Request By:
W. Van Meter Alford, Esquire
McDonald, Alford & Roszell
156 Market Street
P.O. Box 1808
Lexington, Kentucky 40501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in answer to your letter inquiring whether the county judge and his commissioners as well as physicians and qualified mental health professionals are protected by KRS 202A.200. You indicate in your letter that the county judge and his commissioners refuse to issue a warrant for the arrest of a mentally ill person unless they are first presented with an affidavit of a physician or a qualified mental health professional stating that the person alleged to be mentally ill is in fact mentally ill and should be hospitalized or placed in jail.
Before proceeding to answer your specific question, we think it is advisable to examine KRS 202A.050. KRS 202A.050(1) provides that a friend, relative, spouse, guardian or physician with reasonable grounds to believe that a person is mentally ill and presents an immediate danger or threat thereof to himself or others may file a complaint or affidavit before the judge of a circuit, county or police court in the county where the allegedly mentally ill person is located. KRS 202A.050(2) provides that the complainant must state under oath that he believes the person proceeded against is mentally ill and poses an immediate danger or threat thereof to himself or others if not restrained, and further provides that if it appears to the judge of the court wherein the complaint or affidavit is filed that there is probable cause to believe that the person proceeded against is mentally ill and presents an immediate danger or threat thereof to himself or others, he must issue a warrant of arrest. KRS 202A.050(2) states that immediately after the arrest, the allegedly mentally ill person shall be taken to a physician for an examination. The court, after issuing the warrant, must hold a hearing to determine not only whether probable cause existed at the time of issuing the warrant of arrest but also whether the allegedly mentally ill person should be involuntarily committed for a period not exceeding seven days. KRS 202A.050(4) describes the procedure to be used at the hearing and the finding the court must make before the person can be involuntarily hospitalized for the seven-day period.
You indicate in your letter that the position taken by the Fayette County Court and the commissioners thwarts the purpose of KRS 202A.050. We concur with your observation.
You state that the Fayette County Court has adopted this policy because the Judge and his Commissioners are of the position that they may be found criminally liable under KRS 202A.990. We believe that this position is unfounded. First, KRS 202A.050(2) requires the court to issue a warrant of arrest before examination by a physician if it appears to the court that probable cause exists to believe that the person named is mentally ill and presents an immediate danger or threat to himself or others. Secondly, a public officer, when acting in good faith and within the scope of his authority, is not personally liable for damages sustained by a member of the public as a result of his action unless, of course, it is shown that he acted negligently.
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962);2 A.L.R.3d 814. The county judge and his commissioners, duly appointed under KRS 25.280, are not personally liable for damages sustained by a member of the public as long as they are acting in good faith within the scope of their authority unless, of course, they acted negligently. Thus, if the court and his commissioners are following the specific wording of the statute, they are, under Kentucky law, not personally liable. Further, the Legislature has seen fit to adopt KRS 202A.200 which does nothing more than codify the holding in Spillman, Id., as well as extend the immunity to persons rendering professional opinions under KRS Chapter 202A. In other words, KRS 202A.200 was really not necessary except that it extended the immunity to include physicians and qualified mental health professionals.
KRS 202A.900(1) provides criminal penalties for willfully causing or conspiring with or assisting another in causing the unwarranted hospitalization of any individual under KRS Chapters 202A, 203 and 210. This statute does nothing more than provide criminal liability for those persons who would already be civilly liable to a person wrongfully hospitalized.
In summary, the county judge and his commissioners are not personally liable for carrying out the statutory duties set forth in KRS 202A.050 so long as they do not act in a negligent manner. Spillman, supra; KRS 202.200. Physicians rendering an opinion as to the mental condition of the named person are likewise not personally liable unless they acted negligently in rendering their opinion. KRS 202A.200. Further, qualified mental health professionals are not personally liable for carrying out their official duties. However, the court cannot rely on the opinions of qualified mental health professionals in involuntarily hospitalizing a person alleged to be mentally ill.
In concluding that KRS 202A.990(1) does nothing more than give a criminal remedy where a civil remedy was already available, we rely on
Commonwealth v. Standard Oil Co., 129 Ky. 744, 112 S.W. 902 (1908) wherein the Court said:
"Criminal statutes should never be so construed as to give those who have honestly conformed to the law if it has been explained by the proper authorities. . . ." (pages 903-904).
If KRS 202A.990(1) were construed so as to inflict penal sanctions on officers or persons rendering professional opinions under KRS Chapter 202A, then it would in effect impose personal liability on the officers even though they were fully complying with the commitment statute. It is our opinion that KRS 202A.990 does nothing more than provide a criminal remedy where persons are negligently hospitalized by virtue of official action as well as provide a criminal remedy for those involuntarily hospitalized by virtue of deliberate and malicious allegations on behalf of the complainant. See also
Bischoff v. Hennessey, Ky., 251 S.W.2d 582 (1952) and
Wesley v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28 (1966).
In conclusion, it is our opinion that KRS 202A.200 does protect the county judge, his commissioners and physicians when they are proceeding properly under KRS 202A.050(1);(2). As stated previously, KRS 202A.200 also protects qualified mental health professionals performing their official duties. However, the court may not involuntarily hospitalize a person under KRS 202A.050 based on the affidavit of a qualified mental health professional. In addition, we also point out that the county judge or his commissioners may issue a warrant of arrest without first obtaining an affidavit as to the mental condition of the allegedly mentally ill person. This is true so long as the complaint filed before the court sets forth sufficient facts to satisfy the probable cause requirements of KRS 202A.050(2).