In Re Mh2009-002120.

Decision Date09 September 2010
Docket NumberNo. 1 CA-MH 09-0077.,1 CA-MH 09-0077.
Citation225 Ariz. 284,237 P.3d 637
PartiesIN RE MH2009-002120.
CourtArizona Court of Appeals

OPINION TEXT STARTS HERE

Richard M. Romley, Maricopa County Attorney By Anne C. Longo and Bruce P. White, Deputy County Attorneys, Phoenix, Attorneys for Appellee.

James Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender, Phoenix, Attorneys for Appellant.

BROWN, Judge.

¶ 1 Appellant challenges an order of commitment for involuntary mental health treatment, arguing he was deprived of due process because one of the physician witnesses failed to evaluate him as required by law and thus deprived him of due process. He also argues that the evidence presented was insufficient to support the superior court's commitment order. For the following reasons, we affirm.

BACKGROUND

¶ 2 Appellant's sister filed a petition for court-ordered evaluation (“PCOE”) alleging that Appellant was a danger to self and a danger to others. The PCOE asserted that Appellant refused to keep appointments with his new psychiatrist, did not take his medication, and would not acknowledge he was in need of mental health treatment. The PCOE also alleged that Appellant wanted to kill someone he thought was a rapist; he believed people were following him; he was acutely psychotic and paranoid; and he had been “calling anyone he knows” for a gun and ammunition.

¶ 3 An application for involuntary evaluation was completed by a deputy medical director for Magellan Health Services of Arizona, Inc. 1 and submitted with the PCOE. The superior court ordered that Appellant be involuntarily detained and evaluated. Following evaluations by two physicians, a petition for court-ordered treatment (“PCOT”) was filed. The PCOT was supported by the affidavits of the two physicians, Dr. Hadziahmetovic (“Dr. H.”) and Dr. Santos. Dr. H. twice attempted to interview Appellant, but Appellant refused to engage in any meaningful conversation each time. Instead, in forming his opinion, Dr. H. relied on his personal observations of Appellant, discussions with staff, Appellant's medical chart, and the PCOE. In their affidavits, both physicians opined that Appellant would benefit from treatment because he suffered from a mental disorder, was a danger to others, and was persistently or acutely disabled. The court ordered Appellant detained, appointed counsel to represent him, and set a hearing on the PCOT.

¶ 4 At the hearing, counsel for both parties stipulated to the admission of the affidavits of the two evaluating physicians, but not in lieu of the physicians' testimony. The court then heard testimony from the two physicians, two acquaintance witnesses, and Appellant. After a brief closing argument from Appellant's counsel, who asserted a lack of evidence, the court found that Appellant suffered from a mental disorder, and as a result, was persistently or acutely disabled, a danger to others, and in need of treatment but either unwilling or unable to accept it. The court ordered Appellant to undergo inpatient and outpatient treatment for no more than 365 days, and that he receive the inpatient treatment in a local mental health facility for a minimum of 25 days and a maximum of 180 days. Appellant filed a timely notice of appeal.

DISCUSSION
A. Examination by Two Physicians

¶ 5 A petition for court-ordered treatment must be supported by the affidavits of two physicians who have conducted examinations of the patient as part of an “evaluation.” 2 A.R.S. § 36-533(B) (2009). 3 An examination is defined as “an exploration of the person's past psychiatric history and of the circumstances leading up to the person'spresentation, a psychiatric exploration of the person's present mental condition and a complete physical examination.” A.R.S. § 36-501(14). A “complete physical examination” is “not the typical annual physical but a component of a psychiatric examination, which includes observing the patient's demeanor and physical presentation, and can aid in diagnosis.” In re MH 2008-000438, 220 Ariz. 277, 280 n. 3, ¶ 14, 205 P.3d 1124, 1127 n. 3 (App.2009).

¶ 6 Appellant argues that the trial court erred by ordering him into treatment because his examination by Dr. H. was incomplete, which violated A.R.S. § 36-533(B) and his right to due process. He contends Dr. H. had a duty to establish that additional attempts to evaluate Appellant would have been futile and Dr. H. failed to meet his burden of showing it was impracticable to examine Appellant.

¶ 7 Appellant acknowledges, however, that he did not raise this argument in the superior court. We generally do not consider issues, even constitutional issues, argued for the first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App.2000). Because Appellant did not bring this concern to the attention of opposing counsel or the superior court, he has waived the right to present it here. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (“Because a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal.”); see also In re MH 2007-001895, 221 Ariz. 346, 350, ¶ 15, 212 P.3d 38, 42 (App.2009) (holding that appellant waived her argument that she did not receive a continuous simultaneous translation of the hearing by failing to object in the trial court); In re MH 2008-000438, 220 Ariz. at 280 n.4, ¶ 18, 205 P.3d at 1127 n.4 (finding waiver of argument that physician did not explain the advantages and disadvantages of accepting treatment); In re MH-1140-6-93, 176 Ariz. 565, 568, 863 P.2d 284, 287 (App.1993) (finding alleged due process violations were waived as arguments because they were raised for the first time on appeal).

¶ 8 Additionally, not only did Appellant fail to give the superior court or opposing counsel the opportunity to address any alleged deficiencies in the statutory process, he expressly invited the error by “jointly moving or stipulating the physicians' affidavits into evidence.” In re MH 2009-001264, 224 Ariz. 270, 271 n. 1, ¶ 6, 229 P.3d 1012, 1013 n. 1 (App.2010). “By the rule of invited error, one who deliberately leads the court to take certain action may not upon appeal assign that action as error.” Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d 252, 256 (1953); see also State v. Armstrong, 208 Ariz. 345, 357 n. 7, ¶ 59, 93 P.3d 1061, 1073 n. 7 (2004) (stating that the invited error doctrine exists to prevent a party from injecting error into the record and then profiting from that error on appeal). By stipulating to the admission of the affidavit of Dr. H., Appellant may not assert lack of compliance with the essential statutory requirement that a physician conduct an examination, particularly when the physician expressly noted in his affidavit he had been unable to successfully conduct an interview with Appellant. See A.R.S. § 36-539(B) (providing that evidence shall include the testimony of two physicians who performed examinations of the patient, “which may be satisfied by stipulating to the admission of the evaluating physicians' affidavits”). Even assuming, however, that Appellant preserved this issue for appeal and did not invite the error, we would not reverse on this ground.

¶ 9 Involuntary treatment proceedings must strictly follow the statutory requirements set forth in A.R.S. §§ 36-501 to -550.08. Maricopa County Superior Court No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App.2002). We generally review constitutional and statutory claims de novo. In re MH 2009-001264, 224 Ariz. at 272, ¶ 7, 229 P.3d at 1014..

¶ 10 It is undisputed that Dr. H. did not examine Appellant as required by A.R.S. § 36-533(B). Dr. H. stated in his affidavit that he had “examined” the patient “and studied information” about him but he noted later in the affidavit that Appellant twicerefused to participate in an interview. In his testimony Dr. H. clarified that he “attempted” to examine Appellant and “tried to engage him in an interview.” During the first attempt, as Dr. H. attempted to explain the process, Appellant interrupted him and refused to participate. Ultimately Appellant raised his voice and displayed a “threatening posture” which caused Dr. H. to fear for his safety and terminate the interview. The following day, Dr. H. approached Appellant again to attempt to conduct an examination. Appellant asked Dr. H. if he was a psychiatrist; after Dr. H. said he was, Appellant then responded, “then I will say no” and walked away. Appellant acknowledged at the hearing that he refused to talk to Dr. H., but denied making any threatening gestures.

¶ 11 Appellant nonetheless contends that Dr. H. failed to provide clear and convincing evidence that it was impracticable to explain treatment alternatives and that further attempts to examine Appellant would have been futile, citing In re MH 94-00592, 182 Ariz. 440, 897 P.2d 742 (App.1995). In that case, the superior court dismissed the PCOT following an evidentiary hearing, finding that the state hospital failed to show that the patient was exhibiting current behavior demonstrating an acute or persistent disability. Id. at 442, 897 P.2d at 744. On appeal, we affirmed on a different ground, concluding that neither physician provided clear and convincing evidence of a discussion with the patient about the advantages and disadvantages of recommended treatment, or that an effort to do so would have been futile. Id. at 447, 897 P.2d at 749. As relevant here, one of the physicians had testified in that case that as she began to discuss the recommended treatment, the patient became “vulgar, sarcastic, and ‘even like threatening[.] Id. at 446, 897 P.2d at 748. The physician then terminated the session. Id. Acknowledging that some degree...

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4 books & journal articles
  • § 3.7.2.5.4 Presentation of Issues and Arguments Below.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 3 Civil Appeals (§ 3.1 to § 3.18.5)
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    ...assign that action as error. See In re MH2010-002348, 228 Ariz. 441, 445, ¶ 12, 268 P.3d 392, 396 (App. 2011); In re MH2009-002120, 225 Ariz. 284, 287, ¶ 8, 237 P.3d 637, 640 (App. 2010); In re MH 2009-001264, 224 Ariz. 270, 272, ¶ 8, 229 P.3d 1012, 1014 (App. 2010). Numerous cases have hel......
  • § 3.7.2.5.4 Presentation of Issues and Arguments Below.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 3 Civil Appeals (§ 3.1 to § 3.18.5)
    • Invalid date
    ...assign that action as error. See In re MH2010-002348, 228 Ariz. 441, 445, ¶ 12, 268 P.3d 392, 396 (App. 2011); In re MH2009-002120, 225 Ariz. 284, 287, ¶ 8, 237 P.3d 637, 640 (App. 2010); In re MH 2009-001264, 224 Ariz. 270, 272, ¶ 8, 229 P.3d 1012, 1014 (App. 2010). Numerous cases have hel......
  • § 3.7.2.5.4.2 Exception For Issues of Public Importance.
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    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 3 Civil Appeals (§ 3.1 to § 3.18.5)
    • Invalid date
    ...v. Brewer, 226 Ariz. 16, 24, ¶ 37, 243 P.3d 619, 627 (App. 2010) (constitutional challenge to appropriations bill); In re MH2009-002120, 225 Ariz. 284, 287, ¶ 7, 237 P.3d 637, 640 (App. 2010); Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, 138, ¶ 19, 235 P.3d 285, 291 (App. 2010) (e......
  • § 3.7.2.5.4.2 Exception For Issues of Public Importance.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 3 Civil Appeals (§ 3.1 to § 3.18.5)
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    ...v. Brewer, 226 Ariz. 16, 24, ¶ 37, 243 P.3d 619, 627 (App. 2010) (constitutional challenge to appropriations bill); In re MH2009-002120, 225 Ariz. 284, 287, ¶ 7, 237 P.3d 637, 640 (App. 2010); Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, 138, ¶ 19, 235 P.3d 285, 291 (App. 2010) (e......

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