Delineation of Hearsay in Civil Commitment

Facts of the Case

In January 2022, O.L.K. was committed involuntarily to the Montana State Hospital. The petition for involuntary commitment was filed on the recommendation of Michale McLean, a licensed clinical social worker. Ms. McLean evaluated O.L.K. at St. Patrick’s Hospital on January 18, 2022, following a “disturbance” at Winds of Change (WOC), a mental health treatment center. Ms. McLean’s report is referenced as the “St. Patrick’s Report” and included statements from a WOC staff member and law enforcement.

The St. Patrick’s Report by Ms. McLean contained a note by another employee of St. Patrick’s Hospital, Maggie Mayfield, who spoke with law enforcement transporting O.L.K. Law enforcement reported that O.L.K. “corner[ed]” his therapist at WOC in a “threatening and aggressive manner.” Following discharge from St. Patrick’s Hospital emergency department, O.L.K. returned to WOC and threatened to burn down the building with a lighter. This led to his transport, by law enforcement, back to St. Patrick’s Hospital Emergency Department.

Ms. McLean described O.L.K. as “intermittently irritable” and “tangential.” O.L.K. stated that he was at St. Patrick’s Hospital emergency department for “fighting” and “trying to protect” himself. He stated to Ms. McLean that he would “kill that son of a bitch,” and “I am not going to tell you [whom he would kill]. I take it very serious[ly] when I say that. I mean it. I will do it. I know how to kill someone” (O.L.K., p 93). O.L.K. later threatened to kill Ms. McLean and others at St. Patrick’s Hospital.

Following the petition for involuntary commitment, the district court appointed Shannon McNabb, a licensed clinical professional counselor, to serve as the “professional person” in the involuntary commitment proceedings. She was the state’s sole witness.

Ms. McNabb testified that, among other sources, she relied on the St. Patrick’s Report. The state elicited testimony from Ms. McNabb, asking about specific content in the St. Patrick’s Report. O.L.K.’s attorney objected on hearsay grounds. The objection was overruled on the “medical records exception” of the Montana Rules of Evidence. Later, Ms. McNabb testified about O.L.K.’s threats recorded in the St. Patrick’s Report. O.L.K.’s attorney raised a hearsay objection and was once again overruled. The district court reasoned that both the medical and business records exceptions allowed for admission of such testimony, as it was “reading medical records that are relating to a diagnosis and medical treatment, as well as records that were created reasonably close in time to the events in question” (O.L.K., p 94).

The district court committed O.L.K., largely based on Ms. McNabb’s opinion and recommendation, specifically Ms. McNabb’s testimony on O.L.K.’s homicidal statements to Ms. McLean and threats to his WOC therapist. O.L.K. appealed to the state supreme court.

Ruling and Reasoning

Judge J. McKinnon, joined by the remaining four judges, ruled that the statements from law enforcement, O.L.K., and others contained in Ms. McLean’s St. Patrick’s Report were not admissible as part of the professional testimony by Ms. McNabb under the business or medical records exceptions to hearsay rule under Montana Rules of Evidence 703 (1990). The court stated that the homicidal statements made by O.L.K. during his meeting with Ms. McNabb were “substantial admissible evidence,” admissible as lay witness testimony and sufficient to show that O.L.K. presented an imminent threat of injury to others. The court upheld O.L.K.’s involuntary commitment order.

Regarding the business records hearsay exception, the Montana Rule of Evidence 803(6) (2007) states that records qualify “if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity” (O.L.K., p 97). The court said that this exception requires that “the record was prepared in accordance with its regular and trustworthy business practices” (O.L.K., p 97, citing State v. Baze, 251 P.3d 122 (Mont. 2011)). The court ruled that the St. Patrick’s Report was not admissible as part of Ms. McNabb’s testimony because nothing in the record affiliates Ms. McNabb with St. Patrick’s Hospital. Similarly, Ms. Mayfield’s note within the St. Patrick’s Report was also ruled hearsay within hearsay.

Per the Montana Rules of Evidence 803(4) (2007), the medical records exception to hearsay applies to “statements made [by patients] for purposes of medical diagnosis or treatment” (O.L.K., p 97). The court described that a person seeking medical treatment “possess[es] a selfish motive in telling the truth” and therefore makes truthful statements ((O.L.K., p 97, citing State v. Harris, 808 P.2d 453 (Mont. 1991), p 457). To satisfy the medical records exception, a patient’s motive in making the statement must be “consistent with seeking medical treatment” and “of a type reasonably relied on by a physician when making diagnosis and treatment decisions” (Harris, p 457). O.L.K.’s homicidal statement and others made to Ms. McLean were not made with a motive of seeking medical treatment, as he was involuntarily detained for his evaluation with her and did not express any desire for medical treatment. Therefore, O.L.K.’s statements to Ms. McLean were not admissible under the medical diagnosis or treatment exception.

Regarding the Montana Rules of Evidence 703 (“Basis of opinion testimony by experts”), the court ruled that statements made to Ms. McLean in the St. Patrick’s Report were not admissible as part of Ms. McNabb’s testimony. The court relied on In re C.K., 391 P.3d 735 (Mont. 2017), in which it said that “the sole purpose of admission of otherwise inadmissible hearsay under Rule 703 is to aid the finder of fact in assessing the credibility and reliability of the expert’s opinion” (C.K., p 740).

The court ruled that O.L.K.’s homicidal statements (including “whoever wanted to push this bomb button was who he wanted to kill”) to Ms. McNabb were admissible as admissions by a party opponent (O.L.K., p 94). These statements, despite being “vague,” satisfy “the overt act requirement” for civil commitment.