In re MH 2011-000914

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) IN RE MH2011-000914 DIVISION ONE FILED: 03/27/2012 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-MH 11-0054 DEPARTMENT A O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. MH2011-000914 The Honorable Veronica Brame, Judge Pro Tempore VACATED William G. Montgomery, Maricopa County Attorney by Anne C. Longo Geraldine L. Roll Deputy County Attorneys, Civil Division Attorneys for Appellee Phoenix Marty Lieberman, Maricopa County Legal Defender by Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 We are asked to determine whether an affidavit from an evaluating allow physician the persistently trial or satisfied court acutely to the statutory conclude disabled. that Because we requirements to Appellant was find the that affidavit was not legally sufficient, we vacate the involuntary treatment order. FACTS ¶2 Appellant was admitted to Desert Vista Hospital after her husband filed an emergency application for a court-ordered evaluation. The subsequent petition for involuntary treatment and the supporting affidavits of Drs. Andrew Parker and Marcelle Leet alleged that Appellant was a danger to others and persistently or acutely disabled. 1 ¶3 At the hearing, Dr. Parker testified that he spent a minute to two with Appellant because she declined to have a physical examination and requested a lawyer. 2 He, however, reviewed her chart, and diagnosed her with a psychotic disorder and a mood disorder. Although he did not attempt to interview her again, 3 he testified he was confident that his review of her chart and sufficient his brief information interaction to form with an her opinion provided about him her with mental state. 1 At the hearing, the State conceded that it had not proven that Appellant was a danger to others by clear and convincing evidence, and the court dismissed the allegation. 2 Dr. Parker did not try to ascertain whether Appellant would speak with him if her attorney were present. 3 The doctor received the assignment at approximately 10:00 a.m. and did not immediately conduct the evaluation because Appellant was taking a shower. He returned later, briefly spoke with her, and submitted his assessment by 11:00 a.m. so that it could be transcribed and timely filed with the court. 2 ¶4 The parties stipulated to the admission of Dr. Leet s affidavit in lieu of her testimony. The affidavit recited that Dr. Leet met with Appellant and explained the purpose of the interview, and participate. that Appellant understood and agreed to Dr. Leet concluded that Appellant suffered from a psychotic disorder, not otherwise specified, because Appellant denied observed psychotic symptoms and was unable to acknowledge the circumstances that prompted the petition. ¶5 Appellant testified on her own behalf. She said she spoke with Dr. Parker for not more than two minutes, that she never refused to speak with him, and that he left after she declined what she perceived as his offer to defend her in the petition proceedings. Her son also testified, and noted that his mother sometimes needed additional explanation before she was able to comprehend certain information. ¶6 After the hearing, the court determined that Appellant suffered from a mental disorder that rendered her persistently disabled, and that voluntary treatment. she was unwilling or unable to accept As a result, she was ordered to undergo combined inpatient/outpatient treatment not to exceed 180 and 365 days. We have jurisdiction 3 pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12 2101 (West 2012) 4 and 36 546.01 (West 2012). 5 DISCUSSION A. Standard of Review ¶7 We independently review whether the doctor s affidavit was legally sufficient because interpreting the affidavit and the relevant statutes involves questions of law. In re MH 2007- 001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418, 423 (App. 2008) (citing In re Jesse M., 217 Ariz. 74, 76, ¶ 8, 170 P.3d 683, 685 (App. 2007); In re MH 2006 000749, 214 Ariz. 318, 321, ¶ 13, 152 P.3d 1201, 1204 (App. 2007); Little v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App. 1995)). Mindful of the liberty interests at stake, we narrowly construe civil commitment statutes. Id. (citing In re MH 2006-000490, 214 Ariz. 485, 488, ¶ 10, 154 P.3d 387, 390 (App. 2007)); see also In re MH-201000029, 225 Ariz. 500, 501, 4 Unless indicated otherwise, we cite the current version of a statute if no revisions material to this decision have occurred since the hearing and order. 5 Although Appellant s court-ordered treatment may soon be completed, we may decide an issue that is moot if it is capable of repetition but evades review and concerns a matter of statewide importance. In re Commitment of Alleged Mentally Disordered Pers., 181 Ariz. 290, 292, 889 P.2d 1088, 1090 (1995) (citing Sherrill v. Dep t of Transp., 165 Ariz. 495, 497, 799 P.2d 836, 838 (1990); In re MH 92-020, 176 Ariz. 616, 617, 863 P.2d 908, 909 (App. 1993)). Furthermore, Appellant has an interest in the resolution of this matter. See In re MH 2007001236, 220 Ariz. 160, 165 n.3, ¶ 12, 204 P.3d 418, 423 n.3 (App. 2008). 4 ¶ 5, 240 P.3d 1262, 1263 (App. 2010), rev. denied (Apr. 19, 2011) (quoting In re Burchett, 23 Ariz. App. 11, 13, 530 P.2d 368, 370 (1975)) ( A lack of strict compliance renders the proceedings void. ). ¶8 [W]e view the evidence in the light most favorable to sustaining the order, In re MH 2008-000438, 220 Ariz. 277, 278, ¶ 6, 205 P.3d 1124, 1125 (App. 2009) (citing Cimarron Foothills Cmty. Ass'n v. Kippen, 206 Ariz. 455, 457, ¶ 2, 79 P.3d 1214, 1216 (App. 2003)), and determine whether the State burden of proof by clear and convincing evidence. 36-540(A) (West 2012). met its See A.R.S. § Even if the court properly applied the law, we may vacate a decision based on factual findings that are either clearly evidence. erroneous or unsupported by substantial MH 2006 000749, 214 Ariz. at 321, ¶ 13, 152 P.3d at 1204 (citing In re MH 94 00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995)). B. Sufficiency of the Affidavit ¶9 a Appellant argues that the commitment order is void as matter of law because the statutory criteria § 36 533(B) (West 2010) 6 were not satisfied. in A.R.S. A petition for involuntary treatment 6 Sections 36-501(14), -533(B), and -539(B) were amended effective April 25, 2011. See 2011 Ariz. Sess. Laws, ch. 219, § 2 (1st Reg. Sess.). 5 shall be accompanied by the affidavits of the two physicians who conducted the examinations during the evaluation period . . . . The affidavits of the physicians shall describe in detail the behavior which indicates that the person, as a result of 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 examination 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. Id. (emphasis added). In the context of mental health proceedings, an examination consists of an exploration of the person's past leading up exploration complete 2010). psychiatric to of the the physical history person's person's and of the presentation, present examination. mental A.R.S. § circumstances a psychiatric condition 36-501(14) and a (West The evaluating physician must personally conduct the comprehensive exam and prepare an affidavit that includes the physician s personal observations of the behavior that may have indicated the presence of mental illness. MH 2008-000438, 220 Ariz. at 279, ¶¶ 11, 14, 205 P.3d at 1126; A.R.S. § 36-533(B). Furthermore, standard, the to meet the physician's clear opinion and convincing must reasonable degree of medical certainty. Ariz. at 169, ¶ 29, 204 P.3d at 427. 6 be evidentiary expressed to a MH 2007-001236, 220 ¶10 Appellant first contends that Dr. Parker s hurried attempt to interview her did not constitute an examination of the patient deficient. and See Although there therefore A.R.S. are §§ renders his 36-501(14), circumstances affidavit -533(B). when the legally We agree. examination requirement may be excused, those facts are not present here. Compare In re MH 1140 6 93, 176 Ariz. 565, 568, 863 P.2d 284, 287 (App. 1993) (physician not required to engage in a confrontation with a mentally ill patient or have the patient physically restrained to conduct an examination) with MH 2008000438, 220 Ariz. at 281, ¶ 18, 205 P.3d at 1128 (proceedings based on affidavit submitted without further effort to examine a patient whose medicated state precluded attempted examination void for non-compliance). ¶11 We are not persuaded by the State s argument that requesting an attorney relieves the evaluating physician of the obligation to conduct an examination. 7 See MH 94-00592, 182 Ariz. at 446, 897 P.2d at 748 (statutory requirement excused only if clear and convincing proof demonstrates compliance was impracticable). Whereas excessive verbal abuse, physical abuse, repeatedly walking away when the physicians attempt to discuss the matters, or nonresponsiveness constitutes conduct 7 An emergency patient who is detained for the purpose of a court-ordered evaluation has the right to consult an attorney. A.R.S. § 36-528(D) (West 2012). 7 that excuses further attempts to examine a patient, id., Dr. Parker ended the interview with Appellant even though she had not demonstrated a similar refusal to participate. See also MH 2007-001236, 220 Ariz. at 167 n.10, ¶ 22, 204 P.3d at 425 n.10 (citing MH 1140 6 93, 176 Ariz. at 567-68, 863 P.2d at 286-87) (patient cannot thwart examination and later claim State did not meet its burden). We find that Appellant did not frustrate the examination in a manner that made a later attempt to conduct the interview futile. Indeed, the fact that she agreed to speak with Dr. Leet after the purpose of the interview was explained to her suggests that an examination was not impracticable. ¶12 Dr. Parker testified that the time constraints of dictating his report and getting it to the transcriber so that it could be timely filed precluded him from making any further attempts to examine Appellant. Time constraints, however, do not excuse strict compliance with the statute. See MH 2008- 000438, 220 Ariz. at 280, ¶ 18, 205 P.3d at 1127; see also In re Commitment of Alleged Mentally Disordered Pers., 181 Ariz. 290, 293, 889 P.2d consuming The doctor affidavit 1088, statutory did devoid not of 1091 (1995) requirements conduct a an detailed (even warrant difficult strict examination description and of and time compliance). submitted the an observed behavior that led him to conclude Appellant was persistently or 8 acutely disabled, as required by § 36 533(B). As a result, the affidavit did not comply with the statute. C. Sufficiency of the Evidence ¶13 Appellant demonstrate that next she argues was that persistently the or evidence acutely did not disabled because Dr. Parker s testimony did not provide specific facts to support his diagnoses. 8 In order to prove that a patient is persistently or acutely disabled, the State must establish that the alleged mental disorder: (a) If not treated has a substantial probability of causing the person to suffer or continue to suffer severe and abnormal mental, emotional or physical harm that significantly impairs judgment, reason, behavior or capacity to recognize reality. (b) Substantially impairs the person's capacity to make an informed decision regarding treatment, and this impairment causes the person to be incapable of understanding and expressing an understanding of the advantages and disadvantages of accepting treatment and understanding and expressing an understanding of the alternatives to the particular treatment 8 Appellant also argues that the court erred by admitting Dr. Parker s affidavit over her objection. The court did not abuse its discretion when it admitted the affidavit in addition to the doctor s testimony. See MH 2007-001236, 220 Ariz. at 167, ¶ 20, 204 P.3d at 425 (citing In re MH 2006 000490, 214 Ariz. 485, 488 89, ¶ 13, 154 P.3d 387, 390 91 (App. 2007)) (physician may testify to cure defects in affidavit); see also A.R.S. § 36-539(D) (West 2012) (all rules of evidence not inconsistent with subsection (B) apply in civil commitment proceedings); Waddell v. Titan Ins. Co., 207 Ariz. 529, 536, ¶ 28, 88 P.3d 1141, 1148 (App. 2004) (citing Elia v. Pifer, 194 Ariz. 74, 79, ¶ 22, 977 P.2d 796, 801 (App. 1998)) (appellate court reviews evidentiary rulings for an abuse of discretion). 9 offered after the advantages, disadvantages and alternatives are explained to that person. (c) Has a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment. A.R.S. § 36-501(33). [T]he bare assertion that the statutory criterion was met, without any explication of the facts that show it was evidence. met, does not constitute clear and convincing MH 94-00592, 182 Ariz. at 447 n.4, 897 P.2d at 749 n.4 (citing State v. Renforth, 155 Ariz. 385, 387, 746 P.2d 1315, 1317 (App. 1987)). ¶14 Dr. Parker s affidavit did not contain any facts to support his conclusion that Appellant was incapable of having good judgment, reasoning, or capacity to recognize reality and that she was unable treatment. 9 Such insufficient to to make conclusory meet the an informed statements, statutory decision without regarding more, requirements. are Id. Furthermore, Dr. Parker did not provide any facts at trial to support his conclusions about Appellant s mental health. See MH 2007-001236, 220 Ariz. at 167, ¶ 20, 204 P.3d at 425 (citing MH 2006 000490, 214 Ariz. at 488 89, ¶ 13, 154 P.3d at 390 91) (testimony at hearing may cure deficient affidavit). Thus, his testimony did not resolve the defects in his affidavit, and Dr. 9 Appellant also argues that Dr. Leet s affidavit is similarly deficient. We need not address this issue in light of the fact that Dr. Parker s affidavit and testimony were insufficient to support the court s commitment order. See MH 2007-001236, 220 Ariz. at 170-71, ¶ 32, 204 P.3d at 428-29 (citations omitted). 10 Leet s sole burden. affidavit is not enough to meet the statutory Id. at 170, ¶ 32, 204 P.3d at 428 (citing A.R.S. §§ 36 501(12)(a), (33), 533(B), 539(B), and 540(A)). ¶15 Although the court accepted Dr. Parker s conclusions to support its findings and order, because the affidavit was legally insufficient the involuntary treatment based on substantial evidence and is void. order was not Consequently, we vacate the order. CONCLUSION ¶16 Based on the foregoing, the involuntary treatment and commitment order is vacated. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ ANN A. SCOTT TIMMER, Judge /s/ ________________________________ ANDREW W. GOULD, Judge 11

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