In re MH 2008-001795

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) IN RE MH 2008-001795 DIVISION ONE FILED: 09/29/09 PHILIP G. URRY,CLERK BY: DN 1 CA-MH 08-0049 DEPARTMENT C OPINION Appeal from the Superior Court in Maricopa County Cause No. MH 2008-001795 The Honorable Benjamin E. Vatz, Commissioner AFFIRMED Andrew P. Thomas, Maricopa County Attorney by Anne C. Longo, Deputy County Attorney Victoria Mangiapane, Deputy County Attorney Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Judge ¶1 Appellant, a twenty-year-old male, seeks relief from an order committing him to involuntary mental health treatment. Specifically, he argues that the superior court erred in finding a psychiatric resident physician with a one-year training permit qualifies as a licensed physician for the purpose of completing a petition for court-ordered evaluation. For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On August 4, 2008, Appellant s sister, his legal guardian, filed an application for involuntary evaluation. application stated that Appellant was taking Her psychiatric medication and was subject to angry outbursts, wandering, and complaints of excessive thirst. As a result of this application, on August 6, 2008, Dr. Sami Ahad, a first-year psychiatric resident physician holding a one-year training permit, petitioned the Maricopa County Superior Court for an involuntary mental health evaluation of Appellant. Subsequently, the court entered a detention order and Desert Vista Behavioral Health Center admitted Appellant for court- ordered evaluation. ¶3 On separate evaluations, director of petition August for Appellant. Desert 11, 2008, Dr. the dismiss proceedings. physicians Hughes, Behavioral Vista same two Michael court-ordered On after Health treatment, day, deputy Center, which Appellant performed medical filed a was filed served on a motion to In his motion, Appellant argued that Dr. Ahad was not a licensed physician under the applicable statute and therefore was not qualified evaluation. 2 to file a petition for ¶4 On Appellant s August motion 15, to 2008, dismiss the and, superior following court an denied evidentiary hearing, ordered that Appellant undergo combined inpatient and outpatient treatment for a period not to exceed 365 days, with inpatient treatment not to exceed 365 days. ¶5 Appellant filed a timely notice of appeal, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-2101(K) (2003) and 36-546.01 (2009).1 ANALYSIS ¶6 The essential characteristics of the statutory scheme in Arizona for a civil commitment proceeding are as follows: To begin a civil commitment proceeding, a responsible individual applies for a court-ordered evaluation of another individual. A.R.S. § 36-520(A) (2009).2 The application must allege that the person is, as a result of a mental disorder, a danger to self or others, persistently or acutely disabled, or gravely disabled and also that the person is unwilling or unable to undergo a voluntary evaluation. Id. The statute prescribes 1 Appellant appeals from a treatment order that has expired; therefore this appeal is moot. We may consider issues that are moot when they are of great public importance or are capable of repetition yet evading review. In re MH 2005-001290, 213 Ariz. 442, 443, ¶ 7, 142 P.3d 1255, 1256 (App. 2006). Given the liberty interest at stake and the high probability of repetition, we elect to decide this appeal on its merits. 2 We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 3 the proper form for the application, which is submitted to the screening agency for review. A.R.S. § 36-520(B). Upon receipt of the application, the screening agency reviews the application to determine whether reasonable cause exists to believe that the person is persistently or acutely disabled, gravely disabled, or likely to present a danger to self or others. 521(A) (2009). A.R.S. § 36- If reasonable cause exists, the agency prepares and files a petition for court-ordered evaluation. 521(D). A.R.S. § 36- The petition must contain certain elements, including the allegation that the proposed patient is, as a result of a mental disorder, a danger to self or others, persistently or acutely disabled, or gravely disabled, and unwilling or unable to undergo voluntary evaluation. A.R.S. § 36-523(A)(4) (2009). The petition must also state the facts upon which that belief is based. A.R.S. § 36-523(A)(5). The court subsequently reviews the petition for evaluation and determines if reasonable cause exists, in which case the court orders an evaluation. A.R.S. § 36-529(B) (2009). ¶7 The court-ordered evaluation is a professional multidisciplinary analysis based on data describing the person s identity, biography and medical, psychological and social conditions, and must be carried out by a group of persons as described in A.R.S. § 36-501(12) (2009). examination by [t]wo licensed 4 That statute requires physicians, who shall be qualified psychiatrists, if possible, or at least experienced in psychiatric matters. explicitly training mentions may play A.R.S. § 36-501(12)(a). the in role the that The statute also psychiatric court-ordered residents evaluation. in Id. Specifically, a resident may examine the person in place of one of the psychiatrists if he is supervised in the examination and preparation qualified Id. of the affidavit psychiatrist and appointed testimony to assist in in court his by a training. A court-ordered evaluation conducted on an inpatient basis must be completed in less than seventy-two hours. 530(B) (2009). A.R.S. § 36- If the evaluators determine that the person is a danger to self or others, they may file a petition for courtordered treatment. A.R.S. § 36-531(B). Under A.R.S. § 36-540 (2009), the maximum period of inpatient treatment that the court may order ranges from ninety days for a person found to be a danger to self to 365 days for a person found to be gravely disabled. ¶8 In this case, we address whether a psychiatry resident with a one-year license has the authority to file a petition for evaluation, Because the precursor involuntary to the treatment court-ordered proceedings may evaluation. result in a serious deprivation of a person s liberty interests, statutory requirements followed. must be strictly construed and scrupulously In re Maricopa County Superior Court No. MH 2001- 5 001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002). When addressing an issue of statutory interpretation, our review is de novo. State v. Ontiveros, 206 Ariz. 539, 541, ¶ 8, 81 P.3d 330, 332 (App. 2003). ¶9 Appellant alleges that a petition for evaluation must be completed by a medical director and that Dr. Ahad does not qualify under the statutory definition. Neither A.R.S. § 36- 523, which prescribes the content of a petition for evaluation, nor A.R.S. § 36-521(H), which describes the procedures for prepetition screening, specify that the petitioner be a medical director. Rather, A.R.S. § 36-521(H) specifies only that [t]he petition shall be made in the form and manner prescribed by the deputy director. The deputy director is the deputy director of the division of behavioral health in the Arizona Department of Health Services. A.R.S. § 36-501(8). The deputy director has codified the form and manner of the petition for courtordered evaluation in the Arizona Administrative Code ( A.A.C. ) at R9-21-501 and its accompanying Exhibit A, Application for Involuntary Evaluation Ordered Evaluation. and Exhibit B, Petition for Court- The form prescribed for the Petition for Court-Ordered Evaluation, Exhibit B of the A.A.C., contains a blank line for filling in the name of the petitioner, identified as medical director. The A.A.C. does not, however, provide a definition of medical director. For that definition, we return 6 to A.R.S. § 36-501(24), which defines medical director as a psychiatrist, or other psychiatric matters. licensed physician experienced in It is undisputed that Dr. Ahad does not qualify as a psychiatrist. The question is whether he is a licensed physician for the purpose of submitting a petition for court-ordered evaluation. ¶10 A licensed physician is defined as a medical doctor or doctor of osteopathy who is licensed in this state. § 36-501(23). A.R.S. To qualify for a license to practice medicine in Arizona, a person must comply with the requirements set forth in A.R.S. §§ 32-1422 to -1426 (2008 & Supp. 2008). statutory requirements include graduating from The basic an approved medical school and successfully completing an approved twelvemonth internship, residency, Id. Additionally, A.R.S. or § clinical 32-1432.03 fellowship (2008) program. allows the executive director of the Arizona Medical Board to grant a one year training permit to a person who participates in a program at an approved medical school or hospital, pays a fee, and includes a written statement from the dean of the school or chairman of the hospital s graduate medical education program that provides the name of a doctor who will provide appropriate supervision of the participant. Id. The statute also specifies that the training permit holder may serve as a member 7 of an organized medical team but shall not practice medicine independently. ¶11 A.R.S. § 32-1432.03(3)(d). Appellant relies on In the Matter of Maricopa County Superior Court No. MH 2003-000058, 207 Ariz. 224, 84 P.3d 489 (App. 2004), as support for the proposition that a temporary permit holder is not a licensed physician within the meaning of A.R.S. § 36-501. distinguishable in We two disagree, important and ways. find that case First, that case addressed the role of residents in the preparation of a petition for court-ordered treatment, not the preliminary petition for evaluation. Second, patient prepared and in that both case, required supervision of other residents. residents evaluated affidavits under the the Not only is the petition at issue here a petition for evaluation and not a petition for court-ordered treatment, but Dr. Ahad was a resident and permit holder working under the supervision of the medical director, not a fellow resident. ¶12 He was not practicing independently. We agree with the superior court that the temporary permit grants a qualified license to practice when the resident physician is properly supervised by a licensed physician. In this case, Dr. Ahad was not working independently; rather, he was working under the direction of the medical director herself and was therefore working within the bounds of his qualified license when he filed the petition for court-ordered evaluation. 8 ¶13 Further, we reject any argument that the legislature s silence on the role of residents in the petition for courtordered evaluation process should residents from participation. be construed as precluding The legislature has designated the role that a one-year permit holder may play in the courtordered treatment process, while remaining silent as to the permit holder s role in other aspects of the civil commitment process, including the pre-evaluation stage. 501.12(A). psychiatric Once the resident court in an has See A.R.S. § 36- ordered approved an evaluation, training program a may examine the person in place of one of the psychiatrists if he is supervised in the examination and preparation of the affidavit and testimony in court by a qualified psychiatrist appointed to assist in his training. Id. Appropriate supervision under the statute does not require that the supervising physician be present during the examination; it only requires a showing that the supervising psychiatrist had some role examination of the patient by the resident. in the actual In re Maricopa County Superior Court No. MH 2002-000767, 205 Ariz. 296, 300, ¶ 1021 We 18, 69 P.3d 1017, (App. 2003). have difficulty concluding that the legislature would expressly approve a role for residents in the court-ordered evaluation process, where potentially a year of liberty is at stake, see A.R.S. § 36540(D), but, through legislative 9 silence, not allow the supervised participation of residents in the pre-evaluation stage where, at most, seventy-two hours of liberty is at stake. See A.R.S. § 36-530(B). ¶14 As a psychiatry resident working under a temporary permit, Dr. Ahad would have been allowed, under A.R.S. § 36501.12(A), to submit an affidavit to the court in support of a petition for court-ordered treatment. The bounds of his participation are outlined in detail in A.R.S. § 36-501.12(A). Although the petition for court-ordered evaluation stage of the proceedings is an important phase of the civil commitment proceeding, we reject Appellant s argument that Dr. Ahad, as a temporary permit holder, could be assigned a role in the evaluation of a patient for purposes of a petition for courtordered treatment, but not in the petition for evaluation stage. CONCLUSION ¶15 For the foregoing reasons, we affirm the superior court s findings and order for treatment. ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: __________/S/___________________ PETER B. SWANN, Presiding Judge 10 _________/S/______________ MICHAEL J. BROWN, Judge

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