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In re Lemke

Court of Appeals of Arizona, First Division
Apr 5, 2022
1 CA-MH 21-0055 (Ariz. Ct. App. Apr. 5, 2022)

Opinion

1 CA-MH 21-0055

04-05-2022

IN RE: J. LEMKE

Apache County Attorney's Office, St. Johns By Celeste Robertson Counsel for Appellee R. John Lee Attorney at Law, St. Johns By R. John Lee Counsel for Appellant


NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Apache County No. S0100MH202100008 The Honorable Garrett L. Whiting, Judge Pro Tempore

Apache County Attorney's Office, St. Johns By Celeste Robertson Counsel for Appellee

R. John Lee Attorney at Law, St. Johns By R. John Lee Counsel for Appellant

Judge Angela K. Paton delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass joined.

MEMORANDUM DECISION

PATON, JUDGE 1

¶1 Patient appeals the superior court's order for involuntary treatment. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 A medical director at a psychiatric hospital petitioned for Patient to receive a mental health evaluation in June 2021. Patient was admitted to the hospital on an emergency basis after he attacked and physically assaulted individuals at a car wash and was tased by the police for continued aggressive behavior. The petition noted Patient's history of schizophrenia and post-traumatic stress disorder ("PTSD") and explained that Patient refused hospitalization and psychiatric medication. The petition further stated Patient was having "grandiose delusions" and making "disjointed, paranoid statements, including: 'Everyone in the universe knows what you're doing . . . It's a blood bath out there.'" The superior court ordered Patient to undergo a mental health evaluation.

¶3 Following the evaluation, a medical director at the hospital petitioned for Patient to receive involuntary medical treatment. The petition alleged Patient was unwilling or unable to accept voluntary treatment, was a danger to others, and was persistently or acutely disabled. The petition contained affidavits from Drs. Abdallah and Segal, who both evaluated and diagnosed Patient with schizoaffective disorder, bipolar type. Dr. Abdallah described Patient as "paranoid that the NSA is listening[, ] . . . believes that he has telepathy[, ]" and believes "he is God." Dr. Segal's affidavit similarly noted that "[P]atient presents with disorganized speech, auditory and visual hallucinations, and grandiose and paranoid delusions." Both physicians said Patient disagreed with the diagnosis and refused to take psychiatric medication.

¶4 Before the evidentiary hearing on whether Patient should be ordered to undergo involuntary treatment began, Patient's counsel orally moved to dismiss the case, arguing the court should first consider whether Patient was willing to voluntarily submit himself for treatment. The State argued that although Patient should be offered a chance to be voluntarily present, the issue was whether Patient could manifest the capacity to give informed consent to be there voluntarily. See A.R.S. §§ 36-518(A), -534(A). In response, the superior court asked Dr. Abdallah, who had not yet been sworn in, for his opinion on Patient's motion to dismiss. Dr. Abdallah said he believed Patient was not a voluntary incoming patient. The superior court denied the motion and found that "under the circumstances, the Court doesn't believe that [Patient] is voluntarily, especially after hearing from Dr. Abdallah . . . submitting to treatment there." 2

¶5 Patient's counsel argued that Dr. Abdallah's opinion that Patient was not voluntarily at the facility was insufficient because it relied on Patient's refusal to take the prescribed medication. The superior court noted that Patient's counsel was "ignoring the facts that led [Patient] to the hospital." The court stated that although Patient was not actively behaving violently, it did not mean he was "cured," or did not medically require inpatient treatment.

¶6 The hearing proceeded, and the superior court heard from Drs. Abdallah and Segal, Patient and two social workers from the psychiatric hospital. Dr. Abdallah testified that Patient's schizoaffective disorder diagnosis made him "very dangerous to others" and "unable to take care of himself." Although Patient indicated he desired voluntary treatment, he repeatedly argued with hospital staff and refused to take the recommended medication, which was the only way to effectively treat his disorder. With the medication, Patient could take care of himself and eventually be released to a group home. Dr. Abdallah was "really concerned about [Patient's] well being if he [left] the hospital."

¶7 Dr. Segal similarly testified that Patient was "quite paranoid, quite delusional, disorganized" and "irritable." Along with finding that Patient was a danger to himself and others, Dr. Segal noted Patient was persistently or acutely disabled, did not acknowledge his schizoaffective disorder diagnosis or that he was psychologically ill, and refused to take medication.

¶8 When the social worker testified regarding an incident when Patient became "very angry" and "[left] the room" because she did not do something the way he wanted, the court interrupted her to tell Patient's counsel that he could see Patient's reactions to the testimony and would likely make findings based on those reactions.

¶9 Patient testified he did not believe the diagnosis of schizoaffective disorder was correct. He claimed it was his "unfortunate jokes" that led to the appearance of a delusion during his interview with Dr. Abdallah. He said he had PTSD from prior abuse and would only receive treatment, including medication, for PTSD and its symptoms. Additionally, Patient explained he talked to himself because he had "imaginary friends" and was "speaking out loud what [he was] thinking, and/or going through a conversation in which [he was] ready to talk to possible investors, or a group of students." 3

¶10 The superior court ordered Patient to undergo involuntary treatment, finding that clear and convincing evidence established (1) Patient was a danger to others, (2) Patient was persistently or acutely disabled, (3) Patient needed treatment but was either unwilling or unable to accept voluntary treatment, and (4) the ordered treatment was the least restrictive alternative. See A.R.S. § 36-540(A), (B). The superior court ordered Patient to undergo a combination of inpatient and outpatient treatment for up to 365 days, with inpatient treatment not to exceed 180 days. See id. § 36-540(C), (D), (F)(3).

¶11 Patient timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), -2101(A)(10)(a), and 36-546.01.

DISCUSSION

¶12 This court will not disturb an order for involuntary treatment if it is supported by substantial evidence. In re MH 2008-000438, 220 Ariz. 277, 278, ¶ 6 (App. 2009) (citation omitted). We view the evidence in the light most favorable to sustaining the superior court's order and will not disturb its factual findings unless they are clearly erroneous. Id.

¶13 To obtain an involuntary treatment order, the superior court must find by clear and convincing evidence that, because of a mental disorder, the individual "[1] is a danger to self, is a danger to others, [2] has a persistent or acute disability or a grave disability and is in need of treatment, and [3] is either unwilling or unable to accept voluntary treatment." A.R.S. § 36-540(A); see also id. § 36-501(32) (defining persistent or acute disability).

¶14 Strict compliance with statutory requirements is necessary for an involuntary treatment proceeding because such a proceeding may lead to a serious deprivation of a patient's liberty interests. In re Maricopa Cnty. Super. Ct. No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8 (App. 2002) (citation omitted). The elements for involuntary treatment are proven if all statutorily required information is in the record, "including medical evidence expressed to a reasonable degree of medical certainty or probability . . . ." In re MH 2007-001236, 220 Ariz. 160, 169, ¶ 29 (App. 2008). "The trier of fact is allowed to determine probability or lack thereof if the evidence, taken as a whole, is sufficient to warrant such a conclusion." Saide v. Stanton, 135 Ariz. 76, 78 (1983) (citation omitted).

¶15 On appeal, Patient argues that (1) the record lacks clear and convincing evidence to find that he was "unwilling or unable to accept 4 voluntary treatment" and (2) the superior court erroneously relied on the unsworn statement by Dr. Abdallah in making its voluntariness finding.

I. The record contains substantial evidence that the Patient was unwilling or unable to accept voluntary treatment.

¶16 A mentally ill person is not considered acutely disabled if the person is capable of making an informed decision about treatment. See In re MH 91-00558, 175 Ariz. 221, 225 (App. 1993) (citing A.R.S. § 36-501(29)(b) (1993)). Before assessing a mentally ill person's capacity to engage in rational decision-making regarding treatment, "'the doctors must explain the advantages and disadvantages of accepting treatment[] and . . . the alternatives to such treatment and the advantages and disadvantages of such alternatives.'" In re Pima Cnty. Mental Health No. MH20130801, 237 Ariz. 152, 158, ¶ 29 (App. 2015) (quoting MH 91-00558, 175 Ariz. at 225). This requirement may be excused if clear and convincing evidence indicates "it was impracticable to explain the advantages and disadvantages of treatment alternatives to the patient, such as when a patient engages in excessive verbal abuse, physical abuse, repeatedly walking away when the physicians attempt to discuss the matters, or nonresponsiveness." MH20130801, 237 Ariz. at 158, ¶ 30 (citation and internal quotation marks omitted).

Renumbered to A.R.S. § 36-501(32)(b).

¶17 Patient asserts that he both wanted and was willing to accept treatment voluntarily. The record, however, indicates that Patient was unwilling to accept the physicians' recommendations to treat his schizoaffective disorder and was only willing to engage in treatment for PTSD.

¶18 Patient repeatedly refused to follow the medication recommendations. Patient "argue[d] with [Dr. Abdallah] every day for about 15, 20 minutes about medication." Patient would "get upset" when discussing possible medications and "sometimes leave the room" and become "aggressive verbally" with hospital staff. When Dr. Abdallah attempted to discuss alternative medication options with Patient, Patient refused to engage, became upset, and left. Patient had "no insight into his psychiatric illness" and "when [Dr. Segal] was trying to assess [Patient's] capacity to consent to treatment or take medications [Patient] declined that he needed medication." 5

¶19 Patient testified he was willing to consider other medications that would address PTSD and suggested "multiple different medications." Dr. Abdallah emphasized, however, that the standard of care for a patient diagnosed with schizoaffective disorder was to prescribe antipsychotic medication and to do otherwise would place both Patient and others in danger. The record includes substantial evidence to support the superior court's finding that Patient was unwilling to consent to treatment.

¶20 Patient next asserts the superior court erred when it purportedly relied on Dr. Abdallah's unsworn statements to rule on his oral motion to dismiss regarding voluntariness. In addressing the argument, however, the superior court explained that Patient's counsel was ignoring the allegations in the petition concerning Patient attacking people at a car wash and having to be tased. The underlying petition contained information that Patient's behavior warranted proceeding with the hearing. Ultimately, the record contains substantial evidence to support the superior court's ruling on voluntariness.

¶21 The record reflects that Patient was not sufficiently stable to receive outpatient treatment. Drs. Abdallah and Segal testified that court-ordered treatment was the least restrictive means to treat Patient. Patient's testimony shows he did not appreciate the diagnosis. Patient's desire to assume the role of a mental health professional by agreeing to treatment for only one of his two mental disorders does not support a voluntariness finding. Thus, the record contains substantial evidence that Patient was unwilling or unable to accept treatment voluntarily.

CONCLUSION

¶22 We affirm. 6


Summaries of

In re Lemke

Court of Appeals of Arizona, First Division
Apr 5, 2022
1 CA-MH 21-0055 (Ariz. Ct. App. Apr. 5, 2022)
Case details for

In re Lemke

Case Details

Full title:IN RE: J. LEMKE

Court:Court of Appeals of Arizona, First Division

Date published: Apr 5, 2022

Citations

1 CA-MH 21-0055 (Ariz. Ct. App. Apr. 5, 2022)