e-Journal Summary

e-Journal Number : 78295
Opinion Date : 10/13/2022
e-Journal Date : 10/26/2022
Court : Michigan Court of Appeals
Case Name : In re Ogden
Practice Area(s) : Healthcare Law, Probate
Judge(s) : Per Curiam - Markey, Sawyer, and Boonstra
Full Text Opinion

Continuing mental health treatment; Whether “personal examination” under MCL 330.1434 requires that the examiner & examinee occupy the same physical space; MCL 330.1434(4); “Person requiring treatment”; MCL 330.1401; MCL 330.1400(g); Ineffective assistance of counsel; Failure to object


The court concluded that “the Legislature did not intend to define ‘personal examination’ to require that the examiner and examinee occupy the same physical space.” Also, respondent’s counsel was not ineffective for failing to object to the doctor’s examination on this ground. Thus, it affirmed the probate court’s order for continuing mental health treatment. Respondent argued that “he was entitled to an in-person, rather than remote, personal examination under MCL 330.1434,” that examination via Telepsych was thus “inadequate, and that he was denied the effective assistance of counsel because counsel failed to object on this ground.” The court held that it was clear “the purpose of the personal examination is to assist the court in determining whether the person who is the object of a petition is a person requiring treatment.” It concluded that “a court’s determination of whether someone is a person requiring treatment requires an assessment of (1) whether that person suffers from a mental illness and (2) the impacts that the mental illness has on the person’s life or behavior. ‘Mental illness’ means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.’” It also determined that “[m]ental illness by definition manifests through thoughts and mood, so while it is possible that physical proximity might provide the examiner with insight into a person’s thoughts or mood, it is at least equally possible that an examination via a videoconferencing software platform—such as the ‘Telepsych’ platform utilized in this case—would be sufficient to gain such insight. Videoconferencing software permits the examiner to observe the examinee’s appearance, mannerisms and body language, as well as speech.”

Full Text Opinion