Opinion
No. 30059-1-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-6-01327-9. Judgment or order under review. Date filed: 02/06/2003. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Achiyamma Indu Thomas, Aty General of Washington, 670 Woodland Square Loop SE, PO Box 40124, Olympia, WA 98504-0124.
D.W. appeals from a February 6, 2003 order of involuntary civil commitment detaining him for treatment at Western State Hospital for a period of 90 days. He argues that the trial court erred by allowing expert testimony (1) referencing the clinical observations and diagnosis of a non-testifying psychiatrist; and (2) expressing an opinion that amounted to a legal conclusion. Although the 90 day treatment period has expired, D.W. argues that these issues involve matters of continuing and substantial public interest. We disagree, and dismiss this appeal as moot.
Facts
Dr. Donald G. Slone, Ph.D., and Dr. Peter Bingcang, M.D., petitioned for a 90 day involuntary treatment of D.W. under Chapter 71.05 RCW, alleging that D.W. was suffering from a mental disorder and was gravely disabled. D.W. demanded a jury trial.
Dr. Slone, a staff psychologist at Western State Hospital testified at trial. Because D.W. would not let Dr. Slone evaluate him personally, Dr. Slone based his evaluation primarily on information provided by D.W.'s admission records, his treatment team, and other existing records.
D.W.'s counsel objected before Dr. Slone could testify about his diagnosis, arguing lack of foundation. The trial court sustained the objection but after Dr. Slone testified about how he reached his own conclusion, allowed him to give his diagnosis.
Dr. Slone's diagnosis rested largely on an initial psychiatric assessment performed by Dr. Sevanty, a staff psychiatrist. Dr. Sevanty did not testify, but Dr. Slone testified that his diagnosis was the same as Dr. Sevanty's: "paranoia, schizophrenia, crying with depression," with the additional diagnosis of pain disorder and somatization disorder. I Report of Proceedings at 52.
Dr. Bingcang, a staff psychiatrist at Western State testified, without objection, about Dr. Slone's diagnosis and evaluation. He also relied on Dr. Sevanty's initial psychiatric assessment. D.W.'s counsel did object to Dr. Bingcang's testimony that D.W. was gravely disabled. The trial court overruled this objection and Dr. Bingcang testified that in his opinion, D.W. suffered from a mental disorder and that he was gravely disabled.
The jury found D.W. to be suffering from a mental disorder and gravely disabled, and determined that he should be detained for evaluation and treatment for a period not to exceed 90 days. The trial court issued an order on the verdict that same day. D.W. appeals.
Analysis
As the 90 day detention period has expired, we cannot provide effective relief and this appeal is moot. See In re Detention of Swanson, 115 Wn.2d 21, 24, 793 P.2d 962, 804 P.2d 1 (1990). Nonetheless, we may reach the merits of a moot case if the issues involved relate to matters of continuing and substantial public interest. In re Matter of McLaughlin, 100 Wn.2d 832, 838, 676 P.2d 444 (1984). To determine whether this case involves matters of continuing and substantial public interest, we consider "(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur." McLaughlin, 100 Wn.2d at 838.
The need to clarify the civil commitment statutory scheme is an issue of continuing and substantial public interest. In re Detention of LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986). But challenges that turn on facts unique to a particular case and that are unlikely to recur will not support review. See In the Detention of R.A.W., 104 Wn. App. 215, 221, 15 P.3d 705 (2001) (whether trial court had good cause to continue detainee's hearing involved facts unique to detainee's case and was unlikely to recur); In re Detention of R.W., 98 Wn. App. 140, 143-44, 988 P.2d 1034 (1999) (issue of admissibility of transcript testimony was moot because it involved private question, would not likely recur, and was a matter of discretion).
D.W. first argues that the trial court erred by admitting the testimony related to Dr. Sevanty's admission evaluation and diagnosis when Dr. Sevanty did not testify at trial. He asserts that this testimony violated the physician-patient privilege, as applied to civil commitment proceedings through RCW 71.05.250.
RCW 71.05.250 provides in part:
The physician-patient privilege or the psychologist-client privilege shall be deemed waived in proceedings under this chapter relating to the administration of antipsychotic medications. As to other proceedings under this chapter, the privileges shall be waived when a court of competent jurisdiction in its discretion determines that such waiver is necessary to protect either the detained person or the public.
The waiver of a privilege under this section is limited to records or testimony relevant to evaluation of the detained person for purposes of a proceeding under this chapter. Upon motion by the detained person or on its own motion, the court shall examine a record or testimony sought by a petitioner to determine whether it is within the scope of the waiver.
The record maker shall not be required to testify in order to introduce medical or psychological records of the detained person so long as the requirements of RCW 5.45.020 are met except that portions of the record which contains opinions as to the detained person's mental state must be deleted from such records unless the person making such conclusions is available for cross-examination.
Although RCW 71.05.250 applies specifically to 14-day detentions, our Supreme Court has also held that it applies to 90-day commitment proceedings. In re Detention of R., 97 Wn.2d 182, 185-86, 641 P.2d 704 (1982) (RCW 71.05.250 applies to 90-day commitment proceedings pursuant to RCW 71.05.310).
D.W. next argues that the trial court erred by allowing Dr. Bingcang to testify, that in his opinion, D.W. was gravely disabled as a result of a mental disorder. He asserts that this testimony was improper because it was a conclusion of law that told the jury what decision to reach and was not evidence that would assist the trier of fact in determining the facts in issue.
Both of these issues relate to the admission of evidence. A trial court has broad discretion in ruling on evidentiary matters, State v. Reed, 101 Wn. App. 704, 708, 6 P.3d 43 (2000) (citing State v. Ellis, 136 Wn.2d 498, 523, 963 P.2d 843 (1998)); Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997)), and resolution of such matters depends primarily on facts that are specific to the particular case. Moreover, the resolution of these evidentiary issues will do little to clarify the statutory scheme governing civil commitment. As these issues are private rather than public, will likely not recur under the same facts, and are matters of discretion that would not benefit from our guidance, we dismiss this appeal as moot.
In D.W.'s assignment of error and section titles, he claims that this testimony deprived him of a fair trial and he cites the constitutional provisions and case law requiring due process. But he then fails to present any argument linking the right to due process to the procedure that occurred here. Because the mere mention of a constitutional right is insufficient to merit relief, we do not pursue this issue further. See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Appeal dismissed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and QUINN-BRINTNALL, A.C.J., concur.