Opinion
No. 2 CA-SA 2018-0062
09-06-2018
ABDULLATIF ALI ALDOSARY, Petitioner, v. HON. JOSEPH R. GEORGINI, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PINAL, Respondent, and THE STATE OF ARIZONA, Real Party in Interest.
COUNSEL Falduto Law Firm PLLC, Mesa By Bobbi Falduto Counsel for Petitioner Kent P. Volkmer, Pinal County Attorney By Geraldine Roll, Deputy Pinal County Attorney, Florence Counsel for Real Party in Interest
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Spec. Act. 7(g), (i).
Special Action Proceeding
Pinal County Cause Nos. CR201301024, CR201301045, CR201501788, and CR201601530
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Falduto Law Firm PLLC, Mesa
By Bobbi Falduto
Counsel for Petitioner
Kent P. Volkmer, Pinal County Attorney
By Geraldine Roll, Deputy Pinal County Attorney, Florence
Counsel for Real Party in Interest
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.
BREARCLIFFE, Judge:
¶1 Petitioner Abdullatif Ali Aldosary seeks special-action relief from the respondent judge's July 26, 2018 orders subjecting him to involuntary psychiatric treatment, including the forcible administration of antipsychotic medication, in order to restore his competency to stand trial in the underlying criminal actions. As Aldosary correctly asserts, and the state concedes, there is no remedy by appeal from these interlocutory orders. See Cotner v. Liwski, 243 Ariz. 188, ¶ 7 (App. 2017). Additionally, a "significant liberty interest [is] implicated by the government compelling a person to take antipsychotic[]" drugs. Id. We therefore accept special-action jurisdiction.
¶2 The record we have been provided establishes that Aldosary was declared incompetent to stand trial in September 2017 and committed to the Restoration to Competency Program (RTC) at the Arizona State Hospital (ASH). Sergio Chavez, M.D., created a treatment plan at the end of September 2017 pursuant to the August 2017 diagnosis by James Holmes, Psy.D. of delusional disorder. Aldosary refused medication and remained incompetent. He was apparently returned to the Pinal County Jail in February 2018 after a final ASH report was filed that stated Aldosary's competency could not be assessed further. The respondent judge conducted an evidentiary hearing pursuant to Sell v. United States, 539 U.S. 166 (2003), on June 12, 2018, to determine whether to compel Aldosary to take psychotropic medications, including antipsychotic medications.
¶3 The primary focus of the Sell hearing was Chavez's treatment plan, his diagnosis and the diagnoses of other mental health care professionals. After the hearing, however, the program director of the Yavapai County Jail RTC Program, where Aldosary was committed and which had assumed the evaluations and recommendations regarding Aldosary's competency after he was discharged from ASH and returned to the Pinal County Jail, filed letters and reports. The July 5, 2018 individual restoration plan stated that Mark Collins, D.O., had recommended Aldosary be placed on a regimen of psychotropic medications, including a
titrated course of Haldol for the delusional disorder, beginning at one milligram, twice per day and increasing as appropriate up to an upper limit of twenty milligrams, twice per day, plus one milligram of Cogentin, twice per day, for possible side effects of Haldol. In his June 26 post-hearing memorandum, Aldosary objected to the respondent's reliance on Collins's treatment plan because it was not the subject of the Sell hearing, and asked for a new Sell hearing.
¶4 Without conducting further hearings, the respondent judge entered the orders that gave rise to this special action. In the minute-entry ruling, the respondent acknowledged the focus at the Sell hearing was on prior diagnoses and treatment plans, particularly Chavez's plan, but he applied the relevant portions of the Sell test to Collins's treatment plan. The respondent found Collins's plan "conservative and appropriate in light of the expert testimony in this case regarding beginning with one type of medication at a low dose." But there was no testimony relating to Collins's plan nor whether Haldol and the amount prescribed is appropriate for Aldosary. Indeed, the state's expert, Jack L. Potts, M.D., testified Chavez's recommendation that Aldosary be treated with any one of the antipsychotic medications Chavez had listed was appropriate, explaining these medications, known as "second generation" antipsychotic drugs, "are much more tolerable than the older ones like . . . Haldol."
¶5 Although Potts testified that medicating Aldosary is substantially likely to restore him to competency, it was not based on the treatment plan the respondent judge adopted. Additionally, Potts testified the "very least intrusive method of treatment would be the medications, especially antidepressant medications or antianxiety medications, and environmental change" to treat Aldosary's depression, which itself could be the cause of his delusions.
¶6 The respondent judge erred as a matter of law by adopting a treatment plan that was not the subject of the Sell hearing and thereby abused his discretion in ordering involuntary psychiatric treatment. See Ariz. R. P. Spec. Act. 3(c) (special action relief appropriate if respondent has abused discretion); State v. Miles, 243 Ariz. 511, ¶ 7 (2018) ("[A]n abuse of discretion occurs if the court makes an error of law."). We therefore grant special-action relief, vacate the respondent judge's orders, and direct the respondent judge to conduct further proceedings consistent with this decision.