Mental Health Case No. MH 94-00592, Matter of

• Decision Date: 01 June 1995
• Docket Number: CA-MH,No. 1,1
• Parties: In the Matter of the Appeal in Maricopa County of MENTAL HEALTH CASE NO. MH 94-00592. 94-0002.
• Court: Arizona Court of Appeals

Page 742

897 P.2d 742

182 Ariz. 440

In the Matter of the Appeal in Maricopa County of MENTAL HEALTH CASE NO. MH 94-00592.

No. 1 CA-MH 94-0002.

Court of Appeals of Arizona,

Division 1, Department B.

June 1, 1995.

[182 Ariz. 441] Grant Woods, Atty. Gen. by Vicki Gotkin Adler, Asst. Atty. Gen., Phoenix, for appellant.

Dean W. Trebesch, Maricopa County Public Defender by Consuelo O. Leon, Deputy Public Defender, Phoenix, for patient, appellee.

OPINION

LANKFORD, Presiding Judge.

The Arizona State Hospital ("ASH") appeals from the dismissal of its petition for court-ordered mental health treatment. The superior court found that ASH failed to provide sufficient evidence of the patient's current behavior to indicate that he was persistently or acutely disabled as a result of a mental disorder. On appeal, three issues are presented:

1. Do we have jurisdiction over this appeal?

2. Did the trial court erroneously interpret the Mental Health Services Act ¹ to require clear and convincing evidence of current behavior which demonstrates the patient's persistent or acute disability?

3. Did the trial court erroneously dismiss ASH's petition?

The relevant facts are as follows. The patient, a twenty-six year-old man, was being treated at ASH at the time of the filing of the petition. Prior to this admission to ASH and starting from the age of sixteen, the patient had experienced numerous hospitalizations due to acute psychotic disturbances. During the course of these hospitalizations, the patient was repeatedly diagnosed with bipolar affective disorder mixed with psychosis and psychoactive substance abuse. The patient has consistently denied having any substance abuse problem.

The patient's past record included aggressive, delusional, and unpredictable behavior such as setting fire to his mother's carpet, assaulting his mother, throwing a telephone at elderly people while in the hospital, hearing voices, and seeing demons. He had a pattern of failing to take prescribed medication unless he was supervised.

From January 27 to February 15, 1994, the patient received outpatient mental health treatment at the Maricopa Medical Center pursuant to a prior court order. When the patient became noncompliant with treatment and exhibited assaultive behavior toward his mother, the outpatient treatment team requested that the court order be amended to permit inpatient treatment at ASH. The superior court revised its order to reflect the transfer to ASH.

While hospitalized at ASH, the patient was treated with various medications, including Lithium, Klonopin, Congentin, Thorazine, and Depakote. As his condition stabilized, the patient requested voluntary status. At ASH's request, the court terminated the patient's prior court order. ASH permitted him to stay at the hospital on a "sign in" basis. Several days after he signed in, the patient attempted to discharge himself against the physicians' advice. As a result, ASH petitioned the superior court for involuntary treatment for the patient.

At the hearing on the petition, Dr. Lydia Torio, the consulting psychiatrist at ASH, testified to the patient's psychiatric history, his current mental and emotional condition, and the reasons for the requested court-ordered treatment. In Dr. Torio's opinion, the patient was persistently disabled because he suffered from symptoms of bipolar disorder involving grandiose and paranoid delusions. She specifically noted that the patient was not exhibiting good judgment. He insisted on leaving the hospital despite not having any definite plan for further treatment. In addition, he adamantly denied having any mental disorder or needing medical treatment. Dr. Torio expressed concern that the patient would not take his medication if he were released from ASH. She recommended that the patient remain at ASH or in another highly supervised facility where he could be monitored continually to ensure his compliance with medication.

The parties also agreed to admit into evidence the affidavit of Dr. Austin Shinkoda, a psychiatrist who treated the patient at ASH. In a preprinted form affidavit in which Dr. Shinkoda marked various statements he found applicable to the patient, he characterized the patient as suffering from acute mental disturbances. The disturbances were manifested by delusional ideation, agitation, significant impairment of judgment and insight, and acute affective and behavioral lability. It was also Dr. Shinkoda's opinion that the patient was persistently or acutely disabled and in need of inpatient and supervised outpatient treatment.

According to the testimony of two nurses from ASH, the patient generally complied with his medication regimen and recreational privileges. However, he persistently denied having a medical problem or requiring medical treatment. The patient's social worker also testified at the hearing. He agreed with the physicians that ASH was the least restrictive placement available to the patient at that time.

The superior court concluded that ASH had not shown by clear and convincing evidence that, at the time of the hearing, the patient was exhibiting behavior which demonstrated his persistent or acute disability. The court based its decision on evidence that the patient's condition had improved, that he was medicine compliant, and that he had accepted voluntary inpatient treatment. The court dismissed ASH's petition, and ASH timely appealed.

I.

Our jurisdiction is a threshold question in this appeal. The patient argues that A.R.S. section 36-546.01 does not provide ASH with an avenue for appeal. A.R.S. section 36-546.01 provides:

An order for court ordered treatment may be reviewed by appeal to the court of appeals as prescribed in the Arizona Rules of Civil Procedure or by special action. Such appeal or special action shall be entitled to preference.

The patient reasons that because the superior court did not order treatment, the court's order dismissing the petition is nonappealable and ASH's sole remedy is to file another petition for court-ordered treatment.

We have jurisdiction pursuant to the general jurisdiction statute, A.R.S. section 12-2101(B). That statute authorizes appellate review of any "final judgment entered in an action or special proceeding commenced in a superior court." Section 36-546.01 is indeed inapplicable, but that merely means that this appeal is not entitled to the preference established by that statute for appeals by patients when they are ordered to submit to treatment.

Nor is this appeal moot. Although ASH's petition will have become stale during this appeal, the issue presented is one of statewide importance, which is capable of repetition yet evading review. See, e.g., Matter of Mental Health Case MH 92-020, 176 Ariz. 616, 617, 863 P.2d 908, 909 (App.1993); Matter of Alleged Mentally Disordered Person, 181 Ariz. 290, 889 P.2d 1088, 1090 (1995). Not only may the issue recur when ASH petitions for the same treatment for other similarly situated patients, this patient has repeatedly been diagnosed with mental disorders and therefore may be subject to petitions for court-ordered treatment in the future.

Furthermore, the need to clarify the statutory scheme governing mental health services is an issue of considerable public interest. We therefore consider the merits of this appeal.

II.

We review the trial court's decision to determine whether it is supported by substantial evidence. Matter of Pima County Mental Health Serv., 176 Ariz. 565, 566, 863 P.2d 284, 285 (App.1993). The court's findings of fact will not be set aside unless they are clearly erroneous or unsupported by any credible evidence. Matter of Coconino County No. MH 1425, 176 Ariz. 525, 528, 862 P.2d 898, 901 (App.1993), vacated on other grounds, 181 Ariz. 290, 889 P.2d 1088 (1995). However, the interpretation of a statute constitutes a legal question and is therefore reviewed de novo. Arnold v. Arizona Dep't of Health Serv., 160 Ariz. 593, 603, 775 P.2d 521, 531 (1989).

ASH challenges the superior court's decision requiring proof that the patient is exhibiting behavior at the time of the hearing which indicates a persistent or acute disability. According to ASH, proof of persistent or acute disability does not require behavioral evidence. The patient responds that the court must consider the patient's current behavior before rendering a finding of persistent or acute disability.

The governing statutes do not require evidence of behavior that reveals the disability. Under A.R.S. section 36-540(A), the court shall order a proposed patient to undergo mental health treatment if it "finds by clear and convincing evidence that [he] is, as a result of mental disorder, ... persistently or acutely disabled ... and in need of treatment, and is either unwilling or unable to accept voluntary treatment." "Persistently or acutely disabled" is defined as a severe mental disorder that meets all of these criteria:

(a) If not treated has a substantial probability of causing the person to suffer or continue to suffer severe and abnormal mental, emotional or physical harm that significantly impairs judgment, reason, behavior or capacity to recognize reality.

(b) Substantially impairs the person's capacity to make an informed decision regarding treatment and this impairment causes the person to be incapable of understanding and expressing an understanding of the advantages and disadvantages of accepting treatment and understanding and expressing an understanding of the alternatives to the particular treatment offered after the advantages, disadvantages and alternatives are explained to that person.

(c) Has a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment.

A.R.S. § 36-501(29). This statute focuses on the mental disorder which may cause the impairment of either thought processes or behavior in making the determination of mental disability. In contrast, other grounds...