I got grilled � or at least it felt that way � by an extremely articulate and curious district court judge regarding a TB commitment proceeding under Tex. H&S Chapt 81.

The question is whether an agreed order is acceptable if the proposed patient waives his/her presence at the final hearing.

I argued, persuasively, �no� but I am wondering what others may have encountered. I first pointed out that a patient�s waiver of his presence is not ipso facto evidence that he is not contesting the necessity for inpatient commitment, given that his presence would involve removing him from his hospital bed, placing him in custody, transporting him downtown to the courthouse � all of which is more than in inconvenience for an ill person. In this case he was protesting that inpatient care is the least restrictive alternative for treatment.

Further, I would distinguish between hearings on temporary and extended orders � the latter specifically contemplates that testimony shall be heard and the court shall not make its findings solely on the basis of the medical certificate ordered but shall hear testimony.
Tex. Health & Safety Code 81.173.

The judge asked: �What public policy consideration is served by affording a hearing in such a circumstance?�

I responded that it honors the Constitutional rights of the proposed patient. I noted that it is true that there is no caselaw in Texas on commitments for communicable disease; however, the language of the statute tracks that of the mental health code and involves a deprivation of liberty for an extended period. With regard to mental health commitments there is a plethora of caselaw on the necessity for attention to procedural due process � and judicial review. For example, in Humphrey v. Cady, the Supreme Court held that due process should be afforded in such circumstances where a person was to be deprived of his liberty for an extended period and that a person �who could live safely in freedom� was not to be confined. Justice Fortas once stated in Kent v. US - while speaking of the right to counsel in a juvenile case- that such was not �a grudging gesture to a ritualistic requirement. It is of essence of justice.� Much the same can be said of attention to statutory procedural requirements when civil commitment will impose a deprivation of liberty.

The judge agreed in this case. But what has been your experience?

This does track the MH statutes somewhat, though filing in District Court is different from MH. Also, the local public health authority had to interact with Austin (State Health Dept. General Counsel's Office) and get documentation of their approval of the doctor's diagnosis and actions before we could present the petition.

It may be that the judge is taking the view that the ill person wants to get better. Not so always. We had a woman from another country with isoniazid-resistant TB, and she and her family stubbornly maintained that she was "not really ill". She became infectious and we were forced to do a protective custody, and at the extended hearing not only presented testimony from the doctor, but also from other people to show her attitude and overt acts disregarding the doctor's quarantine orders. (Her husband testified, through a translator, that she should be sent home and she would follow orders. THIS time.)

Given that this family was from an ex-communist republic, I think the hearing was a good example of America's due process in the curtailment of an individual's liberty.

Incidentally, we had never had such a case before, and we were really scrambling. The Dept of State Health Services (512-458-7111) and the OAG were invaluable. This family's extended order has been modified, since they moved to another state after her release from the CHest Hospital (she's still under outpatient care, and court order).

I know a lot more about TB than I ever wanted to know, and if you've followed the story of the recent South African strain that's resistant to every drug and has killed 52 out of 53 patients, you might want to review the law and the statutes before you are forced to.

It's a deadly serious disease, even in its treatable form.

If a TB patient is infectious, presents and has presented a danger to the public health, then you need a court order. Testimony is required by statute.

Unless the patient is infectious, inpatient treatment is not the least restrictive. Even an infectious patient who will rigorously follow quarantine can be treated at home.

Re: caselaw - there are a few Texas cases. L.G. v. Texas, 775 S.W. 2d 758 (1989) & others.