Detention of G.V., In re

• Decision Date: 28 July 1994
• Docket Number: No. 61118-1
• Citation: Detention of G.V., In re, 877 P.2d 680, 124 Wn.2d 288 (Wash. 1994)
• Parties: , 5 NDLR P 312 In re the DETENTION OF G.V. Francis PODREBARAC, M.D., and Robert Lennigan, Ph.D., Appellants, v. G.V., Respondent. In re the DETENTION OF A.K. D. Lee BROCK, M.D., and Gunter Hadersberger, Ph.D., Appellants, v. A.K., Respondent. In re the DETENTION OF R.P. Francis PODREBARAC, M.D., and Robert Lennigan, Ph.D., Appellants, v. R.P., Respondent.
• Court: Washington Supreme Court

Page 288

124 Wn.2d 288

877 P.2d 680, 5 NDLR P 312

In re the DETENTION OF G.V.

Francis PODREBARAC, M.D., and Robert Lennigan, Ph.D., Appellants, v.G.V., Respondent.

In re the DETENTION OF A.K.

D. Lee BROCK, M.D., and Gunter Hadersberger, Ph.D., Appellants, v.A.K., Respondent.

In re the DETENTION OF R.P.

Francis PODREBARAC, M.D., and Robert Lennigan, Ph.D., Appellants, v.R.P., Respondent.

No. 61118-1.

Supreme Court of Washington En Banc.

July 28, 1994.

Christine O. Gregoire, Atty. Gen., and Linda A. Sullivan and Christopher Jennings, Assts., for appellants.

John A. McNeish of Dept. of Assigned Counsel, Harbor, for respondents.

UTTER, Justice.

The trial court commissioner dismissed petitions by the State of Washington to recommit three mentally-ill individuals, G.V., A.K., and R.P.The State appealed the dismissals to the Court of Appeals.After consolidating the three cases, the Court of Appeals certified the action to this court.We accepted certification pursuant to RAP 4.2andRCW 2.06.030 and reverse the commissioner's decisions.

At issue is the proper interpretation of a portion of Washington's involuntary treatment act.The act permits the State to commit an individual involuntarily to a mental facility for treatment if the individual presents a likelihood of harm to others or him or herself or is "gravely disabled".RCW 71.05.280.A person is considered to be "gravely disabled" if he or she:

(a) Is in danger of serious physical harm resulting from a failure to provide for his essential human needs of health or safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety;

RCW 71.05.020(1).

Prior to the expiration of an involuntary commitment period imposed under RCW 71.05.280, the State is statutorily authorized to seek a new period of commitment if certain conditions are present, including if there exists a likelihood of serious harm to others or if the individual continues to be gravely disabled.RCW 71.05.320(2).¹

In connection with the court hearing on the petition, a patient has the right to refuse medication during the 24 hours prior to the hearing (hereinafter right to refuse medication).RCW 71.05.210 provides:

Each person involuntarily admitted to [a] treatment facility shall ... receive such treatment and care as his or her condition requires ... except that, beginning twenty-four hours prior to a court proceeding, the individual may refuse all but emergency life-saving treatment, and the individual shall be informed at an appropriate time of his or her right to such refusal of treatment.

Patients subject to a new commitment period under RCW 71.05.210 also have the right to be informed, prior to the commencement of the 24-hour period, of the right to refuse medication.WAC 275-55-161 provides:

Any involuntary patient may refuse all but emergency lifesaving treatment beginning twenty-four hours prior to any hearing.On admission to the facility such patient shall be informed of his or her right to refuse all treatment except lifesaving treatment during such twenty-four hour period and shall again be so informed prior to the twenty-four hour period The appropriate procedural remedy for a potential interference with the right to refuse medication and the attendant right to be informed of such right is at issue here.The facts relevant to each of the three consolidated cases follow.

On March 23, 1992, a court commissioner found G.V., an 86-year-old man, to present a likelihood of serious harm to others and to be gravely disabled and committed him to treatment at Western State Hospital for 180 days.Supplemental Clerk's Papers (G.V.), at 1-3;Clerk's Papers (G.V.), at 4-5.Prior to the expiration of G.V.'s commitment period on September 19, the State sought an additional commitment period of 180 days to permit further treatment.The State alleged that G.V. continued to be gravely disabled; had threatened, attempted, or inflicted physical harm upon another or himself during the period in which he was detained; was taken into custody as a result of conduct in which he threatened, attempted or inflicted physical harm on another or himself; and continued to present, as a result of his mental disorder, a likelihood of serious harm to others or himself.Clerk's Papers (G.V.), at 1-3. G.V.'s court hearing was set for September 14, 1992.Clerk's Papers (G.V.), at 1-3.

Similarly, on June 19, 1992, a court commissioner found R.P. to be gravely disabled and committed him to treatment at Western State Hospital for 90 days.Supplemental Clerk's Papers (R.P.), at 1-3.At the time of the commitment, R.P. was a 71-year-old man who was delusional and was alleged to have tried to beat a 90-year-old resident in a nursing home.Clerk's Papers (R.P.), at 4-5.Prior to the expiration of R.P.'s commitment period on September 17, the State sought to provide for further treatment by filing for a new commitment period of an additional 180 days.The additional treatment and commitment were sought based on the State's allegations that R.P. continued to be gravely disabled; had threatened, attempted, or inflicted physical harm upon another or himself during the period in which he was detained; was taken into custody as a result of conduct in which he threatened, attempted or inflicted physical harm on another or himself; and continued to present, as a result of his mental disorder, a likelihood of serious harm to others or himself.Clerk's Papers (R.P.), at 1-3.A court hearing was set for the same time as G.V.'s hearing on September 14, 1992.Clerk's Papers (R.P.), at 1-3.

Notwithstanding the right to be informed in a timely manner of the right to refuse medication, it was not until the morning of September 14, less than 24 hours before the hearing, that G.V. and A.K. were informed of their respective rights to refuse medication.Since both had taken medication within the 24 hours prior to the hearing, they would have been deprived of their rights to refuse medication if the hearing had been permitted to go forward.The State learned of the defect prior to the commencement of the hearing and, immediately upon the commencement of the hearing, informed the court and attempted to secure a 1-day continuance to permit G.V. and R.P. to exercise their rights to refuse medication.Since G.V.'s commitment period did not expire until September 19 and R.P.'s commitment period did not expire until September 17, a 1-day continuance to September 15 would have permitted rescheduled hearings to have been held prior to the expiration of both their commitment periods.Nevertheless, the commissioner denied the State's motion for a one-day continuance and granted the patients' motions to dismissthe State's petitions.

The third case at issue here involves the commitment of A.K.On July 31, 1992, A.K., a 32-year-old man, was found to be gravely disabled and committed to involuntary treatment at Western State Hospital for 90 days.Supplemental Clerk's Papers(A.K.), at 1-3.As with G.V. and R.P., the State sought a new period of commitment for further treatment of A.K.It alleged A.K. continued to be gravely disabled and sought an additional 180 days for continued treatment.The court hearing was set for October 14, 1992, well in advance of the expiration of A.K.'s commitment period on October 29, 1992.Clerk's Papers(A.K.), at 1-3.During the course of the hearing, the State and counsel for A.K. discovered that A.K.'s right to refuse medication had been impaired.It is uncontested that A.K. had been informed in a timely manner of his right to refuse medication and elected to do so.However, despite his decision, he stood in line with other patients being administered medication and, as a result, was inadvertently medicated by the staff within the 24 hours prior to his hearing.As with G.V. and R.P., A.K.'s right to refuse medication would have been violated if the hearing had been allowed to proceed as originally scheduled.

The State moved for a voluntary nonsuit ², Report of Proceedings(A.K.), at 12; and counsel for A.K. moved for a dismissal, Report of Proceedings(A.K.), at 10, 13.Because A.K.'s commitment period did not expire until October 29, 1992, a hearing could have been rescheduled prior to the expiration of A.K.'s original commitment period.Noting it was "real unfortunate in this case" and that he had "no choice but to dismiss", the commissioner dismissed the State's petition.Report of Proceedings(A.K.), at 14.

The State appealed the three dismissals to the Court of Appeals.The Court of Appeals consolidated the three cases and certified them to this court.We agreed to direct review pursuant to RAP 4.2andRCW 2.06.030 and consider whether the commissioner erred in denying the State's motions for continuances in the cases of G.V. and R.P. and/or in dismissing the State's petitions in each of the three cases.

This case is technically moot because this court cannot grant the relief originally sought by the State.In re Swanson, 115 Wash.2d 21, 804 P.2d 1(1990).However, we may decide a moot case if it involves matters of continuing and substantial public interest.In re Swanson, supra.This court has recognized "the need to clarify the statutory scheme governing civil commitment is a matter of continuing and substantial public interest".In re LaBelle, 107 Wash.2d 196, 200, 728 P.2d 138(1986)(quotingDunner v. McLaughlin, 100 Wash.2d 832, 838, 676 P.2d 444(1984)).Additionally, the commissioner's actions indicate these issues are likely to recur.SeeReport of Proceedings (G.V.), at 3;Report of Proceedings (R.P.), at 3(indicating commissioner's belief that problem was prevalent).Therefore, although this case is technically moot, we decide this case on its merits.

THE COMMISSIONER ABUSED HIS DISCRETION...