Commitment of An Alleged Mentally Disordered Person MH 91-00558, In re, 1

• Decision Date: 10 June 1993
• Docket Number: No. 1,CA-CV,1
• Citation: 175 Ariz. 221,854 P.2d 1207
• Parties: In re Application for the COMMITMENT OF AN ALLEGED MENTALLY DISORDERED PERSON MH 91-00558. 91-0456.
• Court: Arizona Court of Appeals

Page 1207

854 P.2d 1207

175 Ariz. 221

In re Application for the COMMITMENT OF AN ALLEGED MENTALLY DISORDERED PERSON MH 91-00558.

No. 1 CA-CV 91-0456.

Court of Appeals of Arizona Division 1, Department D.

June 10, 1993.

Maricopa County Attorney's Office by Albert H. Gavit, Deputy County Atty., Phoenix, for appellee.

Maricopa County Public Defender's Office by Jodi M. Weisberg, Deputy Public Defender, Phoenix, for appellant.

OPINION

TOCI, Presiding Judge.

W.C. appeals from the trial court's finding that she is acutely disabled and its order that she serve 365 days of combined inpatient and outpatient treatment. Arizona Revised Statutes Annotated ("A.R.S.") section 36-501(29)(b) provides that a person is persistently or acutely disabled if that person suffers from a mental disorder that:

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.

Because the record is devoid of substantial evidence that the physician explained to W.C. the advantages, disadvantages, and alternatives of her proposed treatment and that she was incapable of understanding such treatment options, we conclude that the trial court erred in finding that W.C. was acutely disabled. We, therefore, reverse and vacate the order for treatment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 30, 1991, W.C., a twenty-five-year old nursing assistant with a steady employment history and no prior psychiatric history, worked a night shift at the Kivel Care Center. That evening, instead of waiting by the time clocks as she usually did at the beginning of her shift, W.C. was seen by her supervisor, Joyce Henthorne ("Henthorne"), reading her Bible in the visitor's lounge. After Henthorne approached W.C. in the lounge and gave her instructions about what she should do when her shift began, W.C. left the premises.

The next morning, one of W.C.'s co-workers noticed W.C. walking around a neighborhood, located about one-half mile from Kivel in one direction and one-half mile from W.C.'s apartment in another direction. After the co-worker reported seeing W.C., Henthorne called the police. Although Henthorne did not know where W.C. lived, she reported to the police that W.C. "hadn't been home and that she had left work unexpectedly." Henthorne then made arrangements to meet a police officer at W.C.'s location.

Henthorne and Officer Cappellano ("Cappellano") located W.C. in the yard of a residence, seated on an irrigation structure, reading her Bible. Cappellano asked W.C. her name; W.C. responded and, at the same time, explained that she was fine. When Cappellano told W.C. that "some friends" were concerned about her having left work the night before and that she should go to the county hospital to see if she was okay, she refused and started walking away from them. As the conversation continued, W.C. became agitated; she repeatedly stated, "In the name of Jesus, I must die," and called Cappellano "Satan."

Although Henthorne eventually convinced W.C. to ride with her to the hospital, when they arrived W.C. refused to enter and began struggling with Cappellano. Cappellano and a hospital security guard then handcuffed W.C. and took her into the hospital. W.C. continued screaming, kicking, squirming, and calling those around her "Satan."

Cappellano completed an Application for Involuntary Evaluation, pursuant to A.R.S. section 36-520, ¹ and, pursuant to A.R.S. section 36-524, ² Henthorne completed an At W.C.'s hearing, both Henthorne and Cappellano testified as to the events leading up to W.C.'s admission to the hospital. In addition, two staff psychiatrists, who were part of the treatment-team that examined W.C., testified that she was a danger to herself and persistently or acutely disabled. Dr. Menendez, who was W.C.'s treating physician, stated that W.C. suffered from "bipolar disorder manic phase" and that she was in need of psychiatric care. He also stated that her disorder had "a chance of persisting for months," that it significantly impaired her judgment and reason, and that he had a substantial expectation that she would cause herself harm. He did not, however, consider W.C. to be suicidal.

                [175 Ariz. 223] Application for Emergency Admission.  Based on these applications, a physician filed a Petition for Evaluation pursuant to A.R.S. section 36-523. 3  Later, a second physician evaluated W.C. and filed a Petition for Court-Ordered Treatment pursuant to A.R.S. section 36-533, 4 alleging that W.C. suffered from a mental disorder and was a "danger to self" or "persistently or acutely disabled and in need of treatment."
                

On direct examination, the attorney for the medical center asked Dr. Menendez, "Were you able to have a meaningful discussion with [W.C.] about the advantages and disadvantages of psychiatric treatment?" Dr. Menendez responded, "Not really." On cross-examination the following exchange also took place:

Q. And you have not discussed with her the various advantages and disadvantages of the various options of treatment? Is that your testimony?

A. We discussed the recommendation that the treatment team was going to make.

Q. Right, but you didn't discuss other options or alternatives with her....

A. I saw no other options or alternatives.

Q. I see. So you only discussed with her what your recommendation would be?

A. That's right.

The second psychiatrist, Dr. Mulla, agreed with Dr. Menendez's opinion with one exception: he believed that W.C. was suicidal. Dr. Mulla based his belief on certain writings made by W.C. and her statements that she wanted to go to heaven and die for Jesus. Later, on cross-examination, Dr. Mulla testified as follows:

Q. Did you discuss with [W.C.] all the options and advantages and disadvantages of accepting treatment?

A. Yes. I did.

Q. And what options did you discuss with her other than the treatment team recommendation?

A. Uh--no I think--uh.

Q. Is that the only one you discussed with her?

A. Yes....

Q. ... did you discuss with her any other options other than the treatment teams recommendation?

A. There are no other options.

Finally, both of W.C.'s adoptive parents testified. W.C.'s adoptive father, a professor in the field of American religious history, testified that W.C. was raised in a very religious environment and explained that in such an environment, statements like "I must die for Jesus" are commonplace. He also testified that before her adoption, W.C. had come from an extremely neglected background and that because of a considerable speech impediment, people often think "she is a little slow." W.C.'s father said that she had been "functioning very well," was self-supporting and able to take care of herself. W.C.'s mother testified that she saw W.C. when she was first hospitalized and again before the hearing and "she was fine." Finally, both parents stated they would help W.C. obtain voluntary treatment, if needed, and financially support such treatment.

The trial court concluded that the applicant did not establish by clear and convincing evidence that W.C. was a danger to herself. The court, however, found that clear and convincing evidence existed that W.C. was acutely disabled, and it ordered 365 days of combined inpatient and outpatient treatment. W.C. appealed in a timely manner. We have jurisdiction pursuant to A.R.S. section 36-546.01.

DISCUSSION

A. Standard of Review

If a court finds by clear and convincing evidence that a person is acutely disabled, it may order that person to undergo involuntary treatment. A.R.S. § 36-540; see In re Pima County Mental Health, 169 Ariz. 141, 142, 817 P.2d 945, 946 (App.1991). Acutely disabled means a severe mental disorder that meets all 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.

A.R.S. § 36-501(29). In reviewing the evidence, we will sustain the trial court's order if there is substantial evidence to support the trial court's conclusion. In re Maxwell, 146 Ariz. 27, 29, 703 P.2d 574, 576 (App.1985), citing Juvenile Action No. JS-4130, 132 Ariz 486, 488, 647 P.2d 184, 186 (App.1982) (regardless of standard of proof that the trier of fact must apply, this court "can only review the evidence to determine if there is substantial evidence to support the conclusion of the trier of fact").

B. The Evidence Does Not Satisfy the Statute

We hold that the trial court erred in finding that W.C. was acutely disabled. There is no evidence in the record to support the trial court's finding that W.C.'s disorder met the standard prescribed in subsection (b) of A.R.S. section 36-501(29). Because a finding of persistent or acute disability requires the existence of all the criteria in A.R.S. section 36-501(29), we need not discuss subsections (a) and (c) to conclude that the trial court's judgment should be reversed.

Unless the court finds, by clear and convincing evidence, that a person is a danger...