IN RE MH 2011-002104

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE MH2011-002104 ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 06/21/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-MH 11-0093 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. MH2011-002104 The Honorable Veronica Brame, Judge Pro Tempore AFFIRMED ________________________________________________________________ William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Bruce B. White, Deputy County Attorney Attorneys for Appellee Phoenix Marty Lieberman, Maricopa County Legal Defender Phoenix By Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant ________________________________________________________________ J O H N S E N, Judge ¶1 Patient appeals the superior court s order committing her to involuntary treatment for a period of one year, with inpatient treatment not to exceed 180 days. For the following reasons, we affirm the superior court s order. FACTS AND PROCEDURAL HISTORY ¶2 A Evaluation, psychiatrist stating filed there a was Petition for reasonable Court-Ordered cause to believe Patient had a mental disorder that caused her to be a danger to herself and persistently or acutely disabled. An Application for Involuntary Evaluation was attached to the petition, as was an Application for Emergency Admission for Evaluation. The petition was granted, and after evaluations by Dr. Esad Boskailo and Dr. Michael Sweeney, Dr. Boskailo filed a Petition for Court-Ordered Treatment, alleging that Patient was a danger to herself and persistently or acutely disabled, and requesting that the outpatient court order her treatment. to undergo Affidavits combined by Dr. inpatient Boskailo and and Dr. Sweeney were attached to the petition. ¶3 In his affidavit, Dr. Boskailo diagnosed Patient as suffering from (Probable Undifferentiated Type. she presented with Diagnosis) Schizophrenia, During his evaluation, he noted that multiple types of delusions, mostly parasitosis, and that her records indicated she believed her body and home were infested with bugs. 2 He described her as verbal, tangential with significant flight of ideation. He explained that Patient refused to take any psychotic medication because she believes she is allergic to everything. When he asked Patient about other symptoms, she stated that she was ADHD, Autistic and PTSD and that she needed Valium and pain pills. In concluding that Patient is dangerous or disabled, Dr. Boskailo noted that before Patient was hospitalized in the instant case, she had been receiving psychiatric care and had been hospitalized three previous times for similar problems. Patient presented with several delusional systems, hallucinations, and her thinking process is very disorganized and she has no ability to recognize reality. Boskailo concluded that Patient needed Accordingly, Dr. further inpatient psychiatric care and treatment. ¶4 In diagnosed the Patient second as attached suffering affidavit, from Dr. (Probable Sweeney Diagnosis) Psychotic Disorder, Not Otherwise Specified), which rendered her persistently or acutely disabled. He stated records showed Patient arrived at the hospital complaining that her body had been infested with insects, and treatment, she she was found appeared to to have low be actively potassium. During psychotic. Dr. Sweeney tried on two separate days to speak with Patient, but on both days she was quite irritable and uncooperative and said she was 3 unable to answer questions because of migraine headaches. However, Dr. Sweeney s affidavit stated she did speak repeatedly in order to insult me and tell me that she was not going to cooperate with the evaluation. He described her mood as irritable and labile, and noted that [t]he content of her thinking was remarkable for her global paranoia and hostility. She claimed she was suffering from several vague, but dramatic physical ailments, but Dr. Sweeney opined that these complaints were likely delusional. Patient refused interactions to with engage Patient in led the him evaluation to conclude Though process, his that was she paranoid and disabled due to her psychiatric condition. ¶5 Dr. Boskailo and Dr. Sweeney both testified at the hearing on the petition. Dr. Boskailo reiterated his diagnoses of psychotic disorder and schizophrenia, describing the symptoms that led him to these diagnoses. He also testified that every day Patient remained untreated for her psychiatric problems, she suffered harm. Petitioner then moved to admit Dr. Boskailo s affidavit that accompanied the petition. The superior court admitted the affidavit over Patient s objection. ¶6 Dr. Sweeney then attempts to examine Patient. testified and described his two On both occasions Patient said she was having a migraine; she was very angry, hostile . . . and irrationally angry toward him. When he tried to get her to participate in the evaluation process, she insulted him and said 4 she was not going to talk to him. Dr. Sweeney testified Patient seemed disorganized and he could not get her to focus on any topic. He stated that even if he had had another three days to evaluate Patient, she did not want to engage and he doubted he would have been able to win her over. ¶7 Petitioner then moved for the admission Sweeney s affidavit: Petitioner: Okay. Did you have an opportunity did you prepare an affidavit and file Dr. Sweeney: Yes, I did. Petitioner: And you court, is that right? with this Petitioner: And did you have opportunity to review that affidavit? an Dr. Sweeney: Dr. Sweeney: Petitioner: copy of the court? Dr. Sweeney: filed it Yes, ma am. Yes, I did. Was it a true and accurate one that you filed with the Yes, I believe so. Petitioner: And Dr. Sweeney, anything in that affidavit that change, if you need to? is you there would Dr. Sweeney: No. No, I don t think so. I think it pretty well captures what my impressions were and my what my professional opinion was of the patient s condition. 5 of Dr. Patient s counsel objected, stating I d object because [Dr. Sweeney s] on the stand testifying, so we don t need for it to come in. The court admitted Dr. Sweeney s affidavit, and Patient proceeded to cross-examine Dr. Sweeney. ¶8 The hearing continued with testimony from additional requisite witnesses and from Patient herself. the After considering all the evidence, the superior court found by clear and convincing evidence that Patient was persistently or acutely disabled, unable to in need accept of psychiatric treatment treatment voluntarily. and The unwilling court or ordered Patient to undergo a combination of inpatient and outpatient treatment for a period of time not to exceed a total of 365 days, with impatient treatment not to exceed 180 days. ¶9 Patient timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-2101(A)(10) and 36-546.01 (West 2012). 1 DISCUSSION ¶10 Under A.R.S. § 36-533(B) (West 2012), a petition for court-ordered treatment shall be accompanied by affidavits from the two doctors who evaluated the patient, which must: [D]escribe in detail the behavior which indicates that the person, as a result of 1 Absent material revision after the relevant date, we cite a statute s current version. 6 mental disorder, is a danger to self or to others, is persistently or acutely disabled or is gravely disabled and shall be based upon the physician s observations of the patient and the physician s study of information about the patient. A summary of the facts which support the allegations of the petition shall be included. ¶11 At a hearing on a petition for involuntary treatment, A.R.S. § 36-539(B) (West 2012) requires that [t]he evidence presented by the petitioner or the patient shall include . . . testimony of the two physicians who participated in the evaluation of the patient, which may be satisfied by stipulating to the admission of the evaluating physicians affidavits that were attached to the petition. to their opinions personal concerning The physicians shall testify as observations whether the of the patient patient is, as and a their result of mental disorder, a danger to self or to others, is persistently or acutely disabled or is gravely disabled and as to whether the patient requires treatment. Id. Their testimony also shall state specifically the nature and extent of the danger to self or to others, the persistent or acute disability or the grave disability. Id. The requirements of A.R.S. § 36-539(B) are in addition to all rules of evidence and the Arizona rules of civil procedure that are not inconsistent with that subsection. A.R.S. § 36-539(D). 7 ¶12 Patient argues her treatment order should be vacated because evidence in support of the petition did not meet the requirements of the plain language of A.R.S. § 36-539(B). She argues Petitioner did not elicit the requisite testimony from Dr. Sweeney, instead relying on his affidavit to provide his opinions. 2 Patient argues that under the statute, a doctor s affidavit may be admitted in evidence either to supplement testimony or stipulate. in She inadmissible lieu of contends hearsay and testimony only if that Dr. Sweeney s did not satisfy both parties affidavit the was statutory requirement of testimony of [one of] the two physicians who performed examinations. ¶13 Addressing first the evidentiary issue, hearsay is a statement, oral or written, made at a time when there was no opportunity to cross-examine the declarant and offered to prove the truth of the words spoken or written. Fairway Builders, Inc. v. Malouf Towers Rental Co., 124 Ariz. 242, 258 59, 603 P.2d 513, 529 30 (App. 1979) (quotation omitted); see also Ariz. R. Evid. 801-802. ¶14 extent Dr. it Sweeney s recounted affidavit out-of-court constituted statements hearsay (Dr. to the Sweeney s observations and opinions) that Petitioner sought to introduce 2 Patient does not argue testimony was insufficient. that 8 Dr. Boskailo s hearing for the truth of their content; that is, to show Dr. Sweeney s medical opinion disabled. falls that Patient was acutely and persistently Although a hearsay statement may be admitted if it within an exception to the rule barring hearsay, Petitioner does not argue that any hearsay exception applies to the affidavit. ¶15 Evidentiary error, however, is reversible only if the objecting party was prejudiced. 458, ¶ 22, 112 P.3d 39, 45 State v. May, 210 Ariz. 452, (App. 2005). Patient does not explain how she was prejudiced by the erroneous admission of the affidavit, and we discern no such prejudice from the record. direct opinions examination, set forth Dr. in Sweeney his reaffirmed affidavit. the He On professional recounted his preparation of the affidavit and reaffirmed the statements he made there. As a result, there could not have been any confusion about his opinion of Patient s condition or the bases for that opinion. ¶16 Additionally, as noted, Dr. Sweeney did in fact testify in person at the hearing and therefore was subject to cross-examination. Contrary to Patient s argument on appeal, the court s decision to proceed in this fashion did not shift the burden to her to elicit testimony from Dr. Sweeney, but offered her the requisite opportunity to question him about the 9 opinions and observations recorded in his report and which he reaffirmed in his direct testimony. ¶17 We also decline to accept Patient s argument that we must reverse the treatment order because the evidence of Dr. Sweeney s opinion did not strictly comply with § 36-539(B). As noted, the statute provides that the two physicians who have evaluated the patient shall testify about their personal observations of the patient, their opinions concerning whether the patient is, as a result of mental disorder, a danger to self or to others [or] is persistently or acutely whether the patient requires treatment. provides that [s]uch testimony shall disabled and The statute further state specifically the nature and extent of the danger to self or to others, [or] the persistent or acute disability. ¶18 Patient argues that although § 36-539(B) allows a physician s testimony to be satisfied by an affidavit if the patient consents, the statutory requirement was not satisfied because consent. Dr. Sweeney s affidavit was not offered with her We conclude Dr. Sweeney s testimony reaffirming the substance of his affidavit satisfied the statute s requirements. Patient does not dispute that the affidavit contains the required elements concerning the physician s evaluation of the patient, professional opinion and the bases for that opinion. It would elevate form over substance to adopt Patient s argument 10 that the statute would be satisfied if Dr. Sweeney had read his affidavit aloud while testifying but was not satisfied by his testifying that the affidavit capture[d] his impressions and . . . [his] professional opinion . . . of the patient s condition. CONCLUSION ¶19 For the foregoing reasons, we affirm the court s treatment order. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PHILIP HALL, Judge 11 superior

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.