Appeal in Pima County Mental Health Service Action No. MH-1140-6-93., Matter of

• Decision Date: 16 November 1993
• Docket Number: CA-MH,No. 2,MH-1140-6-93,2
• Citation: 863 P.2d 284,176 Ariz. 565
• Parties: In the Matter of the APPEAL IN PIMA COUNTY MENTAL HEALTH SERVICE ACTION NO.93-0001.
• Court: Arizona Court of Appeals

Page 284

863 P.2d 284

176 Ariz. 565

In the Matter of the APPEAL IN PIMA COUNTY MENTAL HEALTH SERVICE ACTION NO. MH-1140-6-93.

No. 2 CA-MH 93-0001.

Court of Appeals of Arizona Division 2, Department B.

Nov. 16, 1993.

Howard Baldwin, Tucson, for appellant.

Stephen D. Neely, Pima County Atty. by Michael P. Callahan, Tucson, for appellee.

OPINION

ESPINOSA, Presiding Judge.

This appeal arises from an involuntary treatment order pursuant to A.R.S. § 36-501 et seq., directing that appellant R.S. be treated at the Arizona State Hospital for not more than 180 days, with out-patient treatment for up to 365 days. The issues raised on appeal are whether substantial evidence supported the trial court's finding of persistent or acute disability when R.S. was not provided explanations regarding advantages, disadvantages and alternatives to treatment as required by A.R.S. § 36-501(29)(b), and whether appellant's federal and state due process rights were violated by other alleged failures to comply with the commitment statutes. We affirm.

Facts and Procedural History

R.S. was, at the time of the order, in the care of the Arizona Center for Clinical Management (ACCM), with a history of mental illness dating from 1982. He had been diagnosed as suffering from paranoid schizophrenia. In February 1993, R.S. reportedly created a disturbance by walking in traffic at a busy intersection. The police sought to take him into custody but could not find him until March 3 when he went to ACCM to complain about his case worker. From there he was taken by ambulance to Kino Hospital, and, upon learning he was being admitted, signed in under a name other than his own, refused to cooperate in the admissions process, refused medication and examination, and refused to communicate with psychiatrists regarding his condition. He was subsequently involved in an incident in which he attempted to strike a Kino mental health technician.

On March 8, Dr. Robert Wolgamott, a psychiatrist, petitioned for court-ordered and custodial evaluations, and an order was signed the same day. Filed with the petitions was a screening report compiled by Dr. Wolgamott and R.S.'s caseworker. On March 11 a petition for court-ordered treatment was filed, alleging that R.S. was a danger to himself and others. A second petition was filed at the same time, alleging R.S. was suffering from a persistent and acutely disabling mental disorder. The petitions were supported by a three-page report by Dr. Wolgamott, his affidavit, and the report and affidavit of Dr. Keith Treptow, another psychiatrist. After a hearing, the trial court dismissed the allegations of dangerousness to self and others but ordered that R.S. receive in-patient treatment for a period not to exceed 180 days, based on acute and persistent mental disability.

Sufficiency of the Evidence

If a court finds clear and convincing evidence that a person is acutely disabled, it may order that person to undergo involuntary treatment. A.R.S. § 36-540; In re Commitment of an Alleged Mentally Disordered Person MH 91-00558, 175 Ariz. 221, 854 P.2d 1207 (App.1993). We will affirm such an order if it is supported by substantial evidence. Id. See also In re Maxwell, 146 Ariz. 27, 703 P.2d 574 (App.1985); Matter of Appeal in Maricopa County Juvenile Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (App.1982). Related findings will not be set aside unless they are clearly erroneous. Coconino County No. MH 1425, 176 Ariz. 525, 862 P.2d 898 (App.1993).

Under A.R.S. § 36-501(29), a finding of acute disability requires clear and convincing evidence of a severe mental disorder which meets all three of the following criteria:

(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 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.

Appellant contends that the trial court's finding that he suffered from an acute and persistent disability was clearly erroneous because there was no evidence that treatment advantages, disadvantages and alternatives were communicated to him, as required under subsection (b). He does not challenge the findings related to subsections (a) and (c); we therefore accept those elements of the statute as established. Our review of the record leads us to conclude that substantial evidence supported the trial court's order of involuntary treatment.

There are two requirements contained in § 36-501(29)(b): the mental disorder must substantially impair the ability to make informed decisions regarding treatment, and the mental disorder must cause the person not to be able to understand the treatment offered "after the advantages, disadvantages and alternatives are explained to that person." Division One of this court has recently held that failure to give the required explanations vitiates a finding of disability under § 36-501(29). In re MH 91-00558, supra. In that case, an order of involuntary treatment of a 25-year-old nursing student with no prior psychiatric history was set aside where two evaluating psychiatrists discussed with the patient their treatment recommendations but failed to advise her of any options or alternatives, due to their belief that there "were none" in view of her mental condition. The court concluded that a physician's opinion that the patient is incapable of understanding the explanations required by the statute, without having offered such explanations, does not satisfy the requirements of § 36-501(29)(b).

Here, unlike In re MH 91-00558, no conversations with appellant regarding his condition or treatment alternatives were possible. Dr. Wolgamott stated in his report that when he attempted to talk to R.S., "he got up and walked away." In response to whether he attempted to explain the nature and purpose of the interview and evaluation, Wolgamott testified,

Yes, I've attempted to approach him over many occasions....

I attempted to contact and talk with...