(c) as 'the chief officer of a hospital or a person authorized by a director to act on his behalf.'

The petition for an order authorizing hospitalization for an additional 90 days must contain a statement of the reasons for the director's determination that the patient continues to be a person requiring treatment, a statement describing the treatment program provided to the patient, the results of the course of treatment and a clinical estimate of the time further treatment will be required. The petition must be accompanied by a certificate ⁽¹⁾ executed by a psychiatrist. The Mental Health Code, supra, Sec. 473.

The Mental Health Code, supra, Sec. 451 provides that court hearings, other than preliminary hearings, convened under the authority of Chapter 4 shall be governed by sections 451 and 465. As held by the Michigan Court of Appeals in People ex rel Book v Hooker, 83 Mich App 495; 268 NW2d 698 (1978), iv den 405 Mich 802 (1979), the standards and the procedural safeguards relating to a 90-day order for hospitalization are the same as the standards and procedural safeguards relating to the initial 60-day order for hospitalization. As noted in the question asked, the Mental Health Code, Sec. 461, supra, requires that at least one physician who has personally examined the subject of a petition testify in person or by written deposition at the hearing on the petition. Although it was reasonably clear from the provisions of Chapter 4 that the requirement of the Mental Health Code, Sec. 461, supra, was applicable to the initial 60-day order, a 90-day order or a continuing order that may follow a 90-day order, the holding in People ex rel v Hooker, supra, resolved any question.

As above observed, the petition for a 90-day order of hospitalization is filed by the director of the hospital. The petitioner may be the chief officer of the hospital or a person authorized by him to act in his behalf. If the person designated by the director to act in his behalf is a physician and has personally examined the subject of the petition, he is qualified in accordance with the provisions of the Mental Health Code, Sec. 461, supra, to testify at the hearing on the petition. The same may be said if the chief officer of the hospital is a physician; then the chief officer may be the petitioner and may testify, pursuant to the Mental Health Code, Sec. 461, supra, at the hearing on the petition.

Although it may be argued that the examining-testifying physician who is also the petitioner has an interest in the outcome of the proceedings, even if there is merit in the argument, such an interest does not disqualify him as a witness. MRE, 601; RJA, Secs. 2158-2159; MCLA 600.2158-600.2159; MSA 27A.2128-27A.2129; People v Zabijak, 285 Mich 164, 176; 280 NW 149, 154 (1938).

It is my opinion, therefore, that a physician who is the director of a facility and who petitions a probate court for a 90-day order for hospitalization of a mentally ill person pursuant to the Mental Health Code, Sec. 472, may testify at the hearing on the petition.

Frank J. Kelley