Opinion
No. 1 CA-MH 11-0036
10-11-2011
IN RE SARAH R.
Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Kingman Matthew J. Smith, Mohave County Attorney By Dolores H. Milkie, Deputy County Attorney Attorneys for Appellee Kingman
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Mohave County
Cause No. MH-2011-00006
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Jill L. Evans, Mohave County Appellate Defender
By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant
Kingman
Matthew J. Smith, Mohave County Attorney
By Dolores H. Milkie, Deputy County Attorney Attorneys for Appellee
Kingman
OROZCO, Judge ¶1 Sarah R. (Appellant) appeals a court order of commitment for involuntary mental health treatment. She argues: (1) the evidence presented at trial was insufficient to establish that she was persistently or acutely disabled (PAD); and (2) the trial court did not properly consider available appropriate alternatives for her treatment and care. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In January 2011, Appellant was arrested for disorderly conduct in Kingman, Arizona. After her arrest, Appellant displayed conduct that led jail officials to place her in lock-down. The Kingman Municipal Court ordered a pre-Rule 11 evaluation of Appellant, which was conducted by Laurence Schiff, M.D. (Dr. Schiff). In his evaluation, Dr. Schiff diagnosed Appellant as Schizophrenic, disorganized type.
We take some background information from the Affidavit of Sirpa Tavakoli, M.D., dated February 24, 2011, and the briefs regarding a Motion for Order to Show Cause Why Patient Not Released, filed on February 23 and 24, 2011. Although this information is not relevant to the issues on appeal, we refer to it because the parties do not dispute its accuracy and it provides background.
¶3 On February 25, 2011, Dr. Tavakoli filed a Petition for Court Ordered Treatment (Petition for COT), alleging Appellant to be PAD. A hearing on the Petition for COT was scheduled for March 1, 2011. At the hearing, Dr. Tavakoli, Laurence D. Seltzer, M.D. (Dr. Seltzer), and staff at the Mohave Mental Health Clinic (MMHC) testified that Appellant is PAD and in need of involuntary treatment because she refused to acknowledge medication is a necessary part of her treatment. Appellant testified that she understood that medication is an option for treatment, but said she preferred to deal with her condition through counseling. In his closing argument, Appellant's attorney reiterated that Appellant did not dispute that she suffered from a mental disorder but said she preferred counseling, as opposed to medication, as the best way to treat her condition.
¶4 Following the hearing, the trial court issued an Order for Treatment based on its finding that Appellant is PAD, in need of psychiatric treatment, and unwilling or unable to accept help voluntarily. The court also found there were no other appropriate available alternatives for treatment. Appellant filed a timely Notice of Appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 12-2101.K (2003) and 36-546.01 (2009).
DISCUSSION
¶5 Appellant argues the involuntary treatment order should be vacated for two reasons: (1) the evidence presented at trial was insufficient to establish that she was PAD; and (2) there was no testimony presented at trial regarding available appropriate alternatives for her treatment and the court did not consider alternative treatment options in its order.
¶6 A court may order involuntary treatment only if it finds by clear and convincing evidence that treatment is necessary. A.R.S. § 36-540 (2011); In re MH 2007-001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418, 423 (App. 2008). We will not set aside a trial court's factual findings unless they are clearly erroneous or unsupported by substantial evidence. Matter of Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995). We review the interpretation and application of statutes de novo. In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 13, 152 P.3d 1201, 1204 (App. 2007).
¶7 Court-ordered involuntary treatment constitutes a "significant deprivation of liberty that requires due process protection." In re MH 2007-001264, 218 Ariz. 538, 539, ¶ 6, 189 P.3d 1111, 1112 (App. 2008); see also MH 2006-000749, 214 Ariz. at 321, ¶ 14, 152 P.3d at 1204 (citations and quotations omitted). Accordingly, a patient subject to a petition for involuntary treatment is entitled to a full and fair adversarial proceeding, and courts should strictly adhere to the requirements of the civil commitment statutes. MH 2006-000749, 214 Ariz. at 321, ¶¶ 14-16, 152 P.3d at 1204 (citations and quotations omitted).
Sufficiency of the Evidence
¶8 Appellant argues on appeal the State did not present sufficient evidence to support the court's finding that she is PAD. At trial, Appellant did not dispute that she is PAD. Normally, appellate courts will not address issues raised for the first time on appeal. See, e.g., In re MH 2008-002659, 224 Ariz. 25, 27, ¶¶ 9-10, 226 P.3d 394, 396 (App. 2010) (arguments not raised below are deemed waived except under exceptional circumstances). However, we have discretion in deciding whether to consider constitutional due process arguments raised for the first time on appeal. Id.; see also Olson v. Walker, 162 Ariz. 174, 181, 781 P.2d 1015, 1022 (App. 1989). Because of the liberty interests at issue, we will address Appellant's argument. See In re MH 2006-000023, 214 Ariz. 246, 248-49, ¶¶ 10-11, 150 P.3d 1267, 1269-70 (App. 2007) (stating that an involuntary treatment case is one of the extraordinary cases where an issue that was not raised below may be presented for the first time on appeal).
¶9 A.R.S. § 36-501.33 (2011) defines PAD as "a severe mental disorder" that meets the following three 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.
¶10 Appellant argues the evidence presented at trial was insufficient to meet the criteria under subsections (a) and (b). With regard to subsection (a), Appellant contends that "there was no showing that Appellant's disorder caused [] a 'substantial probability' that she would suffer severe and abnormal mental, physical or emotional harm." Accordingly, she contends, her condition "falls short of the sort of mental disorder and behavioral characteristics [necessary] to support the finding of [persistent or acute disablement]."
¶11 However, in her reply brief, Appellant concedes that her condition "may very well have been a disorder sufficient to meet the requirement of A.R.S. § 36-501.33(a) in that if untreated it has 'a substantial probability of causing (Appellant) 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.'" But she further argues that an arrest for disorderly conduct is not a severe consequence and does not indicate she is a danger to others. Nevertheless, the evidence in the record indicates that after her arrest for disorderly conduct, she was placed in lock-down, due to her behavior in jail. This evidence is sufficient to support a decision that the trial court's factual findings were not clearly erroneous or unsupported by substantial evidence.
¶12 Subsection (b) requires that a patient's disorder must cause him or her to be incapable of "expressing an understanding of the alternatives to the particular treatment offered after the advantages, disadvantages and alternatives are explained." A.R.S. § 36-501.33(b). See also In re MH 91-00558, 175 Ariz. 221, 225-226, 854 P.2d 1207, 1211-1212 (App. 1993). Appellant argues that subsection (b) requires doctors to explain to the patient: (1) the advantages and disadvantages of the proposed treatment and (2) the alternatives to the proposed treatment and the advantages and disadvantages of such alternatives. Appellant contends that the doctors did not adequately explain to her the proposed treatment and alternative treatment options before the hearing. As a result, she argues, the State could not satisfy subsection (b).
MH 91-00558 refers to "A.R.S. § 36-501.29(b)," which is an identical earlier version of A.R.S. § 36-501.33(b). The substance and content of the statute remain the same. For purposes of this decision, we treat the discussion in MH 91-00558 as referring to the current renumbered version of the statute in A.R.S. § 36-501.33(b).
¶13 At the outset, we note that Appellant's position on appeal is contradicted by her testimony and her attorney's closing argument below. During the hearing, Appellant testified that she understood the difference between treatment with medication and treatment with counseling and she preferred counseling. In addition, her attorney argued in closing:
[Appellant] understands the difference between medication. She understands that there is counseling. She chooses counseling as a more effective means of treating her disorder just based on her experience.... [She] rejected [medication] not based on unwillingness or an inability to understand it, but on her experience with it and her preference for counseling.
¶14 Furthermore, both examining physicians testified that they attempted to explain to Appellant the advantages and disadvantages of the proposed treatment as well as alternative treatment options. In addition, Dr. Tavakoli testified that Appellant does not understand the advantages and disadvantages of treatment after they were communicated to her.
¶15 However, assuming for the purpose of argument that Appellant did not receive adequate information, the physicians also testified that Appellant's condition made it impractical to explain to her the advantages and disadvantages of the recommended treatment and alternative options. Courts have found that the requirements of A.R.S. § 36-501.33(b) are met in limited circumstances where it is impractical to explain the proposed treatment and its alternatives. See, e.g., In re MH-1140-6-93, 176 Ariz. 565, 567-568, 863 P.2d 284, 286-287 (App. 1993) (when the patient is uncooperative during discussion of treatment); In re MH-90-00566, 173 Ariz. 177, 185-186, 840 P.2d 1042, 1050-1051 (App. 1992) (when the patient's disorder impedes rational decision-making about treatment).
¶16 As the court explained in MH 91-00558, A.R.S. § 36-501.33(b) requires doctors to either attempt to engage the patient in the decision-making process about treatment alternatives or explain why the patient's disorder prevents him or her from making a rational decision regarding treatment. 175 Ariz. at 225-226, 854 P.2d at 1211-1212. When the patient is uncooperative, there must be clear and convincing proof that additional efforts to communicate with the patient would have been futile. MH 94-00592, 182 Ariz. at 446, 897 P.2d at 748.
¶17 In this case, Appellant's physicians testified that efforts to explain alternative treatments were impractical for two reasons. First, both physicians gave specific reasons why Appellant was incapable of making rational decisions without medication. MH 91-00558, 175 Ariz. at 226, 854 P.2d at 1212. Dr. Tavakoli testified that Appellant "has no insight into her illness" and she does not understand that she is mentally ill. In addition, Dr. Tavakoli specifically testified that Appellant "has no understanding" of the advantages and disadvantages of the proposed treatment and that she would become disorganized and incoherent during conversations. Dr. Seltzer further testified that Appellant is delusional and medication would help calm her down so that she could understand her condition and participate in treatment decisions.
¶18 Furthermore, when asked specifically whether there were appropriate alternatives to medication, Drs. Tavakoli and Seltzer each testified that medication must be a part of the initial stages of Appellant's treatment in order to improve her rational decision-making. Dr. Tavakoli stated that medicine will allow Appellant to "think clearly and manage her life" and become "less disorganized and [able to] take in information." Dr. Seltzer testified that medicine would "be the first step to calm [Appellant] down and help her to be more reasonable." He also stated that medicine would help Appellant become less delusional.
¶19 Second, Dr. Seltzer and hospital staff testified that Appellant was uncooperative and unwilling to discuss the proposed treatment or treatment alternatives. Dr. Seltzer stated that when he attempted to explain the advantages and disadvantages of treatment, Appellant yelled and refused to listen and "if [Appellant] had complete control she would have kind of calmed down and we could have discussed alternatives but she did not want to listen." In addition, Bill Paulson, a nurse (Nurse Paulson) testified that Appellant was similarly uncooperative when he attempted to discuss different types of medication with her.
¶20 This case is different from MH 91-00558, where we overturned an order of commitment for involuntary treatment because the physicians' testimony that there "were no options" to the proposed treatment was insufficient to meet the requirement in A.R.S. § 36-501(33)(b). MH 91-00558, 175 Ariz. at 226, 854 P.2d at 1212. We held the physicians' testimony was insufficient in that case because: (1) the doctors did not specifically explain the proposed treatment to the patient or why they concluded no alternatives existed, and (2) neither doctor explained why the patient should not have the option to refuse treatment.
¶21 In contrast, in this case Drs. Tavakoli and Seltzer explicitly testified that Appellant's disorder impedes her ability to make rational decisions, especially regarding treatment because she does not believe she is ill. Furthermore, Dr. Seltzer and Nurse Paulson also stated that Appellant was uncooperative and refused to listen or participate in discussing treatment.
¶22 Thus, this case is similar to the situations in MH-90-00566, 173 Ariz. at 185-186, 840 P.2d at 1050-1051, where the patient's disorder prevented the patient from rationally participating in the decision-making process about treatment, and MH-1140-6-93, 176 Ariz. at 567-568, 863 P.2d at 286-287, where the patient refused to cooperate in treatment discussions. As the court recognized in MH 91-00558, testimony that the patient's disorder interferes with her decision-making ability so that she is unable to make a decision regarding her treatment can be sufficient to meet the requirements of A.R.S. § 36-501.33(b). 175 Ariz. at 226, 854 P.2d at 1212.
¶23 As the trier of fact, the trial court is in the best position to evaluate and weigh the evidence, and we will not set aside the court's factual findings unless they are clearly erroneous or unsupported by substantial evidence. MH 94-00592, 182 Ariz. at 443, 897 P.2d at 745.
¶24 There is sufficient evidence in the record to support the trial court's finding that the State presented clear and convincing proof that Appellant was incapable of making rational decisions about her treatment without medication. Furthermore, we find sufficient evidence in the record to support a finding that the examining physicians did attempt to explain the advantages and disadvantages of different types of treatment and that Appellant either did not understand the proposed treatment or was uncooperative. Accordingly, we conclude the trial court's factual findings were not clearly erroneous or unsupported by substantial evidence. See MH 94-00592, 182 Ariz. at 443, 897 P.2d at 745.
Available and Appropriate Alternative Treatments
¶25 Appellant next contends the order for treatment should be set aside because no testimony was presented regarding available and appropriate alternatives for treatment. In addition, she claims the trial court did not consider evidence of available and appropriate alternatives as required by A.R.S. § 36-540.B.
In support, Appellant relies on A.R.S. § 36-539.B (2011), which provides: "Witnesses shall testify as to the placement alternatives appropriate and available for the care and treatment of the patient."
A.R.S. § 36-540.B states: "The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive alternative available."
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¶26 However, although A.R.S. § 36-539.B (2011) does provide for witness testimony regarding treatment alternatives, the statute contemplates only a discussion of appropriate and available alternatives, not a discussion of every potential treatment option. As discussed above, Drs. Tavakoli and Seltzer each testified that medication is the only appropriate immediate treatment option for Appellant. Thus, the requirement in A.R.S. § 36-539.B that witnesses testify regarding "alternatives appropriate and available for the care and treatment of the patient" was met in this case.
¶27 Similarly, A.R.S. § 36-540.B requires the court to consider all available and appropriate alternatives; it does not require the court to consider any other alternative that the patient may prefer. In any event, Appellant testified regarding alternative treatment options, including outpatient counseling, and her attorney argued in favor of counseling during his closing argument. Accordingly, the court was aware of alternative treatment options when it made its findings and explicitly rejected them as appropriate treatments, stating on the record:
I believe under the statutes, under the testimony that I have heard today, that [Appellant] will not voluntarily come in and take medication on her own or get [the] help that she needs.... [U]nder the statute, [Appellant] has to be medicated and stabilized and able to take the medicine and then eventually be able to do the counseling that will eventually lead to her release.
¶28 Because the court was presented with alternative treatment options and explicitly rejected them as appropriate alternatives based on the testimony of witnesses, including Drs. Tavakoli and Seltzer, its factual findings were not clearly erroneous or unsupported by substantial evidence and the court's order does not violate the requirements of A.R.S. § 36-540.B.
CONCLUSION
¶29 For reasons stated above, we affirm the court's order of commitment for involuntary treatment.
PATRICIA A. OROZCO, Judge
CONCURRING:
DIANE M. JOHNSEN, Presiding Judge
PHILIP HALL, Judge