In re Mh 2006-000749, 1 CA-MH 06-0015.

Citation214 Ariz. 318,152 P.3d 1201
Decision Date13 February 2007
Docket NumberNo. 1 CA-MH 06-0015.,1 CA-MH 06-0015.
PartiesIn re MH 2006-000749.
CourtCourt of Appeals of Arizona

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

OPINION

JOHNSEN, Judge.

¶ 1 Appellant appeals from the superior court's May 1, 2006 order compelling her to undergo involuntary inpatient and outpatient mental health treatment. The order was issued following a hearing at which Appellant was not present. We hold that although a patient has the power to waive attendance at an involuntary treatment hearing, the patient's waiver is ineffective unless the superior court expressly finds that it is given knowingly and intelligently. Because we hold the evidence did not support the superior court's conclusion that Appellant knowingly and intelligently waived her right to be present, we remand for a new hearing on that issue.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On April 17, 2006, a medical doctor and a clinical liaison petitioned the superior court for an involuntary mental health evaluation of Appellant. An application for involuntary evaluation and a pre-petition screening report accompanied the petition. The petition stated that there was reasonable cause to believe that Appellant was persistently or acutely disabled. According to the petition, Appellant demonstrated "poor judgment and insight," had "become extremely paranoid," was experiencing "auditory and visual hallucinations," and was psychotic. The petition stated that Appellant would not take her prescription medication because she thought it had been tampered with, would not eat because she believed the group home staff was putting chemicals in her food, believed she was being raped on a daily basis at her group home and wandered away from her group home. On April 18, 2006, the superior court issued a detention order for the evaluation of Appellant.

¶ 3 On April 24, 2006, after Appellant had been evaluated, another medical doctor filed a petition asking that Appellant be compelled to undergo treatment. The physician asserted that Appellant was persistently or acutely disabled and concluded that Appellant needed "further inpatient evaluation and stabilization of her psychotic illness." According to the physician's affidavit, Appellant had been diagnosed with schizoaffective disorder. During an interview, she told the physician she was being drugged, her medication was being poisoned, chemicals had been sprayed on her blankets, and people were coming into her group home and raping her. The physician described Appellant's thought process as "significant for paranoid thinking and delusions," and concluded that her concentration, insight and judgment were impaired. She stated that Appellant had "limited capacity to recognize reality secondary to her psychosis" and that her mental disorder limited her capacity to make an informed decision regarding treatment. She lacked insight into her mental illness, the physician said, and because she was refusing to take her medications, her psychosis was worsening.

¶ 4 An affidavit of yet a third physician also noted that Appellant believed her medication and food were being poisoned. Although Appellant reported experiencing visual and auditory hallucinations, she denied having been diagnosed with a mental illness. "The patient demonstrates extremely poor insight," the third doctor wrote. "The patient's judgment is also impaired." He concluded that Appellant was suffering from "an acute decompensation of a chronic psychotic disorder." He stated that Appellant was "suffering from paranoid delusionality and auditory and visual hallucinations," and was refusing medication and treatment. Like the second physician, he concluded that Appellant's mental disorder "substantially impair[ed]" her capacity to make an informed decision regarding treatment.

¶ 5 In response to the petition, the court issued a "Detention Order for Treatment and Notice" on April 25, 2006 that set a hearing pursuant to Arizona Revised Statutes ("A.R.S.") section 36-539 (2003) for May 1, 2006, at 10:30 a.m. Pursuant to the April 25 order, Appellant was detained in an annex to the Maricopa Medical Center pending the hearing on the petition for court-ordered treatment. Even though she had been detained, however, Appellant did not appear for the May 1 hearing. Her court-appointed counsel told the court she did not have any information about why Appellant was not present.

¶ 6 On its own motion, the trial court called the court's transportation officer to testify about Appellant's absence. (The transportation officer delivers patients from the annex to court for hearings.) The transportation officer testified that he had spoken with Appellant in person at 7:45 a.m. the morning of the hearing. He testified that he asked Appellant if she knew "she was to attend court" that day, and that Appellant responded that she did know and that she would be attending. When the transportation officer returned just after 9:00 a.m. to take Appellant to court, Appellant started to walk with him but then asked him where they were going. He answered that they were going to court. According to the transportation officer, Appellant then stated: "Well, that's okay. But I can't go with you because I don't know you." The officer explained that he was the transportation officer, but Appellant again stated she could not go with him because she did not know him.

¶ 7 At that point, the officer asked Appellant if she had spoken to her public defender, and Appellant answered that she had not spoken to her public defender, any lawyers or any doctors. The officer then told Appellant she did not have to go to court if she did not want to, but that he was the person who would take her if she wanted to go. Appellant again said that she could not go with him because she did not know him.

¶ 8 Appellant's counsel argued that given the pending allegations about Appellant's mental condition, the court could not assume Appellant had voluntarily waived her right to be at the hearing. The court disagreed, and found Appellant had voluntarily waived her presence: "The real issue is under [A.R.S. § 36-539] subsection (b) as the language of the statute says the patient . . . shall be present. This Court has taken the . . . position that I will not force a person to come and aggravate any potentially already fragile situation. . . . I will find that [Appellant] has voluntarily waived her appearance here." Over the objection of Appellant's counsel, the court then ordered that the hearing "proceed in absentia."1

¶ 9 At the hearing, Appellant's counsel and counsel for the county agreed to submit the physicians' affidavits in lieu of their testimony. The court heard live testimony of two witnesses, a behavioral health agency case manager and a worker at Appellant's group home.

¶ 10 The case manager testified that Appellant had called her one morning to pick her up from a bus stop where she had spent the night. When she picked her up, Appellant said she had not taken her medication and that she had urinated on herself. The case manager testified that while at Appellant's residence, Appellant repeatedly asked her, "Can you smell that?" but the case manager could smell nothing. While at Appellant's residence, she told the case manager that a picture frame was emitting poisonous chemicals. The case manager took Appellant to a clinic to be assessed by her psychiatrist, where she observed Appellant smelling her pill box before she took her medication. The case manager also testified that Appellant had told her that she had broken her radio because "they kept calling her name [on] the radio."

¶ 11 The worker from Appellant's group home testified that Appellant believed her food was being poisoned and that other residents were trying to rape and kill her. The worker stated that she recently heard Appellant tell her caseworker she had not taken her medication for four days. She testified that the next evening, Appellant was screaming the 23rd Psalm while repeatedly slamming the refrigerator door shut, saying, "They're not going to kill me, they're not going to take me." The worker testified that when Appellant was asked whom she was talking to, Appellant replied, "Can't you see that I'm having a conversation and you're not part of it." She stated that when police officers responded to Appellant's room to have her turn her music down, Appellant told police that "men under her bed [were] trying to rape her."

¶ 12 After considering the evidence, the court found that Appellant was persistently or acutely disabled and ordered Appellant to be involuntarily treated in a combined inpatient/outpatient program for a period not to exceed 365 days. Appellant timely appealed the order. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) (2003) and 36-546.01 (2003).2

DISCUSSION

¶ 13 We review de novo the interpretation and application of a statute because they are questions of law. See In re Maricopa County No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App.2002). We will affirm the trial court's findings of fact unless they are clearly erroneous or unsupported by substantial evidence. In re Maricopa County No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App.1995).

¶ 14 Involuntary treatment by court order is "a serious deprivation of liberty." In re Coconino County No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995); cf. Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (commitment to mental hospital "produces a massive curtailment of liberty").3 "[B]ecause civil commitment constitutes a significant deprivation of liberty, the state must accord the proposed patient due process protection." In re Maricopa County No. MH 90-566, 173...

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