On appeal from the Superior Court, Law Division, Monmouth County.
Long, D'Annunzio and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
[263 NJSuper Page 430] Raymond S. was confined to Marlboro Psychiatric Hospital (Marlboro) on January 17, 1992, pursuant to a temporary order of commitment. On February 5, 1992, a commitment hearing was held before a Law Division Judge. At the hearing, assigned
counsel for Raymond requested that he be placed on voluntary status or conditionally extended pending placement (CEPP). See R. 4:74-7(b)(2). The Judge rejected counsel's request and entered an order of involuntary commitment from which Raymond now appeals.
Raymond contends on appeal that deficiencies in the proceedings denied him procedural due process, and that there was insufficient evidence to support a finding of dangerousness under the clear and convincing standard required by case law and statute. Our review of the record in light of these contentions satisfies us that the involuntary commitment order under review must be reversed.*fn1
Involuntary commitment to a mental hospital is state action which deprives the committee of important liberty interests and, as such, triggers significant due process requirements. In re S.L., 94 N.J. 128, 137, 462 A.2d 1252 (1983). In light of the committee's significant constitutionally protected interests, our Legislature and the New Jersey Supreme Court have promulgated statutes and rules to ensure that no person is involuntarily committed to a psychiatric institution without having been afforded procedural and substantive due process. N.J.S.A. 30:4-27.1 to 27.23; R. 4:74-7. Consequently, a person may not be involuntarily committed to a psychiatric facility without proof by clear and convincing evidence that the individual has a mental illness, and the mental illness causes the patient to be dangerous to self, to others, or to property. N.J.S.A. 30:4-27.9(b); N.J.S.A. 30:4-27.15(a); R. 4:74-7(f).
The case for involuntary commitment must be presented by County Counsel. N.J.S.A. 30:4-27.12. However, evidence relevant to the question of whether the patient is subject to commitment must necessarily come from the testimony of an expert witness. For that reason, both statute and court rule require that a psychiatrist on the patient's treatment team testify at the hearing, and provide medical testimony supporting the need for commitment. Specifically, a psychiatrist who testifies must have conducted a personal examination of the patient within five calendar days prior to the court hearing. N.J.S.A. 30:4-27.13(b); R. 4:74-7(e). These are the minimal requirements; other members of the treatment team may also testify if deemed necessary. Id.
The patient is also entitled to representation by either appointed or personal counsel. Such counsel has the right to cross-examine witnesses advancing commitment, and the right to present evidence on behalf of the patient. N.J.S.A. 30:4-27.14; R. 4:74-7(e).
These procedural and substantive safeguards must be scrupulously followed. Thus, we reject any suggestion that the listing of 76 hearings on the February 5th calendar justified shortcuts in the commitment process. We appreciate that a trial Judge presented with such a calendar is placed under considerable time constraints. However, the answer to the problem is that those in charge of calendaring must be sensitive to the rights of patients and to the requirements of due process.
Although we were advised at oral argument that county counsel was present at the hearing, it is not reflected in the transcript. The case for commitment was advanced by the Judge rather than by county counsel. Such procedure is inappropriate because of the statutory requirement that county counsel present the case for commitment, and also because it places the Judge in the role of an adversary rather than that of a neutral decision maker.
Dr. Hoheb testified at the hearing. The record does not reveal whether he is a psychiatrist or, if he is, whether he is a member of Raymond's treatment team. However, assuming that he is both, there is no evidence, as required by statute and rule, that he examined Raymond within five calendar days of the court hearing, or that he examined Raymond's medical records before testifying. Indeed, it ...