Opinion
No. 1 CA-MH 13-0050
04-01-2014
In re MH2013-002059
Maricopa County Office of the Legal Defender, Phoenix By Anne Phillips Counsel for Appellant Maricopa County Attorney's Office, Phoenix By Bruce P. White, Anne C. Longo Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
MH2013-002059
The Honorable Susan G. White, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Office of the Legal Defender, Phoenix
By Anne Phillips
Counsel for Appellant
Maricopa County Attorney's Office, Phoenix
By Bruce P. White, Anne C. Longo
Counsel for Appellee
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 At a hearing on a petition for court-ordered mental health treatment, A.R.S. § 36-539(B) requires two physicians who have evaluated the proposed patient to testify regarding whether the proposed patient is, as a result of a mental disorder, a danger to self and persistently or acutely disabled, and whether the proposed patient requires treatment. Appellant appeals from the trial court's order that she undergo mental health treatment, arguing that the testimony of one of her two examining physicians failed to satisfy A.R.S. § 36-539(B). We find the testimony sufficient, and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 This matter began when Appellant presented at a hospital following an overdose of prescription medication. A crisis therapist met with Appellant and filed applications for emergency admission for evaluation and for involuntary evaluation. The applications noted that Appellant suffered from schizoaffective disorder; had attempted suicide by overdose; was depressed, paranoid and delusional with suicidal thoughts; and refused to undergo voluntary evaluation. An attending physician petitioned for court-ordered evaluation a few days later, finding reasonable cause to believe that Appellant posed a danger to self as a result of a mental disorder. The petition noted that Appellant denied her diagnosis of schizoaffective disorder and continued to refuse voluntary evaluation. The court granted the petition and ordered Appellant detained at the hospital pending further court order.
¶3 Dr. Gretchen Alexander in turn petitioned for court-ordered treatment ("COT") after evaluating Appellant, alleging that Appellant suffered from a mental disorder that caused her to be a danger to self and persistently or acutely disabled. Attached to the petition were sworn affidavits of Dr. Alexander and Dr. Lydia Torio that summarized their respective evaluations of Appellant. Both affidavits included addendums specifically addressing the allegation that Appellant was persistently or acutely disabled. Because Appellant does not challenge Dr. Torio's opinions on appeal, our decision focuses on Dr. Alexander.
¶4 Dr. Alexander's affidavit declared that she had diagnosed Appellant with "Psychotic Disorder, Not Otherwise Specified," and reiterated that this mental disorder caused Appellant to be persistently or acutely disabled and a danger to self. In particular, Dr. Alexander noted that although Appellant had a prescription for antipsychotic medication, she was "highly resistant to any suggestions that she take a dose higher than 2mg, and collateral information suggests that on an outpatient basis, she has been poorly compliant with recommended psychiatric treatment." Dr. Alexander opined that while Appellant "denies any suicidal ideation, intent, or plan[,] . . . it is questionable whether she is reliable at this point" and "[i]t does not appear likely that she would be able to meaningfully engage in voluntary outpatient treatment at this time."
¶5 Moreover, Dr. Alexander answered "Yes" to the question: "Does the patient have a severe mental disorder that, 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?" To support her answer, Dr. Alexander explained that "[Appellant] has a documented history of treatment of paranoia and possibly depression over the course of the past ten years. She . . . recently required medical hospitalization following an overdose, which appears to be intentional." Dr. Alexander's responses to additional prompts opined that "[Appellant] does not appear to recognize her recent symptoms as suggesting a psychiatric problem, nor her behavior [as] being potentially dangerous" and "[Appellant] does not appear to have sufficient awareness of the severity of her current symptoms to recognize her need for treatment, or to make a rational choice among the various treatment options." Based on her evaluation, Dr. Alexander concluded that there was "a reasonable prospect that [Appellant's] severe mental disorder is treatable by outpatient, inpatient, or combined inpatient and outpatient treatment," and specifically that "[Appellant] likely would benefit from stabilization in an inpatient setting and treatment with antipsychotic medication until such time as her judgment and reality testing have improved sufficiently to allow her to participate safely in outpatient treatment in the community."
¶6 The parties did not stipulate to admission of the examining physicians' affidavits, but the petitioner called both Drs. Alexander and Torio to testify at the COT hearing. Dr. Alexander testified that she prepared similar affidavits in the ordinary course of her practice, and that the opinions contained in the one filed in this case were based on her personal interview with Appellant, her review of Appellant's medical history, and her conversation with Appellant's outpatient treatment provider. The petitioner moved to admit Dr. Alexander's affidavit in lieu of further direct testimony, which the court granted without objection from Appellant though subject to cross-examination and redirect.
The Maricopa County Attorney's Office represented the petitioner at the COT hearing, in accordance with A.R.S. § 36-503.01.
¶7 On cross-examination, Dr. Alexander confirmed that she would currently diagnose Appellant with psychotic disorder, not otherwise specified. When questioned whether she could make that diagnosis "with a reasonable degree of medical certainty," Dr. Alexander responded that "[t]here does seem to be enough evidence to support that diagnosis." Dr. Alexander also corroborated her examination notes from the day before the COT hearing, in which she had stated that Appellant was "not paranoid, not grandiose, not delusional, . . . ha[d] no hallucinations," and that her "thought process was coherent, her insight was partial, [and] her judgment was mildly impaired." Based on that day's exam, Dr. Alexander had further noted that Appellant "denied suicidal ideation, homicidal plans, [and] violent ideation, and [that] her intellectual . . . functioning was average." Dr. Alexander acknowledged writing in her examination notes from the week preceding the hearing that Appellant's mental status was "anxious dash mild," that her judgment ranged from "mildly to moderately impaired," and that her thought-process had changed from "tangential" upon admission to "circumstantial" the next day and "coherent" the day before the hearing. Dr. Alexander testified to why she had described Appellant as having "partial insight" throughout the week she saw her:
In this case I believe that it means that [Appellant] is able to say that she has a past history of having problems with paranoia, and that she's able to acknowledge that she has needed psychiatric treatment in the past. But that she is not in full agreement with the . . . treatment recommendations that have been made for her, and she does not appear toWhen asked to clarify which treatment recommendations Appellant disagreed with, Dr. Alexander replied: "[W]hen she was seen in the clinic, a higher dose of antipsychotic was recommended for her and she was adamantly opposed to that. And there is a history of her having declined antipsychotic treatment completely . . . ."
understand the importance of following the treatment recommendations.
¶8 At the end of cross-examination, Dr. Alexander answered questions about the severity of Appellant's alleged mental disorder:
Q: Okay. So what is severe about my client's purported mental disorder?And on redirect, the petitioner asked Dr. Alexander whether it was "possible for someone, for a patient, based upon your experience, to still be a danger to herself? Even though she has mild to moderate judgment impairment and partial insight?" Dr. Alexander responded: "Well, I think so, depending on the circumstances. Sure."
A: What is severe about her mental disorder is you -- just over the course of the -- just over the course of her illness?
Q: No. What's severe about it now, that she needs involuntary commitment?
A: Oh. Well, as you know we're planning to discharge her today, so I don't believe that currently she's severely ill. However, there is a recently and concerning history of her being uncooperative without patient treatment, and so I believe that she would benefit from an outpatient court order, to allow whatever clinicians work with her after discharge to be able to ensure that she gets the appropriate treatment should she become more symptomatic.
From context, it appears that "uncooperative without patient treatment" should actually read "uncooperative with outpatient treatment."
¶9 In closing, Appellant's counsel argued that the petitioner had failed to prove that Appellant was a danger to self or persistently or acutely disabled. Relying on Dr. Alexander's testimony that Appellant would benefit from outpatient treatment and that Appellant never presented with anything beyond "moderate" judgment impairment, counsel asserted that "[b]enefitting from outpatient treatment is not enough to make the definition for persistently or acutely disabled" because, according to counsel, the proposed patient's "mental disorder has to be severe enough that [treatment]'s required." Counsel also argued that although Appellant was initially uncooperative with treatment, she had since become cooperative and the petitioner had therefore failed to show that she was "unwilling or unable to accept treatment at this time."
¶10 Upon "review[ing] and consider[ing] the file[,] including the petition for court ordered treatment, the affidavits for Drs. Alexander and Torio, . . . the medication affidavit[, the] outpatient treatment plan and the testimony of the witnesses," the court found "by clear and convincing evidence [that Appellant] is suffering from a mental disorder and, as a result, is persistently or acutely disabled and a danger to self, and is in need of treatment and is either unwilling or unable to accept voluntary treatment." The court further found "no available or appropriate alternatives other than court ordered treatment," and ultimately ordered Appellant to undergo a combination of inpatient and outpatient treatment. Before adjourning, the court addressed Appellant: "I will tell you, in being completely honest, after everything I've heard I believe that you have minimal insight into you[r] own mental health at best, and probably close to none."
¶11 Appellant timely appeals.
STANDARD OF REVIEW
¶12 "We view the facts in the light most favorable to sustaining the trial court's judgment," In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009), "and will not reverse an order for involuntary treatment unless it is 'clearly erroneous and unsupported by any credible evidence,'" In re MH2009-002120, 225 Ariz. 284, 290, ¶ 17, 237 P.3d 637, 643 (App. 2010) (citation omitted). However, we review de novo the application and interpretation of statutes involving involuntary mental health treatment. In re MH2010-002637, 228 Ariz. 74, 78, ¶ 13, 263 P.3d 82, 86 (App. 2011). "Because involuntary treatment proceedings may result in a serious deprivation of appellant's liberty interests, statutory requirements must be strictly met." Maricopa Cnty. Super. Ct. No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002).
DISCUSSION
¶13 Appellant contends that Dr. Alexander did not testify "to any degree of medical certainty" concerning the matters that A.R.S. § 36-539(B) required her to testify about, and thus the "petitioner only had one valid doctor's opinion and not the two required by law." Appellant advances the following assertions in support of her argument: (1) "[Dr. Alexander] only stated that Appellant would 'benefit' from an outpatient court order, and not that Appellant required treatment as dictated by the statute"; (2) "[Dr. Alexander] even stated that she did not think that Appellant was currently (at the time of the hearing) severely ill"; and (3) Dr. Alexander failed to clarify whether her opinion on redirect that "someone could still be a danger to herself even with mild to moderate judgment impairment and insight . . . was the case with Appellant."
¶14 Under A.R.S. § 36-539(B), the petitioner or the proposed patient is required to present "testimony of the two physicians who participated in the evaluation of the patient." This requirement "may be satisfied by stipulating to the admission of the evaluating physicians' affidavits." Id. The examining physicians must testify "as to their personal observations of the patient" and "as to their opinions concerning whether the patient is, as a result of mental disorder, a danger to self or to others, is persistently or acutely disabled . . . [and] whether the patient requires treatment." Id. "'Danger to self' . . . [m]eans behavior that, as a result of a mental disorder . . . [c]onstitutes a danger of inflicting serious physical harm on oneself, including attempted suicide." A.R.S. § 36-501(6)(a)(i). "Persistently or acutely disabled" means suffering from
a severe mental disorder that meets all the following criteria:A.R.S. § 36-501(32). We have construed the first definitional criterion of persistently or acutely disabled "to mean that there must be the real probability that the individual will suffer some danger of harm from [her] mental disorder if the condition is not treated." Maricopa Cnty. Cause No. MH-90-00566, 173 Ariz. 177, 183, 840 P.2d 1042, 1048 (App. 1992).
(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.
¶15 The physicians' "testimony shall state specifically the nature and extent of the danger to self or to others, [and] the persistent or acute disability." A.R.S. § 36-539(B). Further, "the testimony from each physician must be to a reasonable degree of medical certainty or probability as to the statutory elements before a court may find that the clear and convincing standard [required to order involuntary treatment] has been met." In re MH 2007-001236, 220 Ariz. 160, 169, ¶ 29, 204 P.3d 418, 427 (App. 2008). Under this rule, "[i]f one physician's opinion is sufficient and the other physician's opinion is insufficient, a court should not be able to find the statutory requirements were proven by clear and convincing evidence because the statute specifically requires the opinions of the two examining physicians, both of whom performed evaluations." Id. at 170, ¶ 32, 204 P.3d at 428.
¶16 In this case, Dr. Alexander testified at Appellant's COT hearing based on her personal evaluation of Appellant and review of Appellant's medical history. The court also admitted Dr. Alexander's sworn affidavit in place of her continued direct testimony. Considered together, Dr. Alexander thereby testified "with a reasonable degree of medical certainty" that she would diagnose Appellant with psychotic disorder, not otherwise specified, and that Appellant's mental disorder caused her to be a danger to self and persistently or acutely disabled. Contrary to Appellant's assertion, Dr. Alexander unequivocally opined that Appellant posed a danger to self by describing her apparent suicide attempt and resulting hospitalization.
Appellant does not contest the use of Dr. Alexander's affidavit as "testimony" contemplated by A.R.S. § 36-539(B). We note that "[n]othing in the statute requires that the testimony be oral." Coconino Cnty. No. MH 1425, 176 Ariz. 525, 528, 862 P.2d 898, 901 (App. 1993), vacated on other grounds, 181 Ariz. 290, 889 P.2d 1088 (1995). And although the parties did not stipulate to admission of Dr. Alexander's affidavit, see A.R.S. § 36-539(B) (testimony requirement "may be satisfied by stipulating to the admission of the evaluating physicians' affidavits"), we find that the court could properly consider the information contained therein to satisfy the requirements of A.R.S. § 36-539(B) because Appellant did not object to its admission and she had an opportunity to cross-examine Dr. Alexander about its contents.
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¶17 Further, Dr. Alexander clearly testified concerning whether Appellant met the criteria for being persistently or acutely disabled. First, albeit stated as a form answer, Dr. Alexander opined that Appellant suffered from "a severe mental disorder that, if not treated, has a substantial probability of causing [her] to suffer or continue to suffer severe and abnormal mental, emotional, or physical harm that significantly impairs [her] judgment, reason, behavior, or capacity to recognize reality." Second, Dr. Alexander testified that Appellant was adamantly resistant to treatment recommendations; failed to recognize her dangerous behavior, her severe symptoms, and her need for treatment; and appeared incapable of making "a rational choice among the various treatment options" nor of "meaningfully engag[ing] in voluntary outpatient treatment." Third, having concluded that Appellant's condition was treatable with inpatient and outpatient treatment, Dr. Alexander specifically opined that Appellant "likely would benefit from stabilization in an inpatient setting and treatment with antipsychotic medication until such time as her judgment and reality testing have improved sufficiently to allow her to participate safely in outpatient treatment in the community." At the COT hearing, Dr. Alexander added that Appellant "would benefit from an outpatient court order" to ensure that she received appropriate treatment should she become more symptomatic after her scheduled discharge.
¶18 Even though Dr. Alexander never explicitly used the word "required" to describe Appellant's need for treatment, "there are no magic words which render the testimony to a 'reasonable degree of medical probability or certainty.'" MH 2007-001236, 220 Ariz. at 170 n.15, ¶ 30, 204 P.3d at 428 n.15. In fact, Dr. Alexander testified that Appellant had a concerning recent history of being uncooperative with treatment and that Appellant suffered from a severe mental disorder with substantial probability of causing her severe harm if left untreated. Viewed in the light most favorable to sustaining the court's order, Dr. Alexander thus testified that Appellant required mental health treatment. See In re Commitment of an Alleged Mentally Disordered Person, MH-1049-3-85, 147 Ariz. 313, 315, 709 P.2d 1372, 1374 (App. 1985) (holding that proposed patient's need for treatment and unwillingness to accept voluntary treatment sufficiently showed that treatment was required). To the extent Dr. Alexander's testimony may be interpreted as internally inconsistent, it was for the trial court to resolve such conflict in the exercise of its discretion. See Pima Cnty. Mental Health No. MH-2010-0047, 228 Ariz. 94, 98, ¶ 17, 263 P.3d 643, 647 (App. 2011) ("It was for the trial court," as "the trier of fact, to consider the evidence presented and weigh it based on the court's assessments of credibility and reliability, and to resolve any conflicts that might exist.").
¶19 Finally, Dr. Alexander's testimony did not fail to satisfy A.R.S. § 36-539(B) despite her statements that Appellant was not severely ill at the time of the COT hearing and had showed improvement since her evaluation a week before the hearing. In In re Mental Health Case No. MH 94-00592, 182 Ariz. 440, 444, 897 P.2d 742, 746 (App. 1995), we held that the petitioner is not required to "present evidence of current behavior to establish that [the patient suffers from a persistent or acute] disability."
Consideration of current behavior alone would be manifestly misleading. A patient may not display any current aberrant behavior because of intensive therapy, supervision, and medication and yet pose a danger of harm to [her]self because of inability to make treatment decisions if released from the therapeutically structured environment. . . . The mere fact that no aberrant behavior is occurring at the time of the hearing does not necessarily mean that no disability exists.Id. at 444-45, 897 P.2d at 746-47.
¶20 On this record, we conclude that Dr. Alexander's testimony was expressed with a reasonable degree of medical certainty and met the requirements of A.R.S. § 36-539(B). Credible evidence supports the court's findings and its order for involuntary treatment was not clearly erroneous.
CONCLUSION
¶21 For the foregoing reasons, we affirm.