In re MH2011-000074
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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 MH2011-000074 ) ) ) ) ) __________________________________) DIVISION ONE FILED: 08/18/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-MH 11-0032 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH2011-000074 The Honorable Veronica W. Brame, Judge Pro Tempore VACATED William G. Montgomery, Maricopa County Attorney By Bruce P. White and Anne C. Longo, Deputy County Attorneys Attorneys for Appellee Phoenix Bruce Peterson, Maricopa County Legal Defender By Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Appellant seeks to vacate the superior court s order for involuntary mental health treatment, arguing the order is void because the State did not strictly comply with applicable statutes governing court-ordered treatment. 1 For the following reasons, we vacate the order. BACKGROUND ¶2 In response services by Appellant s Appellant by phone to to a call sister, check made who on to was his emergency unable medical to well-being, contact paramedics delivered Appellant to the emergency room at Phoenix Baptist Hospital. Appellant experiencing short-term was disoriented, memory loss, and appeared mumbled to be repeatedly about religious topics. ¶3 A few court-ordered days later, evaluation Dr. Bunuel ( PCOE ), filed alleging a petition that for Appellant suffered from a mental disorder and was in need of supervision, care, and treatment. He noted that Appellant had a history of bipolar disorder mania and was experiencing manic symptoms, including pressured speech and religious preoccupation. He also noted that although Appellant had a seizure disorder, he had sub-therapeutic levels of anti-seizure medication in his system, which could lead to life-threatening seizures. that Appellant was unable to undergo a Bunuel stated voluntary evaluation because Appellant did not believe he needed medication for the 1 Appellant recently filed a motion for accelerated appeal pursuant to ARCAP 29(a)(2). Because this decision is being filed well before any deadline that would be imposed by ARCAP 29(d), we deny the motion as moot. 2 seizure disorder disorder. and Attached admitted to he the probably PCOE was an had a mental application for involuntary evaluation, as well as an application for emergency admission for evaluation, both completed by a crisis counselor with Compass Mental Health. The superior court ordered that Appellant be involuntarily detained and evaluated. ¶4 for Following court-ordered Arizona Revised evaluations treatment Statutes by two ( PCOT ) ( A.R.S. ) physicians, was filed section a petition pursuant 36-533 to (2009), alleging that Appellant was persistently or acutely disabled as a result of a mental disorder and inpatient and outpatient treatment. recommending combined The PCOT was supported by affidavits completed by the evaluating physicians, Dr. Boskailo and Dr. Dockins, who both concluded persistently or acutely disabled. that Appellant was Dockins completed the section marked Physical Examination on the affidavit but Boskailo left it blank. The court ordered detention of Appellant, appointed counsel to represent him, and set a hearing on the PCOT. ¶5 At the hearing, the State offered the testimony of Boskailo and Dockins, as well as an emergency room nurse and a crisis counselor. Appellant testified on his own behalf and offered the testimony of his family and friends. The court found that Appellant was persistently or acutely disabled, was in need of psychiatric treatment, and was unwilling or unable to 3 accept voluntary treatment. The court ordered Appellant to undergo a combination of inpatient and outpatient treatment for a period not to exceed 365 days, with inpatient treatment not to exceed 180 days. Appellant timely appealed. DISCUSSION ¶6 treatment Appellant must asserts be vacated that because the order Boskailo s for involuntary examination of Appellant failed to strictly comply with A.R.S. §§ 36-533, -539 (Supp. 2010) and -501(14) (Supp. 2010), 2 as interpreted in Pinal Cnty Mental Health No. MH-201000029, 225 Ariz. 500, 240 P.3d 1262 (App. 2010). Appellant contends that Boskailo s failure to conduct a complete physical examination renders the superior court s treatment order void. ¶7 Appellant, however, failed to raise this argument to the superior court. Although appellate courts generally will not address issues raised for the first time on appeal, see Reid v. Reid, 222 Ariz. 204, 208, ¶ 16, 213 P.3d 353, 357 (App. 2009), given the liberty interests at stake, this case presents one of the extraordinary circumstances in which an error not presented to the trial court may be presented to an appellate 2 We cite to the versions of the statutes that were in effect at the time of these proceedings. 4 court in the first instance, 3 see In re MH 2006-000023, 214 Ariz. 246, 249, ¶ 11, 150 P.3d 1267, 1270 (App. 2007) (vacating the trial court s involuntary treatment order). ¶8 Because serious involuntary deprivation of commitment liberty, applicable statutes is required. strict may result compliance with strictly comply renders the a the In re Coconino Cnty No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995). to in proceedings void. Failure In re Burchett, 23 Ariz. App. 11, 13, 530 P.2d 368, 370 (1975). ¶9 which At the time of these proceedings, A.R.S. § 36-533, governs petitions for court-ordered treatment, read as follows: B. The petition shall be accompanied by the affidavits of the two physicians who conducted the examinations during the evaluation period and by the affidavit of the applicant for the evaluation, if any. 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 3 Although Appellant failed to raise this argument before the superior court, he did not stipulate to admission of the affidavits at the hearing, and therefore did not invite the error. See In re MH2009-002120, 225 Ariz. 284, 287, ¶ 8, 237 P.3d 637, 640 (App. 2010) (finding waiver under circumstances where the issue was not raised before the trial court and the appellant invited the error by stipulating to the admission of the physicians affidavits into evidence). Instead, he objected to the introduction of both affidavits on the grounds that the doctors were available to testify, but his objections were overruled. 5 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. The physicians who execute the affidavits, absent a stipulation, were required to testify at the hearing on the petition to their personal examination (evidence required of shall the patient. include the A.R.S. testimony § 36-539(B) of the two physicians who performed examinations in the evaluation of the patient). For Appellant s purposes commitment of these proceedings statutes, in the at the superior time of court, examination was defined as exploration of the person s past psychiatric history and of the circumstances leading up to the person s presentation, a psychiatric exploration of the person s present mental condition and a complete physical examination. A.R.S. § 36-501(14) (emphasis added). 4 ¶10 In Pinal Cnty Mental Health No. MH-201000029, 225 Ariz. 500, 240 P.3d 1262 (App. 2010), this court rejected the State s argument that a complete physical examination requires 4 These statutes have since been amended. A.R.S. § 36-533 now requires the affidavit include results of a complete physical examination of the patient if this is relevant to the evaluation. A.R.S. § 36-533 (West 2011) (emphasis added). Examination is now defined as . . . a complete physical examination that is conducted pursuant to § 36-533, subsection B[.] A.R.S. § 36-501(14) (West 2011). Additionally, physicians are now required to testify to their personal observations of the patient. A.R.S. § 36-539(B) (West 2011). 6 nothing more than a visual presentation and demeanor. assessment of the patient s We determined that [t]ogether, §§ 36-533(B) and 36-501(14) require that two physicians must each personally conduct patient. 225 a complete Ariz. interpreted complete examination directed at we 502, ¶ 7, physical to the health of the patient. Further, physical examination 240 P.3d examination physical as at as well as of the 1264. a We physical the mental Id. at 503, ¶ 14, 240 P.3d at 1265. clarified that such an examination required a physician to conduct a hands-on, head to foot examination, assess[ing] the patient s various bodily systems using various diagnostic techniques. Id. at 504, ¶ 15, 240 P.3d at 1266. Therefore, that we concluded a psychiatrist s teleconference evaluation failed to strictly comply with the statute, and we vacated the involuntary treatment order. ¶11 Here, Physical both affidavits Examination, which contained included items Signs, Cardiovascular, and Neurologic. this section, noting, inter alia, a that heading titled such Vital as Dockins completed Appellant s [h]eart sounds are noted to have regular rate and rhythm, Appellant s [g]ait is sym[m]etrical and within normal limits, and patient demonstrates no focal neurological however, left this section blank. deficits. Boskailo, Further examination of the affidavit reveals that Boskailo does not reference any physical 7 examination he may have conducted of Appellant. Moreover, at the hearing, although Boskailo testified that Appellant suffered from temporal lobe epilepsy, and noted that Appellant had low levels of anti-seizure medication in his system, Boskailo never gave any indication that he conducted a physical examination as contemplated by MH-201000029. See A.R.S. § 36-539(B) (the physician must testify regarding his personal examination of the patient ). Accordingly, because the statutory requirements were not strictly complied with, we vacate the superior court s order for involuntary treatment. 5 See In re MH 2006-000490, 214 Ariz. 485, 488, ¶ 10, 154 P.3d 387, 390 (App. 2007) (strict compliance with statutory requirements in civil commitment proceedings is imperative because such proceedings may result in a serious deprivation of appellant s liberty interests ) (citation omitted); see also In re Pinal Cnty Mental Health No. MH-201000076, 226 Ariz. 131, __, ¶¶ 4-5, 244 P.3d 568, 569 (App. 2010) (relying on Mental Health No. MH-201000029 to vacate treatment and commitment order because psychiatrist failed to 5 Because we decide this case on this basis, we do not address Appellant s argument that the order must be vacated because insufficient evidence existed to support the superior court s commitment order. 8 conduct a complete physical examination by interviewing the appellant remotely through video conferencing technology). 6 6 The State, in a footnote, respectfully urges, as authorized by Neil B. McGinnis Equip. Co. v. Henson, 2 Ariz. App. 59, 62, 406 P.2d 409, 412 (1965), and Arizona Supreme Court Rule 42, E.R. 3.1, that this court reach a different conclusion [than the MH-201000029 case] for the reasons stated herein. Because the State fails to support this assertion with legal argument, however, we cannot discern what the State is attempting to argue. Although this could result in abandonment and waiver of this issue, see ARCAP 13(a)(6), in our discretion, we briefly address the State s assertion. The State appears to suggest that MH-201000029, a Division II case, is not binding on this court. See Neil B. McGinnis, 2 Ariz. App. at 62, 406 P.2d at 412. Although prior decisions of this court are not binding on us, we find no reason to depart from the court s holding in MH-201000029 that two physicians must each perform a complete physical examination of the patient before a commitment order may be issued. See State v. Patterson, 222 Ariz. 574, 580, ¶ 19, 218 P.3d 1031, 1037 (App. 2009) (The Court of Appeals consider[s] decisions of coordinate courts as highly persuasive and binding, unless we are convinced that the prior decisions are based upon clearly erroneous principles, or conditions have changed so as to render these prior decisions inapplicable ) (citations omitted). To the extent that the State relies on Neil B. McGinnis for the proposition that the court may look to subsequent changes of the law by the legislature in support of its own view of the prior act, this is only applicable when an ambiguity in the law exists, which is not present here. See Neil B. McGinnis, 2 Ariz. App. at 62, 406 P.2d at 412. Moreover, that rule of statutory construction applies only when the statute at issue has not been substantively changed by the legislature, and a question arises as to the meaning of its terms. See id. Under those circumstances, it is appropriate to consider subsequent legislation with similar language in an effort to understand the meaning of the statute at issue. See Moore v. Pleasant Hasler Const. Co., 51 Ariz. 40, 48, 76 P.2d 225, 228 (1937) (When the legislature employs in a subsequent clause of the same act or in later legislation on the same subject language clarifying a doubtful expression theretofore used, the court should give that language the meaning the legislature intended. ) (emphasis added). Furthermore, it is without question that pursuant to Arizona Rule of Supreme Court 9 ¶12 The State asserts, however, that we should not rely on MH-201000029 legislative because intent the of court the there statutes, misinterpreted as reflected the by the legislature s swift[] reject[ion] of MH 201000029 s definition of complete physical examination. Although the legislature amended the pertinent statutory provisions after MH-201000029, these amendments were not effective until April 25, 2011, four months after conclusion of Appellant s hearing on the PCOT, and the statute does not have retroactive application. See State v. Carver, 1 CA-CR 10-0594, 2011 WL 2547027, at *5, ¶ 19 (Ariz. App. June 28, 2011). The amendment therefore does not apply here and we express no opinion as to whether it would change our conclusion. ¶13 The State also relies on language from our prior cases stating that an examination consists of not the typical annual physical but a component of a psychiatric examination, which includes observing the patient s demeanor and physical presentation, and can aid in diagnosis. See In re MH 2008- 000438, 1124, 220 Ariz. 277, 279-80, 205 P.3d 1126-27 (App. 2009); see also In re MH 2009-002120, 225 Ariz. 284, 290, ¶ 17, 237 P.3d 637, 643 (App. 2010) (relying on MH 2008-000438). We acknowledged this case precedent in MH-201000029, but observed 42, ER 3.1, Appellant had a good faith basis in law for bringing this appeal. 10 that the question of what constitutes a complete physical examination was neither squarely before the court in MH 2008000438 nor essential to the court s disposition. 505, ¶ 19, 240 P.3d at 1267. 225 Ariz. at Those cases are inapplicable here. CONCLUSION ¶14 For the foregoing reasons, we vacate the superior court s order for involuntary mental health treatment. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ LAWRENCE F. WINTHROP, Chief Judge /s/ ___________________________________ PETER B. SWANN, Judge 11
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