Det. D.W. v. Dep't of Soc. & Health Servs. & Pierce Cnty.

Decision Date07 August 2014
Docket NumberNo. 90110–4.,90110–4.
Citation332 P.3d 423,181 Wash.2d 201
CourtWashington Supreme Court
PartiesIn the Matter of the DETENTION OF D.W., G.K., S.B., E.S., M.H., S.P., L.W., J.P., D.C., and M.P., Respondents, and Franciscan Health Care Systems and Multicare, Health System, Respondents/Intervenors, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES and Pierce County, Appellants.


Sarah Jane Coats, Attorney General of Washington, Jay Douglas Geck, Office of the Attorney General, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, Kenneth Lynn Nichols, Pierce County Prosecuting Attorney, Tacoma, WA, for Appellant.

Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.

Eric John Neiman, Williams Kastner & Gibbs PLLC, Portland, OR, for Respondent Intervenor.

Emily Rebecca Cooper, David R. Carlson, Disability Rights Washington, Seattle, WA, for Amicus Curiae on behalf of Disability Rights Washington, National Alliance on Mental Illness Washington.

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Aclu.

Barbara Allan Shickich, Riddell Williams PS, Seattle, WA, for Amicus Curiae on behalf of Washington State Hospital Association, Association of Washington Public Hospital Districts, Washington State Medical Association, Wash Chapter of the American College of Emergency Physicians, Northwest Organization of Nurse Executives, Washington State Nurses Association, Seiu Healthcare 1199nw, Wash Council of Emergency Nurse Association.


¶ 1 Washington State's involuntary treatment act (ITA), chapter 71.05 RCW, authorizes counties to briefly detain those who, “as the result of a mental disorder,” present an imminent risk of harm to themselves or others, or are gravely disabled. RCW 71.05.153(1), .230. The initial brief detention is for the limited purpose of evaluation, stabilization, and treatment, and once someone is detained under the ITA, he or she is entitled to individualized treatment. RCW 71.05.153, .230, .360(2). Pierce County frequently lacks sufficient space in certified evaluation and treatment facilities for all those it involuntarily detains under the ITA. It regularly resorts to temporarily placing those it involuntarily detains in emergency rooms and acute care centers via “single bed certifications” to avoid overcrowding certified facilities. Such overcrowding-driven detentions are often described as “psychiatric boarding.” David Bender Et Al., A Literature Review: Psychiatric Boarding 4 (2008). Patients psychiatrically boarded in single bed certifications generally receive only emergent care. After 10 involuntarily detained patients moved to dismiss the county's ITA petitions, a trial judge found that psychiatric boarding is unlawful. We agree and affirm.


¶ 2 Our current involuntary civil commitment system has been regularly overwhelmed since it was first enacted by the legislature in 1979. Mary L. Durham & John Q. La Fond, The Empirical Consequences and Policy Implications of Broadening the Statutory Criteria for Civil Commitment, 3 Yale L. & Pol'y Rev. 395, 411–12 (1985). By 1981, Western State Hospital, which at the time acted as an evaluation and treatment center, was filled to capacity and refused to accept more patients until it was ordered to by this court. Id. at 412–13 & n. 104 (citing Pierce County v. W. State Hosp., 97 Wash.2d 264, 644 P.2d 131 (1982)).

¶ 3 Overcrowding has continued. In early 2013, Pierce County detained the 10 respondent patients before us under the ITA. In most cases, the respondents were initially held in hospital emergency rooms or in local acute care medical hospitals. None of these sites were certified as evaluation and treatment centers under the ITA. In all cases, the county, through one of its designated mental health providers, filed petitions to hold the respondents for up to 14 more days. Several of the involuntarily detained patients moved to dismiss these 14–day petitions on the grounds that they had not been, and believed they would not be, detained in a certified evaluation and treatment facility. On February 12, 2013, Mental Health Commissioner Adams heard the motions to dismiss two of these petitions. At this hearing, the prosecutor informed the commissioner that Pierce County had eight other single bed certifications pending in local medical facilities. Upon learning this, Commissioner Adams set the matter over for an evidentiary hearing on February 27, 2013. Concerned that he lacked necessary briefing and parties, the commissioner invited the Department of Social and Health Services (DSHS) and several of the hospitals who had housed involuntarily detained patients to participate.

¶ 4 One of the witnesses at the February 27 hearing was Nathan Hinrichs, the supervisor of the designated mental health professionals (DMHP) in Pierce County. Hinrichs testified that once a DMHP determined that someone should be involuntarily detained for evaluation, we try and locate a bed. We'll call up to five local hospital evaluation and treatment centers to try and find a bed, sometimes more.” Clerk's Papers (CP) at 117.1 If no bed is available, the DMHP would “seek to obtain a single bed cert[ification] to detain them at the community hospital.” Id. at 118. To do that, the DMHP would fill out a certification form and “fax that to Western State Hospital. Id. Western State Hospital “never asked” why Pierce County was seeking a single bed certification; it would almost always simply approve the request. Id. at 119. Indeed, Hinrichs could remember only one time a request was denied: when the county sought a single bed certification in the Special Commitment Center on McNeil Island. Hinrichs also testified that those patients involuntarily held in single bed certifications “are getting less care than they would if they were in an evaluation and treatment center [and] it's actually a more restrictive environment.” Id. at 124. He testified that on the day of the hearing, there were 11 people in Pierce County held on single bed certifications. The State's witness, David Reed from DSHS's Division of Behavioral Health and Recovery, testified consistently. Reed also testified that the use of single bed certifications had “within the past seven years ... pretty much exploded and is continuing to increase.” Id. at 171. After the hearing, Commissioner Adams found that a patient involuntarily detained in a single bed certification “gets no psychiatric care or other therapeutic care for their mental illness” and that the practice of using single bed certifications to avoid overcrowding certified evaluation and treatment facilities is unlawful. Id. at 48, 192, 54–55.

¶ 5 Pierce County moved to revise Commissioner Adam's decision. While still technically appearing as an amicus, DSHS challenged the commissioner's power to hear the case and argued that psychiatric boarding to avoid overcrowding certified facilities was allowed by both the ITA and its implementing regulations, especially WAC 388–865–0526. Judge Nelson vacated the commissioner's decision, but she reached the same conclusion in her own extensive written ruling. She also granted the amici's motions to intervene, 2

¶ 6 DSHS and Pierce County appealed. On the Court of Appeals' own motion, the 10 cases were consolidated and, after the briefs were filed, transferred to this court.3 The respondent patients are supported on review by interveners MultiCare Health System and Franciscan Health System; by amici curiae Disability Rights Washington, the National Alliance on Mental Illness Washington, and the American Civil Liberties Union of Washington in one brief; and by amici curiae the Washington State Hospital Association, the Association of Washington Public Hospital Districts, the Washington State Medical Association, the Washington Chapter of the American College of Emergency Physicians, the Northwest Organization of Nurse Executives, the Washington State Nurses Association, SEIU Healthcare 1199NW, and the Washington Council of Emergency Nurse Association in another.


¶ 7 We review questions of law de novo and findings of fact for substantial evidence. Soltero v. Wimer, 159 Wash.2d 428, 433, 150 P.3d 552 (2007) (citing Nordstrom Credit, Inc. v. Dep't of Revenue, 120 Wash.2d 935, 942, 845 P.2d 1331 (1993)). The ITA impacts liberty interests and thus is strictly construed. In re Det. of G.V., 124 Wash.2d 288, 296, 877 P.2d 680 (1994) (quoting In re Det. of Swanson, 115 Wash.2d 21, 31, 804 P.2d 1 (1990)).

¶ 8 The State's lawful power to hold those not charged or convicted of a crime is strictly limited. Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citing Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). However, [a] state has a legitimate interest in treating the mentally ill and protecting society from their actions.” In re Albrecht, 147 Wash.2d 1, 7, 51 P.3d 73 (2002) (citing Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). Civil commitment is permitted, but the commitment system “must require that an individual be both mentally ill and dangerous for civil commitment to satisfy due process.” Id. (footnote omitted) (citing Addington, 441 U.S. at 426, 99 S.Ct. 1804); Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Anyone detained by the state due to “incapacity has a constitutional right to receive ‘such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition.’ Ohlinger v. Watson, 652 F.2d 775, 778 (9th Cir.1981) (quoting Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala.1971)). Patients may not be warehoused without treatment because of lack of funds. ‘Lack of funds, staff or facilities cannot justify the State's failure to provide [such persons] with [the] treatment necessary for rehabilitation.’ Or. ...

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