Opinion
2 CA-MH 2024-0002
09-04-2024
In Re Pima County Mental Health No. MH20220550224
Ann L. Bowerman, Pima County Mental Health Defender By Emily Palomino, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. MH20220550224 The Honorable Lori B. Jones, Judge Pro Tempore
Ann L. Bowerman, Pima County Mental Health Defender By Emily Palomino, Tucson Counsel for Appellant
Presiding Judge O'Neil authored the decision of the Court, in which Judge Vasquez and Vice Chief Judge Eppich concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 M.C. appeals from the trial court's order granting Pima County Adult Detention Complex's petition that she undergo court-ordered mental health treatment. She argues the court erred because one of the psychiatrists did not return after one failed attempt to conduct an examination as required by A.R.S. § 36-533(B) and did not meet with her to explain the advantages and disadvantages of accepting treatment. In filing no answering brief, the state has confessed error. We therefore reverse the court's order.
¶2 In support of the petition, Dr. Joshua Sonkiss provided an affidavit stating that he had examined M.C. and found her to be persistently or acutely disabled due to "[s]chizoaffective disorder, bipolar type." At a hearing in February 2024, Sonkiss testified that he had attempted to discuss the petition with M.C. and advantages and disadvantages to the mental health treatment. She declined, stating, "I prefer not to talk to you." Sonkiss then "terminated the interview."
¶3 M.C. argued that Sonkiss's review of her records and one unsuccessful attempt to evaluate her was "insufficient to order a civil commitment." At the conclusion of the hearing, the trial court found M.C. to be persistently or acutely disabled and unwilling to voluntarily participate in treatment. It ordered her to receive mental health treatment for one year. This appeal followed.
¶4 As noted above, M.C. argues on appeal that the trial court erred in ordering treatment because she was not examined in compliance with § 36-533(B) and because she was not informed of the advantages and disadvantages of accepting treatment. Because M.C. has presented debatable issues, we consider the lack of an answering brief from the state a confession of error. See Savord v. Morton, 235 Ariz. 256, ¶ 9 (App. 2014).
¶5 Involuntary treatment "strongly implicates a patient's liberty interests." In re Maricopa Cnty. Mental Health No. MH2015-003266 , 240 Ariz. 514, ¶ 7 (App. 2016). Thus, we strictly construe the statutory requirements for involuntary treatment and require strict adherence to those requirements. Id. Under § 36-533(B), a petition for court-ordered treatment must be accompanied by the affidavits of two physicians "who participated in the evaluation," based on the physician's "observations of the patient and study of information about the patient."
¶6 On this record, it is debatable whether Sonkiss's evaluation attempt and record review constitutes an "examination" compliant with § 36-533(B). Sonkiss's affidavit acknowledged that he did not complete an examination of M.C. Rather, he "terminated the interview" after M.C. said she did not want to speak to him.
¶7 Nonetheless, the examination requirement "may be excused if the patient refuses or other circumstances render compliance impracticable." Maricopa Cnty. No. MH2015-003266 , 240 Ariz. 514, ¶ 10. Evidence of impracticability must be clear and convincing. See In re Maricopa Cnty. Mental Health No. MH 94-00592, 182 Ariz. 440, 446 (App. 1995). At the evidentiary hearing, Sonkiss explained that he had attempted to complete his evaluation "[o]nly the one time." It is debatable whether M.C.'s single refusal to speak to Sonkiss is clear and convincing evidence that it was impracticable to examine her. See In re Maricopa Cnty. Mental Health No. MH 2007-001236, 220 Ariz. 160, ¶¶ 22-23 (App. 2008).
¶8 Because the state has confessed error and M.C. has raised debatable issues on appeal, we reverse the trial court's order that M.C. undergo court-ordered treatment.
We need not reach M.C.'s argument that the order must be reversed because she was not informed of the advantages and disadvantages of treatment.