In re E.S.

• Decision Date: 24 May 2022
• Docket Number: 55426-7-II
• Citation: 509 P.3d 871
• Parties: In the MATTER OF the DETENTION OF E.S., Appellant.
• Court: Washington Court of Appeals

509 P.3d 871

In the MATTER OF the DETENTION OF E.S., Appellant.

No. 55426-7-II

Court of Appeals of Washington, Division 2.

Filed May 24, 2022

Mary Katherine Young High, Attorney at Law, 949 Market St. Ste. 334, Tacoma, WA, 98402-3696, Jennifer Vickers Freeman, Department of Assigned Counsel, 949 Market St. Ste. 334, Tacoma, WA, 98402-3696, Nicole Lea Beges, Attorney at Law, 9601 Steilacoom Blvd. Sw, Bldg. 25, Lakewood, WA, 98498-7213, for Appellant.

Stephen D. Trinen, Marcus Jay Miller, Pierce County Prosecuting Attorney's Office, 955 Tacoma Ave. S Ste. 301, Tacoma, WA, 98402-2160, for Respondent.

PUBLISHED OPINION

Glasgow, C.J. ¶ 1 ES, a 70-year-old woman, was involuntarily committed after she began acting aggressively toward staff at the residential care facility where she lived. Petitioners obtained an order for 14 days of involuntary treatment. A clinical social worker then sought to file a 90-day petition for additional treatment but, in part because the attending physician declined to sign the petition, hospital staff missed the statutory filing deadline.

¶ 2 After missing the deadline, hospital staff dropped the 14-day hold prior to its expiration and, without notifying ES of her technical release, rereferred ES for another period of emergency detention under a new cause number. They then filed a second 14-day commitment petition under this new cause number. ES filed a motion to dismiss the second 14-day petition based on the State's total disregard of involuntary treatment act requirements under chapter 71.05 RCW and violation of due process. The superior court denied ES's motion and ordered her committed for an additional 14 days of involuntary treatment. ES appeals both the denial of her motion to dismiss and the second 14-day commitment order.

¶ 3 We follow our recent opinion in In re Detention of N.G. , 20 Wash. App. 2d 819, 503 P.3d 1 (2022), pet. for review filed , No. 100690-0 (Wash. Feb. 24, 2022), and conclude that dismissal of a 14-day petition is an available remedy where staff initiate a new case for the purpose of continuing a committed person's involuntary treatment in total disregard of involuntary treatment act requirements. Here, because hospital staff knowingly and willfully violated the act's requirements where other legally appropriate options were available, resulting in a significant deprivation of ES's liberty under circumstances where the risk of serious harm to ES and the public was relatively minimal, we hold that hospital staff totally disregarded the act's requirements. We reverse the superior court's order denying ES's motion to dismiss the second 14-day commitment petition and remand for the court to vacate the second 14-day commitment order.

FACTS

I. BACKGROUND

¶ 4 In December 2020, ES was 70 years old. She was 5 feet and 2 inches tall, and she weighed 140 pounds. ES had been living in a residential care facility, where she was "doing really well" until she stopped taking her psychiatric medications. Clerk's Papers (CP) at 2, 44.

¶ 5 ES has been diagnosed with schizoaffective disorder

and antisocial personality disorder. After she stopped taking her medications, ES "became agitated and assaultive to where staff could not manage her." CP at 2. When she was taken into emergency custody on December 21, 2020, ES "made threatening statements to staff and was spitting towards staff." CP at 25. She cursed at and tried to kick the nurse who came to assess her. ES was disheveled, had poor hygiene, and repeatedly removed her clothing. ES was moved to an evaluation and treatment center.

II. DETENTION UNDER CAUSE NUMBER 20-6-01826-1

¶ 6 On December 22, 2020, an examining psychiatric advanced registered nurse practitioner and an examining mental health professional petitioned for 14 days of involuntary treatment for ES. The petitioners believed ES was gravely disabled and required "intensive, supervised, 24-hour care." Id. After assessing ES, they concluded that due to "disorganized thinking [and] lack of volitional control," ES needed further inpatient care and that if ES were "to leave prematurely, [she] would be at risk to harm herself due to inability to take care [of her] basic health and safety needs." CP at 26. This petition was filed under Pierce County Superior Court cause number 20-6-01826-1.

¶ 7 On December 23, 2020, a superior court commissioner found by a preponderance of the evidence that ES was gravely disabled and ordered ES detained for "not more than 14 days [of] involuntary treatment." CP at 33 (boldface omitted). This order would have expired on January 6, 2021.

¶ 8 The commissioner's order notified ES: "If involuntary treatment beyond a 14 day period is sought, Respondent shall have the right to a full hearing or jury trial as required by RCW 71.05.310." CP at 34 (boldface omitted). RCW 71.05.310 gives the person named in a 90-day petition the right to request a jury trial; the right to hold the petitioner to a higher burden of clear, cogent, and convincing evidence to support continued detention; and the right to be present at the proceeding, "which shall in all respects accord with the constitutional guarantees of due process of law and the rules of evidence."

¶ 9 On December 24, 2020, ES was transferred from the evaluation and treatment center to Tacoma General Hospital because she fractured her arm and needed surgery. ES was transferred to Tacoma General on a single bed certification. Typically, mental health evaluation and treatment is provided by a licensed or certified "evaluation and treatment facility." RCW 71.05.020(23). However, the Health Care Authority "may certify single beds as temporary evaluation and treatment beds" at other facilities, such as local hospitals. Id. ; see also RCW 71.05.745.

¶ 10 The Washington Supreme Court has previously rejected attempts to use single bed certifications to address general overcrowding at evaluation and treatment facilities, especially because when a person is involuntarily committed in an emergency room or acute care medical hospital, they tend to receive " ‘less care’ " in " ‘a more restrictive environment.’ " In re Det. of D.W. , 181 Wash.2d 201, 206, 332 P.3d 423 (2014).

III. DETENTION UNDER CAUSE NUMBER 21-6-00027-1

¶ 11 Staff at Tacoma General believed ES should receive further treatment after the 14-day order expired and prepared to file a 90-day petition. However, the attending physician on "the day that [they] needed to file ... was unfamiliar with the Court's timeframe and thought that [they] could wait a few days and declined to sign the petition." Verbatim Report of Proceedings (VRP) (Jan. 13, 2021) at 33. The physician refused to sign because they "did not want the patient to be stuck ... at an acute care medical hospital for the full 90 days" on a single bed certification, and they "hoped that by not signing that it would pressure the community to move [ES] ... versus keeping her in an acute care medical facility." Id. at 36. Staff were not successful in contacting the physician's supervisor, and they did not obtain another signature for the petition.

¶ 12 Under the involuntary treatment act, the 90-day petition needed to be filed by Sunday, January 3, 2021, three days before the 14-day commitment order expired on January 6. See RCW 71.05.300(1). The social worker confirmed that she knew the 90-day petition needed to be filed by January 3, 2021. The attending physician refused to sign the petition on Thursday, December 31, 2020. Neither the clinical social worker nor the attending physician sought a continuance under RCW 71.05.210(3), which allows a continuance in involuntary treatment act proceedings of up to 14 days in order to accommodate hospitalization for medical care. Staff did not file a 90-day petition for ES.

¶ 13 Instead, on January 4, 2021, "the 14-day hold was dropped by the attending physician," and ES "was re-referred to the crisis responder for re-evaluation" for an emergency commitment. VRP (Jan. 13, 2021) at 34. When the hold was dropped, ES was not given the opportunity to leave the hospital and return to the community.

¶ 14 The social worker rereferred ES for an emergency custody evaluation at 4:45 p.m. on January 4, 2021. RCW 71.05.153(4) requires that designated crisis responders respond to emergency custody evaluation requests "[w]ithin twelve hours of notice." On January 5, 2021, at 10:00 a.m., over 17 hours after the social worker's referral, a designated crisis responder contacted ES to perform a mental status examination. The responder's report noted the reason for his referral as "[c]oncerns that the patient is still unstable after the 90 day petition was not filed due to an underlying mood disorder." CP at 43.

¶ 15 The designated crisis responder submitted a petition for emergency detention of ES under a new cause number, 21-6-00027-1. The petition stated, "The respondent was referred for an [involuntary treatment act] evaluation after the 90 day petition was not filed (doctor declined to sign the petition) and the 14 day hold was dropped early so that the patient could be evaluated again." CP at 2. When the crisis responder evaluated ES, she did not cooperate with the evaluation and instead cursed and yelled at the responder. The responder reported that the decision to detain ES was based on her prior refusal of medical treatment for her arm, "emotionally labile mood, [noncompliance with] psychiatric medication," and refusal of assistance with activities of daily living. CP at 4. The responder believed that ES had "made little to no progress since she was detained" in December 2020 and that she continued to be gravely disabled. Id. The petition also reflected that a nurse reported ES used her bedside table, her cast, and hospital cords " ‘as weapons,’ " but this particular statement was not admitted into evidence at the commitment hearing. CP at 2.

¶ 16 At 12:00 p.m. on January 5, 2021, the designated crisis responder notified ES that she was being taken into emergency custody at...