Opinion
1 CA-MH 23-0085
10-31-2024
IN RE: MH2023-004502
Maricopa County Attorney's Office, Phoenix By Joseph Branco, Sean M. Moore Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix By Robert S. Shipman Counsel for Appellant
Appeal from the Superior Court in Maricopa County No. MH2023-004502 The Honorable Nicolas B. Hoskins, Commissioner, Pro Tempore
Maricopa County Attorney's Office, Phoenix By Joseph Branco, Sean M. Moore Counsel for Appellee
Maricopa County Legal Defender's Office, Phoenix By Robert S. Shipman Counsel for Appellant
Judge Andrew M. Jacobs delivered the Opinion of the Court, in which Presiding Judge Michael J. Brown joined. Judge Angela K. Paton dissented.
OPINION
JACOBS, JUDGE
¶1 Mental health patient A.R. appeals the superior court's order imposing mandatory mental health treatment upon him. Social worker M.G. - who had never before met A.R. - assessed A.R. clinically, applied for his evaluation, and testified in support of the petition to treat him involuntarily in a manner consistent with the testimony of the doctors who evaluated A.R. Because A.R.S. § 36-539(B) requires the testimony of two acquaintance witnesses who meet the conditions set forth in Matter of Commitment of Allegedly Mentally Disordered Person, 181 Ariz. 290, 292 (1995), to support a petition for involuntary treatment, and because M.G.'s meeting with A.R. was privileged and confidential under A.R.S. § 32-3283 and no exception to that confidentiality applied, we vacate the court's order.
FACTS AND PROCEDURAL HISTORY
¶2 A.R. has a history of mental illness. In July 2022, A.R. received court-ordered mental health treatment and was discharged from care in one month. Then, in May 2023, A.R. was taken to the hospital by his mother after she found him confused and unresponsive at home.
¶3 Hospital staff asked M.G., a licensed master social worker, to examine A.R. to conduct an assessment of him, because of her professional skills as a social worker. M.G. performed a "level of care assessment." Specifically, she acted as a crisis interventionist and assessed A.R.'s mental state to provide level of care recommendations for treatment and also discharge options.
¶4 Before the assessment, M.G. told A.R. their consultation would not necessarily remain confidential, as it could give rise to a petition for court-ordered treatment, and that M.G. might appear in court to discuss it. During the assessment, M.G. noted A.R. had a flat affect, showed signs of thought blocking, and was very slow and disorganized in the few instances when he responded. M.G. testified she had neither a therapeutic relationship with A.R. nor a confidential relationship with him, and met with him only once, for the assessment.
¶5 After the assessment, M.G. applied for an involuntary evaluation of A.R., which became the basis for a petition for the court-ordered treatment of A.R. that is at issue in this matter. The petition was filed by A.N., a medical director of a facility providing mental health treatment. M.G.'s application makes several clinically evaluative statements about A.R., referring to A.R. as having a history of "F29" (a diagnostic code for unspecified psychosis) and/or "schizophrenia," and twice to A.R.'s "psychotic state." Although M.G. did not view A.R. as a danger to himself or others, the petition for court-ordered treatment designated him as such. The superior court then set a hearing on the petition.
¶6 A.R. moved to preclude M.G. from testifying, asserting she was licensed pursuant to A.R.S. § 32-3251 and therefore subject to the requirements of confidentiality in A.R.S. § 32-3283. The superior court denied the motion to preclude, finding M.G.'s verbal disclaimer of confidentiality to A.R. sufficient to keep any privileged relationship from forming.
Arizona Revised Statutes § 32-3251 was renumbered effective September 14, 2024, so that the former § 32-3251(8) is now -3251(9) and the former -3251(11) is now -3251(12). This opinion refers to the statute's subparts by their newly effective numbering.
¶7 On May 24, 2023, M.G. appeared and testified as an acquaintance witness. She explained that she was called by hospital staff to conduct an assessment of A.R. for reason of her professional skills. She testified on the State's examination of her that A.R. "had a flat affect, had thought blocking, very slow to respond to minimal responses; the responses that were provided were disorganized in thought." The State summarized her testimony in clinical and diagnostic terms: "[s]he said disorganized thought process, and thought[]blocking. The exact same symptoms as the doctors found in their affidavits." The court's summary of it was likewise diagnostic and clinical: "she talks about a flat affect, delayed responses, blank stares, disorganized thought process, thought blocking." The court found A.R. persistently or acutely disabled and ordered him to undergo a combined inpatient and outpatient treatment plan for a maximum of 365 days. A.R. timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 36-546.01.
DISCUSSION
I. The Superior Court Erred in Ordering Treatment.
¶8 "The scope of the behavioral health professional-client privilege is a question of law we review de novo." In re MH2019-004895, 249 Ariz. 283, 286 ¶ 6 (App. 2020). We also review issues of statutory interpretation de novo. Id. "To subject a person to involuntary commitment," the petitioner's obligation is "complete compliance" with each statutory requirement. In re Pima Cnty. Mental Health No. 20200860221 , 255 Ariz. 519, 524 ¶¶ 10-11 (2023). We view the facts in the light most favorable to upholding the superior court's decision. In re MH2020-004882, 251 Ariz. 584, 586 ¶ 12 (App. 2021).
¶9 We note that the superior court's commitment order has expired, meaning the appeal became moot during the appellate process. In re MH 2008-000028, 221 Ariz. 277, 280-81 ¶ 13 (App. 2009). We may address an otherwise moot appeal when it involves issues of public importance that are capable of repetition and yet evade review. Matter of Commitment, 181 Ariz. at 292; In re MH 2005-001290, 213 Ariz. 442, 443 ¶ 7 (App. 2006). Given the liberty interests at stake and likelihood they will arise in other cases, we decide the merits of this appeal. See Matter of Commitment, 181 Ariz. at 292.
A. Under A.R.S. § 36-539(B), No Person Whose Sole Contact With A.R. Was to Examine Him as Part of the Commitment Evaluation Process May Serve as an Acquaintance Witness.
¶10 Before the State may compel a person to receive mental health treatment against their will, there are two separate testimonial hurdles the State must surmount. First, a petition that a court order mental health treatment for a patient must be supported by "the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder." A.R.S. § 36-539(B). Second, the petition must also be supported by the "testimony of the two physicians or other health professionals who participated in the evaluation of the patient ...." Id.
¶11 The Arizona Supreme Court has addressed the scenario this case presents - the State's attempted use of health professionals who met the patient to examine them as the required acquaintance witnesses. Matter of Commitment, 181 Ariz. at 291 ("the parties have agreed that it is common practice to use mental health examiners as acquaintance witnesses"). In that case, the State had "[f]our mental health professionals . . . attempt[] to examine and evaluate" the patient in custody. Id. at 291. As in this case, the examined person was not communicative or cooperative with the State's professionals. Id. As in this case, the State successfully obtained an order compelling treatment based on the testimony of a health professional offered as one of the acquaintance witnesses A.R.S. § 36-539(B) requires. Id.
¶12 In that case, our supreme court reversed. Matter of Commitment, 181 Ariz. at 292. As it explained, the legislature's choice in A.R.S. § 36-539(B) to require two professional evaluators, but separately, two acquaintance witnesses, demonstrated that an acquaintance witness was not simply a third or fourth professional evaluator. Id. Accordingly, "no person whose primary contact with the patient was to examine the patient during his or her commitment evaluation process may testify at the hearing as one of the required acquaintance witnesses." Id. A contrary approach would frustrate the statute's clear design, which requires professional evaluations, but also non-evaluator testimony that "give[s] the trial court an opportunity to determine how the patient behaves in situations other than commitment evaluation interviews." Id. We next apply our supreme court's holding to the facts of this case.
B. M.G., Whose Sole Contact With A.R. Was to Examine Him to Apply to the Court for His Evaluation, and Who Testified to the Same Observations and Diagnoses as the Evaluating Physicians, Cannot Serve as an Acquaintance Witness.
¶13 Given the Arizona Supreme Court's holding in Matter of Commitment, we ordered supplemental briefing as to whether A.R.S. § 36-539(B) allowed M.G. to testify as an acquaintance witness. The State argues M.G. may be an acquaintance witness because she is not one of the two evaluating professionals who perform the evaluation of a person for involuntary treatment identified in A.R.S. § 36-501(13). The State emphasizes that A.R.S. § 36-539(B) uses the term "evaluation" as a term of art drawn from A.R.S. § 36-501(13), and from that concludes that any other diagnostic professional who examined A.R. should not be understood as part of the evaluation. Finally, the State argues as a matter of policy that following Matter of Commitment literally would make it difficult where needed to compel mental health treatment of unhoused persons, as they might lack the requisite two acquaintances. A.R. argues that Matter of Commitment requires reversal, because M.G. was part of the process of examining and evaluating A.R. A.R. emphasizes that M.G.'s interactions with him were not only formal, structured, and evaluative, but were also performed while A.R. was subjected to the strain of diagnostic evaluation.
¶14 We disagree with the State's position for two reasons.
¶15 First, A.R.S. § 36-539(B) makes clear that acquaintance witnesses are meant to be separate and distinct from those who evaluate the potentially committed person. Matter of Commitment, 181 Ariz. at 292 ("There is a clear distinction between . . . acquaintance witnesses and mental health evaluators."). As our supreme court explained, these categories are separate "to prevent professional mental health evaluators" from "rubber stamping" each other's conclusions, and also "to give the trial court an opportunity to determine how the patient behaves in situations other than commitment evaluation interviews." Id.
¶16 Here, M.G. served as the applicant on the petition to evaluate, confine, and treat A.R. The State put M.G.'s diagnostic and evaluative role here beyond dispute when it argued in open court of M.G. that "[s]he said [A.R. had] disorganized thought process, and thought[]blocking. The exact same symptoms as the doctors found in their affidavits." Based on M.G.'s and the doctors' essentially identical diagnoses, the State prevailed in compelling A.R. to submit to involuntary treatment. The convergence at the hearing of the doctors' and M.G.'s diagnostic testimony about A.R. shows why the dissent's comparison of M.G. to the jail staff in Matter of Commitment is not persuasive. See ¶ 38, infra. Yes, she served as the applicant - but there, the similarities end. Unlike jail staff, who were presumably acquainted with the patient in that case through non-clinical interactions, M.G. is a clinically trained social worker who met A.R. once to facilitate the commitment process, and who offered diagnostic testimony fully consistent with the doctors' testimony that proved essential to confining and treating A.R. over his objections. Thus, here, as in Matter of Commitment, the superior court "simply did not have much opportunity to hear how [A.R.] behaved when he was not . . . being interrogated about his mental health by people who clearly had the power to commit him to a mental institution." 181 Ariz. at 292-93; see also In re Maricopa Cnty. Superior Ct. No. MN 2001-001139, 203 Ariz. 351, 355 ¶ 25 (App. 2002) (noting that acquaintance testimony from two nurses who had exposure to the patient's behavior "offered the court the informal, day-to-day observation" the statute requires); Matter of Appeal in Pima Cnty. Mental Health Matter No. MH 862-16-84, 143 Ariz. 338, 340 (App. 1984) (explaining the role of acquaintance witnesses is to "attest to the general demeanor of the proposed patient," and although the nurse who testified "may have been more enlightened than the average person regarding hospitalization and treatment for mental disorders, her testimony described only appellant's physical appearance, conversation, and general conduct while hospitalized").
¶17 Second, accepting the State's position would entail that anyone who is not one of the "two physicians or other health professionals who participated in the evaluation" of the patient in A.R.S. § 36-539(B) may necessarily serve as an acquaintance witness. That position is foreclosed by Matter of Commitment, in which the supreme court held "no person whose primary contact with the patient was to examine the patient during his or her commitment evaluation process may testify at the hearing as one of the required acquaintance witnesses." 181 Ariz. at 292. Here, M.G. examined A.R. and recommended the evaluation that led to his involuntary treatment. As noted above, she testified consistent with the diagnoses of the evaluating physicians. She was functionally part and parcel of the "commitment evaluation process," which excludes her from participating as an acquaintance witness. See id.
¶18 Finally, we reject the State's argument that we should decide this case differently because, as a matter of policy, following Matter of Commitment may make it difficult to provide mental health services to the unhoused. Our supreme court considered and rejected a similar logic in Matter of Commitment, writing: "[w]e realize it may be more difficult and time consuming to find acquaintances of some patients facing involuntary commitment." 181 Ariz. at 292. In short, we cannot vary the meaning of the statute because in other cases certain persons, or types of persons, may lack acquaintances.
¶19 Because allowing M.G. to testify as an acquaintance witness is contrary to A.R.S. § 36-539(B) and the Arizona Supreme Court's decision in Matter of Commitment, we reverse.
II. M.G.'s Examination of A.R. Was to Assist Him in Returning to Function, Making It Privileged and Subject to No Exception to Privilege Under A.R.S. § 32-3283(A).
¶20 A.R. argues M.G.'s testimony should not have been admitted because he and M.G. had a confidential, professional-client relationship pursuant to A.R.S. § 32-3283(A). The State argues M.G. disclaimed her way around the confidentiality otherwise conferred by A.R.S. § 32-3283(A) when she explained to A.R. that their discussion could potentially be used in a proceeding to compel treatment of him. The State further argues M.G.'s contact was too brief and nontherapeutic to give rise to confidentiality. The statutes support A.R.'s position on this point too, as we next explain.
A. A.R.S. § 32-3283, Read with A.R.S. § 32-3251, Makes A.R.'s Interactions with M.G. Privileged and Confidential.
1. M.G.'s Information About A.R. Was Privileged Because It Was "Received by Reason of the Confidential Nature of the Behavioral Health Professional-Client Relationship."
¶21 Section 3283 bars licensees from divulging information received from patients such as A.R. where the information is "received by reason of the confidential nature of the behavioral health professional-client relationship." A.R.S. § 32-3283(A). To determine whether the information M.G. testified to concerning A.R. was thus received, we look to the definitions of closely related terms in A.R.S. § 32-3251.
¶22 These definitions leave no room for doubt that M.G., a licensed social worker, stood in a confidential relationship with A.R. The practice of behavioral health is confidential, because "client" in A.R.S. § 32-3283(A) includes anyone receiving "behavioral health services." A.R.S. § 32-3251(2), (9). And "the practice of behavioral health" means "the practice of . . . social work." A.R.S. § 32-3251(9). The "practice of social work" includes the "application of social work theories, principles, methods, and techniques to [a]ssist individuals . . . to . . . restore the ability to function physically, socially, emotionally, mentally and economically." A.R.S. § 32-3251(12)(b). It also includes "the application of social work theories, principles, methods, and techniques to [t]reat mental, behavioral, and emotional disorders." A.R.S. § 32-3251(12)(a).
¶23 If either A.R.S. § 32-3251(12)(b) or (a) apply, what M.G. learned by meeting with A.R. was confidential and therefore privileged. Here, both apply.
¶24 First, the record shows M.G. was "[a]ssisting [A.R.] . . . to enhance or restore [his] ability to function . . . socially, emotionally, [or] mentally ...." A.R.S. § 32-3251(12)(b). M.G. testified that she met with A.R. to formulate a recommendation for his level of care and to support planning to discharge him. By recommending care and a path toward discharge, M.G. assisted A.R. as described in progressing toward discharge when able. See A.R.S. § 32-3251(12)(b). Put otherwise, diagnosis assists in restoring a person with troubles to functioning. Jandre v. Wis. Injured Patients &Fams. Comp. Fund, 813 N.W.2d 627, 648 ¶ 87 (Wis. 2012) ("[D]iagnosis is an essential component of modes of treatment, and diagnostic tests are important to a patient's decision making."); see A.R.S. § 32-3251(12)(b).
¶25 Second, the record also shows that M.G. was "[t]reat[ing A.R.'s] mental, behavioral, and emotional disorders." A.R.S. § 32-3251(12)(a). For one thing, diagnosis is an essential part of treatment. See Jandre, 813 N.W.2d at 648. For another, Arizona courts have recognized that assessment of a patient is part of treatment. In Ritchie v. Krasner, 221 Ariz. 288, 296 ¶¶ 15-18 (App. 2009), we held that reviewing patient records as part of an independent medical examination ("IME") gave rise to a duty between the assessing physician and the person assessed, despite there being no formal relationship, given that the IME (much like M.G.'s assessment of A.R.) was conducted for a third party. This conclusion followed from our supreme court's holding in Stanley v. McCarver, 208 Ariz. 219, 223 ¶ 13 (2004), that a doctor assessing the chest X-rays of a potential employee for a third party (an employer) owed duties to the assessed person as a result of that assessment, despite the lack of a formal doctorpatient relationship. The evaluation here for a third party is part and parcel of the treatment to follow, as cases recognizing tort liability for assessing doctors demonstrate. See Horner v. Texas, 129 S.W.3d 210, 219-20 (Tex. App. 2004) (explaining that the "[trial court] could have concluded [the patient] made the statement to [social worker] for the purpose of receiving treatment to help her situation[]"). The dissent's observation that these cases are not cases under state statutes like A.R.S. § 32-3251, while true, misunderstands our purpose in citing them. The inextricable logical relationship between diagnostic evaluation and treatment need not be demonstrated only through cases arising under state compulsory mental health treatment statutes.
2. By Making A.R.'s Privilege with M.G. "the Same as Between an Attorney and a Client," A.R.S. § 32-3283 Reinforces That the Privilege Applied Here.
¶26 The legislature made the scope of confidentiality between mental health patients and licensed social workers "the same as between an attorney and a client." A.R.S. § 32-3283(A) ("The confidential relationship between a client and a licensee, including a temporary licensee, is the same as between an attorney and a client."). That language underscores in two ways that information M.G. derived from meeting A.R. is privileged.
¶27 First, the legislature decided not to create a time limit below which there would be no confidentiality, or a requirement of a certain number of meetings. Brevity is no bar to an attorney-client relationship in Arizona law. Foulke v. Knuck, 162 Ariz. 517, 520 (App. 1989) ("The fact that a consultation is relatively brief does not negate the establishment of an attorney-client relationship.") (Roll, J.). Section 3283 thus suggests even brief or individual encounters between licensees and patients give rise to confidential relations, just as they would between lawyers and potential clients. Id. (finding attorney-client relationship arose from single initial consultation between potential client and lawyer, and disqualifying lawyer from representation adverse to them).
¶28 The dissent's argument against privilege barring M.G.'s testimony founders for this reason. While the dissent points out M.G. only met A.R. once, that is fully consistent with privilege arising between an attorney and a client. Foulke, 162 Ariz. at 520. The lawyer in Foulke argued against their disqualification by claiming they held one simple intake meeting to determine whether to take the client, receiving little information. Id. M.G.'s pre-petition meeting with A.R. is much like the intake in Foulke - a quick evaluation based on first impressions. Minimizing these encounters as nonprivileged because they take place in one meeting and are thus a mere screening lacks support in the law of attorney-client privilege, and thus in A.R.S. § 32-3283(A).
¶29 Second, the legislature put A.R. in the driver's seat in determining whether there is a privilege - not M.G. It is well-settled that the attorney-client privilege (to which the privilege here is analogous) is held by the client, and not the professional service provider. Burch &Cracchiolo, P.A. v. Myers, 237 Ariz. 369, 374 ¶ 17 (App. 2015). Thus, only the client (A.R.) can waive it - the service provider (M.G.) cannot. See id. The legislature reproduced that guidance in the statute at issue here, providing that "[u]nless a client waives this privilege in writing or in court testimony," a licensee such as M.G. is barred from providing information received by reason of their relationship with the client. A.R.S. § 32-3283(A). And it is undisputed that A.R. neither signed a waiver nor waived his privilege in open court. The statute thus prohibited M.G.'s testimony.
¶30 Third, the State's (and the dissent's) response to this is unavailing. They rely on M.G.'s statements to A.R. before meeting with him as effecting a compulsory waiver by the State through M.G.'s supposed anticipatory confirmation that whatever M.G. learned would not be confidential. Allowing social workers to opt out of the statute's definition of their work as confidential by unilaterally announcing that it is not undoes the plain text of A.R.S. § 32-3283(A). This we cannot do. In re Riggins, 257 Ariz. 1, 2 ¶ 12 (2024) ("If a statute's text is plain and unambiguous, it controls unless it results in an absurdity or a constitutional violation."). For that reason, it does not matter if M.G. did anticipatorily disclaim away confidentiality.
¶31 But the State's and the dissent's position fails for the additional reason that M.G. did not announce that everything she learned was non-confidential. To the contrary, M.G. explained that she could disclose information concerning "danger to self or others" - but that's an exception to privilege in the statute allowing disclosure. See A.R.S. § 32-3283(C) ("The behavioral health professional-client privilege does not extend to cases in which" the professional must report "a clear and imminent danger to the client or others."). Referring to that limited exception to confidentiality does not give M.G. or the State the license to reveal confidences beyond its scope. M.G.'s other testimony amounts to confirming that her obligations of confidentiality had limits that might allow disclosure. In short, the State neither has the statutory power to anticipatorily disclaim away A.R.'s statutorily conferred privilege, nor did it successfully incant the words to do so anyway.
B. We Decline to Follow In re MH2020-004882 .
¶32 We reject the State's further contention that we should affirm based on MH2020-004882, because it approved the practice of a health professional anticipatorily disclaiming the examined person's privilege, and then testifying as to their evaluation of the patient at a commitment hearing. 251 Ariz. 584 (App. 2021). We do so for three reasons.
¶33 First and foremost, MH2020-004882 is inconsistent with our supreme court's holding in Matter of Commitment. It empowers an evaluating health professional to declare an examined person's privilege unavailable through a disclaimer of confidentiality. It thus lets the examining health professional take off their therapeutic hat to don the garb of an acquaintance witness.
¶34 But A.R.S. § 32-539(B) doesn't let an examining health professional do that. There is no question M.G. met A.R. to assess his condition and potentially testify about him at a hearing - she told him so in their meeting. She did not know him before that or in any other social setting. From those undisputed facts, M.G.'s testimony cannot do what the plain design of A.R.S. § 32-539(B) asks, which is "to give the trial court an opportunity to determine how the patient behaves in situations other than commitment evaluation interviews." Matter of Commitment, 181 Ariz. at 292. To the contrary, as our supreme court warned, those "goals may be frustrated when other evaluators," like M.G. here, "are used as acquaintance witnesses." Id. We thus follow A.R.S. § 32-539(B) and decline to apply MH2020-004882 as inconsistent with it.
¶35 Second, rejecting MH2020-004882 is consistent with the policies supporting the behavioral health privilege. As we have previously observed, "[w]ithout the privilege, a client may not trust a behavioral health professional enough to share information that would enable the professional to provide appropriate treatment." MH2019-004895, 249 Ariz. at 288 ¶ 16. This privilege protects client and public safety by encouraging candor, while allowing behavioral health professionals to disclose dangers to the self or others. A.R.S. § 32-3283(C)(1). But where, as here, the client's issues do not include harm to the self or others, and the client does not waive the privilege in writing or in court, we must honor that confidentiality, which our legislature has placed on par with attorney-client privilege. See A.R.S. § 32-3283(A).
¶36 Third, the result in MH2020-004882 was reconcilable with A.R.S. § 32-3283 in an important way today's case is not. In MH2020-004882, the patients shared suicidal thoughts with their social workers, which would trigger the exception in A.R.S. § 32-3283(C)(1) permitting disclosure of those confidences. See 251 Ariz. at 585-86 ¶¶ 4, 8. By contrast, there is no evidence here of suicidal ideations. Indeed, M.G. testified she did not consider A.R. a danger to himself or others. We decline to formulate a novel rule for cases in which a person is no danger to themselves or others that the State may send social workers to assess and evaluate such persons for treatment, and that the social workers may escape the commands of A.R.S. § 32-3283 by reciting a one-sided disclaimer of the privilege the statute confers. Such a rule would violate the legislature's directives and disrespect the deprivation of liberty at stake.
CONCLUSION
¶37 For the foregoing reasons, we vacate the superior court's order that A.R. receive mental health treatment.
PATON, J., dissenting:
¶38 I respectfully dissent. Because M.G.'s role is akin to the jail personnel/staff in Matter of Commitment of an Allegedly Mentally Disordered Person, 181 Ariz. 290 (1995), who initiated the involuntary commitment proceedings-and not to the mental health professionals who examined and evaluated the patient after jail personnel initiated the involuntary commitment proceedings-I would hold that Matter of Commitment did not prohibit M.G. from testifying as an acquaintance witness. And because the information A.R. provided to M.G. was not "received by reason of the confidential nature of the behavioral health professional-client relationship[,]" per Section 32-3283(A), I would affirm the superior court's ruling that A.R. and M.G. did not form a confidential relationship under the statute.
I. M.G. could properly testify as an acquaintance witness under Matter of Commitment and Section 36-539(B).
¶39 Title 36 lays out the process by which involuntary commitment proceedings may be commenced. Importantly, there is a critical distinction between applying for court-ordered evaluation and initiating involuntary commitment proceedings pursuant to Section 36-520, which is what M.G. did, and petitioning for court-ordered evaluation under Section 36-533, which is what the medical director did. This distinction is crucial because it is not until an application is filed that the formal "evaluation" discussed in Matter of Commitment occurs for purposes of Section 36-539(B).
¶40 First, "[a]ny responsible individual may apply for a court- ordered evaluation of a person who[,]" as relevant here, the applicant believes is persistently or acutely disabled and "is unwilling or unable to undergo a voluntary evaluation." A.R.S. § 36-520(A) (emphasis added). The application must include "[a] statement that the applicant believes the proposed patient is in need of screening, evaluation, supervision, care[,] and treatment[,] and the facts on which this statement is based." A.R.S. § 36-520(B)(7) (emphasis added).
¶41 "If the applicant for the court-ordered evaluation presents the person to be evaluated at the screening agency, the agency shall conduct a prepetition screening examination" of the patient and "prepare a report of opinions and conclusions." A.R.S. § 36-520(E) (emphasis added); § 36-521(B). The statute contemplates that the screening agency is the entity that files the petition for court-ordered evaluation. See A.R.S. § 36-521(A) ("On receiving the application for evaluation, the screening agency, before filing a petition for court-ordered evaluation ....") (emphasis added). "Screening Agency" is defined as "a health care agency that is licensed by the department and that provides those services required of the agency by this chapter." A.R.S. § 36-501(44).
¶42 It is not until after the screening agency receives the application that the pre-petition evaluation takes place, unless the patient voluntarily consents to the evaluation, see A.R.S. § 36-522, or "it has been determined that the proposed patient does not need an evaluation[.]" A.R.S. § 36-520(I). And the evaluation can only be conducted by the screening agency. A.R.S. § 36-520(E).
¶43 Here, M.G. is the "responsible individual" who applied for court-ordered evaluation of A.R. The relevant statutes say nothing about an "evaluation" being part of the application process; instead, the word "evaluation" is used multiple times as part of the process occurring after the application is filed. See A.R.S. §§ 36-520 et seq. Here, it was the medical director who filed the petition for court-ordered treatment of A.R. that was the subject of the hearing.
¶44 In Matter of Commitment, our supreme court held that "no person whose primary contact with the patient was to examine the patient during his or her commitment evaluation process may testify at the hearing as one of the required acquaintance witnesses." 181 Ariz. at 292. But M.G. could not have examined A.R. as part of the "commitment evaluation process" because the process was not even initiated until M.G. filed the application for involuntary commitment. And her interaction with A.R. took place before she filed the application. "By statute, an application for evaluation is the means by which involuntary evaluation and eventually court-ordered treatment proceeds. It is the first in a series of procedural steps that must be taken before an individual can be involuntarily required to submit to court-ordered psychiatric evaluation and treatment." In re Maricopa Cnty. Super. Ct. No. MH 2001-001139, 203 Ariz. 351, 352, 354, ¶¶ 2, 23 (App. 2002) (holding it was not error for the court to allow nurses who observed patient while he was being detained for evaluation to testify as acquaintance witnesses because they were not part of the "statutory evaluation team" or the "formal evaluation process" per Section 36501(11)).
¶45 M.G.'s role is therefore akin to the jail staff in Matter of Commitment who observed and initiated the commitment proceedings which led to that patient's evaluation and not like the mental health professionals who "examined and evaluated" the patient after the proceedings commenced and as part of the formal "evaluation" per Section 36-501(13). Nothing in Matter of Commitment indicates that the jail staff who observed the patient there could not have testified as acquaintance witnesses under Section 36-539(B). M.G. was simply not part of the evaluation process that occurred post-application like the medical providers who testified in Matter of Commitment. 181 Ariz. at 293 ("[w]e do not mean to suggest that medical personnel who are not part of the evaluation process become ineligible to testify as acquaintance witnesses merely because of their expertise."). I would therefore hold that M.G. was permitted to testify as an acquaintance witness.
II. The superior court properly concluded that A.R. and M.G. did not form a confidential relationship under Section 32-3283(A).
¶46 The information A.R. provided to M.G. was not "received by reason of the confidential nature of the behavioral health professional-client relationship[,]" per Section 32-3283(A). Section 32-3283 discusses "[t]he confidential relationship between a client and a licensee, including a temporary licensee[.]" A.R.S. § 32-3283(A). It provides that, absent certain exceptions, "a licensee shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the behavioral health professional-client relationship." Id.
¶47 M.G. is employed as a crisis interventionist with Crisis Preparation and Recovery, Inc. ("CPR"). Hospital staff asked her to conduct a "level of care assessment" for A.R. She met with A.R. on this single occasion for less than 30 minutes and testified that the purpose of the meeting was to provide "[a] level of care recommendation and safety" and "discharge planning."
¶48 At the beginning of their meeting, M.G. told A.R. that M.G. could disclose the contents of their conversation in a petition for court-ordered treatment. M.G. also told A.R. that any information A.R. shared with her could be divulged in court during the court-ordered treatment process. A.R. did not respond to these warnings. After discussing the court-ordered treatment process, M.G. attempted to learn about A.R.'s mental health history. A.R. told M.G. that he "was SMI [seriously mentally ill]" but gave "no further additional details." M.G. asked A.R. whether he was taking any medication; A.R. did not respond. M.G. asked A.R. whether he was attending his clinic; he did not respond. M.G. asked A.R. who his case manager was; he did not respond. M.G. testified that this short series of questions, to which A.R. offered no answers, constituted the substance of their meeting. M.G. testified that she did not provide any therapy or counseling to A.G. during their meeting.
¶49 Further, as previously discussed, Section 36-520 allows "[a]ny responsible individual" to "apply for a court-ordered evaluation," so long as the application contains certain data about the proposed patient. A.R.S. § 36-520(A)-(B). The person filing the application must be "a person with knowledge of the facts requiring emergency admission[,]" who "may be a relative or friend of the person, a peace officer, the admitting officer or another responsible person." A.R.S. § 36-524(B). After M.G. met with A.R., she filed two applications-one for involuntary evaluation, pursuant to Section 36-520-and one for emergency admission for evaluation, pursuant to Section 36-524. She named "CPEC" as the agency to evaluate A.R. and requested that this agency conduct a "pre-petition screening" of A.R.
¶50 The majority concludes that because M.G. has a social work license, she must have "appli[ed] . . . social work theories, principles, methods[,] and techniques[,]" to assist and treat A.R. See supra ¶¶ 21-25 (citing A.R.S. § 32-3251(12)(a), (b)). Under this reasoning, any person applying for evaluation and bearing a social worker's background would be treating the patient. The majority also suggests that M.G. diagnosed A.R., see supra ¶¶ 16-17, 24-25, but the record is devoid of any evidence showing that she did so, or that she had the authority to render a diagnosis for A.R. M.G. did not counsel or provide any therapy to A.R. during their 30-minute meeting. At M.G.'s request, a CPEC medical director evaluated A.R. and then petitioned for court-ordered evaluation by licensed medical physicians. Two attending physicians conducted psychiatric examinations of A.R. and provided detailed evaluation notes via affidavit, which included A.R.'s diagnosis. M.G. never treated or diagnosed A.R.
The majority also cites to the Wisconsin Supreme Court's use of the term "diagnosis" to support its conclusion that assessment equates to treatment and M.G. therefore diagnosed A.R. See supra ¶ 25 (citing Jandre v. Wisconsin Injured Patients & Fams. Comp. Fund., 813 N.W.2d 627, 648, ¶ 87 (Wis. 2012)). In that case, the court addressed whether, under a Wisconsin informed consent statute, a physician had a duty to inform his patient of the availability of an alternative, non-invasive procedure. Jandre, 813 N.W.2d at 634, ¶¶ 2, 4. But that case is not a mental health case, and the facts and legal analysis are not analogous to this case. Similarly, the two Arizona cases the majority cites to support its conclusion that M.G. treated A.R. are distinguishable because they are not mental health cases and they address a doctor's duty of care after conducting medical assessments of patients, which is not the type of relationship at issue here. See supra ¶ 25 (citing Ritchie v. Krasner, 221 Ariz. 288, 293-94, 296, ¶¶ 1, 15-18 (App. 2009) and Stanley v. McCarver, 208 Ariz. 219, 223, ¶ 13 (2004)).
¶51 I also disagree with the majority that In re MH2019-004895, 249 Ariz. 283 (App. 2020) supports its conclusion that M.G. provided behavioral health services to A.R. and formed a confidential relationship with him during their interaction. See supra ¶ 35. The facts of that case are distinguishable from this case because (1) the witness there was assigned to the patient as his "clinical liaison," and testified that she had an ongoing relationship with the patient and interacted with him approximately twelve times; (2) the clinical liaison acknowledged she had a confidential relationship with the patient in which she "made assessments" regarding the patient's mental illness; and (3) unlike here, there was "[n]o testimony . . . showing that [the patient] was informed that her . . . interaction with [the clinical liaison], or any prior interactions, fell outside the scope of a behavioral health professional-client relationship[.]" In re MH2019-004895, 249 Ariz. at 285, 287, ¶¶ 2, 12-13. Conversely here, M.G. met with A.R. once for 30 minutes, informed him at the outset that their discussion was not confidential, and did not treat or diagnose him.
¶52 Further, unlike the majority, I would argue that not only does Matter of Commitment not conflict with In re MH2020-004882, 251 Ariz. 584 (App. 2021), as amended (July 20, 2021), this case is akin to MH2020-004882. The legal analysis of In re MH2020-004882 addressed the nature of the evaluation and the verbal warning of non-confidentiality-the issues we confront here. 251 Ariz. at 585, 586-87, ¶¶ 1, 13-18 ("We hold that a clinical social worker does not provide 'behavioral health services' where he or she interacts with a patient only once to assess whether the patient should be evaluated as a risk of harm to themselves or others and where the social worker has warned the patient at the outset that any statements the patient makes about harming self or others will not remain confidential."). There, this court held that it was proper to allow a licensed clinical social worker to testify as an acquaintance witness based on her one-time interaction with the patient "to assess whether the patient should be evaluated as a risk of harm to themselves or others" and "the social worker ha[d] warned the patient at the outset that any statements the patient ma[de] about harming self or others [would] not remain confidential." Id. at 585, ¶ 1. The court distinguished In re MH2019-004895, concluding that, "[b]ased on the prediscussion warnings the social workers gave [the patients], it would be unreasonable for [the patients] to believe the social workers would keep confidential any statements they made that revealed a risk of harm to themselves or others." Id. at 587, ¶ 17.
¶53 Similarly, here, M.G.'s one-time meeting with A.R. that lasted less than 30 minutes did not rise to the level of a behavioral health professional-client relationship under Section 32-3283. In both applications, and in her witness information statement, M.G. described her relationship to A.R. as "Crisis Interventionist." M.G. affirmed she advised A.R. that "all conversations" were "non-confidential for the purposes of court-ordered treatment." The disclosure further stated that M.G., as a representative of CPR, could "disclose [A.R.'s] conversation(s) to the Arizona Superior Court through testimony or treatment records to pursue Title 36 mental health treatment." The mere fact that M.G. also possessed a social work license did not automatically create a behavioral health professional-client relationship under Section 32-3283.
¶54 The majority concludes M.G.'s verbal warning does not comply with Section 32-3283(A) because A.R. did not provide a confidentiality waiver in writing or through testimony. See supra ¶ 29. But the record shows A.R. did not provide a waiver because there were no confidences to waive. M.G. specifically stated she told A.R. she could disclose the information she received from him and then explained the court-ordered treatment process. She did not provide any therapy or counseling to A.R. She testified she did not have an ongoing relationship with A.R., and when asked whether she had a confidential relationship with him "as it related to any mental health court-ordered treatment proceedings," M.G. testified she did not.
¶55 The legislature said the confidential relationship between a client and a licensee is "the same as between an attorney and a client," A.R.S. § 32-3283(A), and it is well-settled that the existence of an attorneyclient relationship "may be implied from the parties' conduct." In re Petrie, 154 Ariz. 295, 299 (1987) (citations omitted). The party asserting an attorney-client relationship exists may offer evidence that the potential client "sought and received advice and assistance from the attorney in matters pertinent to the legal profession." Id. In those cases, the attorney assesses whether he wants to represent a potential client. Even if he chooses not to take the case, we protect their initial discussions to encourage the potential client to speak truthfully. See McGlothlin v. Astrowsky, 255 Ariz. 449, 456, ¶ 19 (App. 2023).
¶56 But this record offers no indication that there was potential for a future licensee-patient relationship between M.G. and A.R. Between her sworn applications and testimony, M.G. conveyed to A.R. that any information he shared with her would not be confidential. Without a confidential relationship arising under Section 32-3283, there was no duty to seek the patient's waiver, and thus the limited exceptions for sharing confidential information are irrelevant.
¶57 In sum, the record is devoid of evidence showing that M.G. applied social work theories, principles, and methods for the purposes of assisting A.R. to "restore [his] ability to function," or that she treated any "mental, behavioral[,] and emotional disorders." See A.R.S. § 32- 3251(12)(a), (b). M.G.'s verbal explanation of non-confidentiality to A.R. was sufficient to keep any privileged relationship from forming a confidential, professional-client relationship under Section 32-3283. Given her one-time interaction with A.R. for the limited purpose of a "level of care assessment" and "discharge planning," I would hold that M.G. was properly called as an acquaintance witness under Section 36-539(B), which requires testimony from "two or more witnesses acquainted with the patient at the time of the alleged mental disorder[.]" I would therefore affirm the superior court's order.
¶58 I respectfully dissent.