In re M.H. 2007-001236

Decision Date26 August 2008
Docket NumberNo. 1 CA-MH 07-0025.,1 CA-MH 07-0025.
Citation204 P.3d 418
PartiesIn re MH 2007-001236.
CourtArizona Court of Appeals

James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender, Phoenix, Attorneys for Appellant.

Andrew P. Thomas, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney and Laurence G. Tinsley, Jr., Deputy County Attorney, Phoenix, Attorneys for Appellee.

OPINION

KESSLER, Presiding Judge.

¶ 1 Appellant, J.O., appeals the decision of the superior court finding that as a result of a mental disorder she was a danger to herself and others and persistently or acutely disabled. Appellant argues that the evidence was insufficient for the court to order treatment because it was not based upon two examining physicians' opinions that Appellant was suffering from a mental disorder that rendered her dangerous to herself or to others and persistently or acutely disabled as required by Arizona Revised Statutes ("A.R.S.") sections 36-501(26) and (33) (Supp. 2007), -533(B) and -539(B) (2003).1 Appellee argues that the evidence was sufficient to support court-ordered treatment.2 We agree that the evidence was statutorily insufficient at a minimum because one of the physicians did not conduct a sufficient examination and because his "opinion" did not state that as a result of a mental disorder Appellant was a danger to herself, others, or that she was acutely or persistently disabled. Accordingly, we vacate the order for civil commitment.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Appellant's father filed a petition for a court-ordered inpatient evaluation of Appellant pursuant to A.R.S. § 36-523 (2003). An application for an involuntary evaluation was also submitted at that time pursuant to A.R.S. § 36-520 (2003). The petition alleged that Appellant had a mental disorder and, as a result of the disorder, Appellant was a danger to others. The basis for the application was that Appellant was a danger to herself as well as others. An application for an emergency admission evaluation was also filed the same day pursuant to A.R.S. § 36-524 (2003). Appellant was taken into custody for evaluation.

¶ 3 Two days later, a petition for court-ordered treatment ("COT") was filed by Dr. Cyriac at Desert Vista Hospital ("Petitioner") alleging that Appellant was a danger to herself and others and was persistently or acutely disabled, and that court-ordered treatment alternatives consisted of combined inpatient and outpatient treatment. See A.R.S. §§ 36-533(A)(2), -540(A)(2) (2003). Pursuant to section 36-533(B), affidavits from two physicians were attached to the petition. One affidavit was from Dr. Cyriac and the other was from Dr. David Fife, who was supervised by Dr. Lydia Torio, a supervising attending physician. Dr. Cyriac's affidavit stated that despite the fact he could not render a professional opinion or perform a comprehensive psychiatric evaluation, he found a probable diagnosis of polysubstance dependence. In contrast, Dr. Fife's affidavit stated a probable diagnosis of mood disorder. The court issued a detention order for treatment and notice pursuant to A.R.S. § 36-535 (2003).

¶ 4 The section 36-539 hearing was scheduled for July 26, 2007. See generally A.R.S. § 36-535(B) ("The court shall either release the proposed patient or order the hearing to be held within six days after the petition is filed ...."). The parties stipulated to the admission of the doctors' affidavits and an affidavit stating that J.O. had been receiving certain medications. Appellee called three acquaintance witnesses, Appellant's stepmother and her sisters to testify, as well as Dr. Cyriac, who supplemented his affidavit with direct testimony. See A.R.S. § 36-539(B) (evidence shall include testimony of two witnesses acquainted with patient at time of disorder and testimony of the two evaluating physicians). Dr. Cyriac testified when he met Appellant he explained to her the court-ordered evaluation and the process involved in it as well as that his report was not confidential and would be filed with the court. He further testified that Appellant then refused to cooperate with the interview for preparing the report. He therefore handed her treatment over to a nurse practitioner. Dr. Cyriac testified that when he prepared his section 36-533(B) affidavit he could not give a professional opinion but after a brief review of Appellant's records earlier that morning he would "try to" give a professional opinion. Dr. Cyriac testified,

I've not observed [Appellant] on the unit since my brief contact with her. But upon a brief review of the charts this morning, it's been pretty consistent that she's had some mood symptoms and she's responding to treatment pretty well. So no, I cannot give a firm opinion but then given the history that there are some symptoms and that she's responding to treatment. So I think I can say that she could possibly benefit from further treatment.

(Emphasis supplied). Appellee's attorney then asked, "[s]o can you give a probable diagnosis in this case?" Dr. Cyriac replied, "[i]f—upon review of her—the documents in her chart, I think a probable diagnosis that I would favor would be a mood disorder, NOS [Not Otherwise Specified]." Dr. Cyriac responded affirmatively when Appellee asked "[a]nd that is your opinion."

¶ 5 On cross-examination Dr. Cyriac stated, "[s]o there's been a long pattern of, you know, both prescription drugs and illicit drugs, and if somebody's been using, you know, on a weekly basis, as she has told me, I think it's a reasonable conclusion that there is a dependence or an addiction." On re-direct Appellee asked Dr. Cyriac, "is it possible that [Appellant] is suffering from—or was suffering from a substance induced mood disorder, and also mood disorder NOS?" Dr. Cyriac responded,

It's possible. When I first met her and she's been in the hospital for nearly—I think she [came in] on the 16th, I believe. It's been ten or 12 days now that she's been in the inpatient hospital. Usually there's the influence of any substance use, in this case, her urine/blood screen came back positive for methamphetamine and she acknowledged she had been using that. That—those effects would—shouldn't last more than a week. Now this is—we are beyond that time period. And then upon review of her documentation, there are still mood symptoms and she's been receiving psychiatric treatment. So that tells me there's—that we can move away from the substance abuse mood disorder into—with the passage of time, there is still presence of mood symptoms, now she's getting psychiatric treatment.

On re-cross, Dr. Cyriac stated, "—and upon review of the charts, I think I've come to a conclusion." (Emphasis supplied).

¶ 6 Appellant's counsel moved for dismissal of the COT petition due to the lack of two doctors' evaluations, arguing that Dr. Cyriac's affidavit was insufficient because it stated he could not give a professional opinion and that his probable diagnosis was polysubstance dependence by history. Counsel then explained that "the doctor could not give a professional opinion. He has had very limited contact, has not treated her since, and then really only looked at some notes, in his words, briefly today." As she summarized,

And if we, you know, allow that—the affidavit that's filed with the Court and that we're allowed to rely on and ... if they're allowed to come in and just be one brief look at the record in the morning, not having treated them, not having seen them on the unit between times, what's the use of this? ...

It's like throwing out everything that's in this there was no definitive answer diagnosis ... So I would ask that you rule that there's really only one doctor's report, that they need two and the court-ordered treatment be dismissed

¶ 7 Appellant's counsel also argued that Dr. Cyriac's affidavit referenced insight impairments as being related to a history of substance abuse and that substance abuse was specifically excluded from the definition of "mental disorder" under A.R.S. § 36-501(26)(a). Counsel also argued that the evaluation conducted by Dr. Cyriac did not meet the definition of "evaluation" under A.R.S. § 36-501(12).

¶ 8 The superior court denied the motion stating,

Well the—need the testimony of two doctors. They—the hospital, I don't believe, is limited to the affidavit of two doctors. You were on notice of—by way of the affidavit of this particular doctor and certainly I think your argument goes more to the weight of his testimony than to the lack of the county—or the hospital having met its burden of presenting the testimony of two doctors. As I understand the Doctor's testimony, he has indicated that after this number of days in the hospital, and I believe that [Appellant] was admitted on the 16th, so it's now been about ten days, that the probable diagnosis would be a mood disorder, and so I'm going to deny your motion.

¶ 9 After more argument the court stated, Well, again I think you're getting into argument and you're entitled to make that argument. Whether a brief review of records was sufficient in this case or not is a question that you certainly could have and to some extent did go into on cross-examination, and you're certainly entitled to make that argument in closing.

* * *

But I think your argument goes to the weight.

¶ 10 Thereafter, Appellee's three acquaintance witnesses testified and one acquaintance witness for Appellant testified. In closing argument, Appellant re-urged the superior court to find that Dr. Cyriac's affidavit and testimony were insufficient to meet the statutory requirements and there was really only one sufficient medical opinion. In ruling, the superior court stated,

I don't agree with her—with the patient's assessment that the doctor cannot supplement his assessment beyond the 72 hour period. I think that the testimony is allowed to be introduced and has been...

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