In Re: Mh 2022-006353 ( 2023 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE: MH2022-006353
No. 1 CA-MH 22-0092
FILED 5-9-2023
Appeal from the Superior Court in Maricopa County
No. MH2022-006353
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Joseph Branco
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Robert S. Shipman
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.
B A I L E Y, Judge:
¶1 Patient appeals the superior court’s order requiring him to
involuntarily undergo a combination of inpatient and outpatient mental
IN RE: MH 2022-006353
Decision of the Court
health treatment, arguing the court failed to strictly follow the applicable
statutes. For the reasons below, we affirm the order for inpatient treatment
but vacate the order for outpatient treatment.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
order. In re MH2011-000914, 229 Ariz. 312, 314, ¶ 8 (App. 2012).
¶3 Patient has a history of mental illness; he was previously
diagnosed with schizoaffective disorder and involuntarily hospitalized for
treatment. In April 2021, he was arrested on murder charges and is now
awaiting trial in the Lower Buckeye Jail. While in jail he received forced
injections of antipsychotic medication under a prior court order. In the
months before that order expired, jail behavioral health technicians
observed the Patient often responded to internal stimuli, expressed
delusional thoughts, spread feces in his cell, and was hostile toward jail
staff. He was placed on suicide watch and considered unable to function in
the general population of the jail. He refused oral medication and told
technicians that when his court-ordered treatment expired, he would refuse
all medication.
¶4 In August 2022, a psychiatrist petitioned for a court-ordered
evaluation of Patient, and the superior court issued a detention order for
evaluation and notice. Patient was transported to a medical center,
Valleywise, where he was examined by two psychiatrists, Dr.
Hadziahmetovic and Dr. Sood. After the evaluations, Patient was then
transported back to the Lower Buckeye Jail. Both doctors reported that
Patient suffers from schizoaffective disorder, signs of psychosis, and
refuses needed medications.
¶5 Dr. Hadziahmetovic then petitioned for court-ordered
treatment of Patient. The petition included both his and Dr. Sood’s signed
affidavits reporting their findings that Patient is “persistently and acutely
disabled” because of a mental disorder, would not accept voluntary
treatment, and required court-ordered treatment.
¶6 Patient moved to dismiss the petition, arguing that he could
not be treated at an inpatient facility and an appropriate outpatient
treatment plan could not issue because he would remain in jail throughout
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the court order.1 The superior court denied the motion, finding Patient’s
claims that he would remain in jail during the duration of the court order
speculative.
¶7 In September 2022, the superior court held a hearing on the
petition. The parties stipulated that Patient was brought to Valleywise “for
purposes of the evaluation, he was no[t] admitted on an inpatient basis at
that time,” and he would remain in jail because Valleywise did “not intend
to admit him” due to security concerns. The parties stipulated to the
admission of the affidavits of Dr. Hadziahmetovic and Dr. Sood and over
Patient’s objection, based on his motion to dismiss, the court admitted an
outpatient treatment plan. Three Lower Buckeye Jail behavioral health
technicians testified for the State as to their observations of Patient’s
behavior and symptoms. The medical director of the proposed outpatient
treatment provider for Patient, La Frontera, testified for Patient. He
explained that providers from La Frontera would not go to the jail to
administer treatment to Patient under the outpatient treatment plan.
¶8 The superior court found that the State had established by
clear and convincing evidence that “Patient is suffering from a mental
disorder, and as a result, is persistently or acutely disabled, in need of
treatment and is either unwilling or unable to accept voluntary treatment.”
The court ordered Patient to undergo combined inpatient and outpatient
treatment, finding this was the appropriate level of treatment.
¶9 Patient timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) section 36-546.01.
DISCUSSION
¶10 We review de novo the interpretation and application of
statutes. In re M.H. 2007-001236, 220 Ariz. 160, 165, ¶ 15 (App. 2008). “Our
task in statutory construction is to effectuate the text if it is clear and
unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19,
¶ 9 (2018). Because involuntary mental health treatment implicates
1 Patient also argued that the court needed to comply with Sell v. United
States, 539 U.S. 166, 180-81 (2003), before it could order forced medication
and he requested that if the court ordered outpatient treatment, it issue an
injunction preventing any jail provider from administering treatment. The
court rejected these arguments and Patient does not re-urge them on
appeal, meaning he has abandoned and waived them. See State v. Carver,
160 Ariz. 167, 175 (1989).
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significant liberty interests, “the statutory requirements must be strictly
construed and followed.” In re MH2012-002480, 232 Ariz. 421, 422, ¶ 5
(App. 2013) (citation omitted). If the statutory requirements are not strictly
followed, we must vacate the treatment order. See In re Maxwell, 146 Ariz.
27, 30 (App. 1985).
I. Inpatient Treatment Order
¶11 Patient argues the superior court’s order that he involuntarily
undergo inpatient treatment must be vacated because the court failed to
strictly comply with A.R.S. § 36-540. The State argues that Patient has not
sufficiently developed his argument and has thus waived it. But Patient
specifically argued that because he would not be treated in one of the
allowed inpatient facilities under A.R.S. § 36-540(A)(3), the court did not
strictly comply with the statute. He has sufficiently developed the
argument.
¶12 Under A.R.S. § 36-540(A), if the court finds “the proposed
patient, as a result of a mental disorder . . . has a persistent or acute disability
. . . and is in need of treatment, and is either unwilling or able to accept
voluntary treatment, the court shall order the patient to undergo” either
inpatient treatment, outpatient treatment or a combination of the two. If
the patient is to undergo inpatient treatment, it must be, as applicable here,
in “a mental health treatment agency,” or a private hospital if the hospital
agrees. A.R.S. § 36-540(A)(3). A “mental health treatment agency” is “the
state hospital or a health care agency that is licensed by the department” of
health services. A.R.S. § 36-501(28).
¶13 At the hearing the parties stipulated, and the superior court
accepted, that at the time the court ordered treatment, Patient would not be
admitted to Valleywise, an appropriate mental health treatment agency
under A.R.S. § 36-540(A)(3), but would remain at the Lower Buckeye Jail.
Patient claims that therefore “no evidence” demonstrated he would receive
inpatient treatment at an approved mental health treatment agency, and the
court improperly relied on “speculation” of future admission to an
appropriate facility when ordering Patient to undergo inpatient treatment.
¶14 True, at the time the court ordered inpatient treatment,
patient was to remain in the Lower Buckeye Jail, which is not a “mental
health treatment agency” under A.R.S. § 36-540(A)(3). But the superior
court did not order Patient to receive inpatient treatment in jail. It ordered
Patient to be treated “in a local mental health treatment agency.” Though
Valleywise would not admit Patient at the time of the court order based on
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security concerns, Valleywise may accept Patient if circumstances change,
or he could be admitted at a different facility.
¶15 Patient’s lack of immediate placement at the time of the
hearing did not prevent the court from ordering inpatient treatment
because upon finding a patient has a persistent or acute disability because
of a mental disorder, needs treatment, and will not voluntarily accept
treatment, the court must order some level of treatment. See A.R.S. § 36-
540(A) (“[T]he court shall order the patient to undergo one of the following
. . . .” (emphasis added)). Here, the court made the requisite findings to
order inpatient treatment, and Patient does not dispute these findings and
they are supported by the record. The court thus strictly followed A.R.S.
§ 36-540(A) and properly ordered inpatient treatment.
II. Outpatient Treatment Order
¶16 Patient also argues the superior court’s order that he
involuntarily undergo outpatient treatment must be vacated because the
outpatient treatment plan lacked the information required by A.R.S. § 36-
540.01(B).
¶17 The State claims Patient waived this argument because he
failed to raise it in superior court. In his motion to dismiss, Patient argued
the court could not order outpatient treatment due to the “lack of an
appropriate outpatient treatment plan.” Citing A.R.S. § 36-540.01(B), he
argued the plan was “not rooted in [] reality” because the provider, La
Frontera, would not treat Patient in the community and he would instead
be treated by jail providers. Though Patient did not specifically argue that
the outpatient treatment plan lacked the information required by A.R.S.
§ 36-540.01(B), he sufficiently challenged the plan’s validity under the
statute putting the issue before the superior court and avoiding waiver.
¶18 Section 36-540.01(B) requires an outpatient treatment order to
include a written treatment plan “prepared by staff familiar with the
patient’s case history and approved by the medical director” that includes:
(1) A statement of the patient’s requirements, if any, for
supervision, medication and assistance in obtaining basic
needs such as employment, food, clothing or shelter.
(2) The address of the residence where the patient is to live
and the name of the person in charge of the residence, if
any.
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(3) The name and address of any person, agency or
organization assigned to supervise an outpatient
treatment plan or care for the patient, and the extent of
authority of the person, agency or organization in carrying
out the terms of the plan.
(4) The conditions for continued outpatient treatment, which
may require periodic reporting, continuation of
medication and submission to testing, and may restrict
travel, consumption of spirituous liquor and drugs,
associations with others and incurrence of debts and
obligations or such other reasonable conditions as the
medical director may specify.
(5) Any other provisions that the medical director or the court
believes are necessary to protect the well-being of the
patient and the public.
¶19 The outpatient treatment plan provided by La Frontera
included the “conditions for continued outpatient treatment,” listing five
conditions that Patient needed to follow. See A.R.S. § 36-540.01(B)(4). But
the plan failed to meet any other requirement of A.R.S. § 36-540.01(B).
¶20 First, the plan failed to include a statement of Patient’s
requirements for medication. See A.R.S. § 36-540.01(B)(1). The phrase “if
any” does not render this requirement an “optional consideration[] for staff
and the medical director” as the State argues. The statute requires the plan
to include the patient’s medication requirements if he has any. A statement
need not be included only if the patient does not have medication
requirements. Here, Patient has medication requirements. Over the past
year, courts ordered he receive injections of antipsychotic medications.
And the petitions for court-ordered evaluation and treatment indicated that
he had a continued need for these medications. The plan was therefore
required to include a statement of these needs. Though the plan included
a statement that “[m]edications included in the ADHS SMI formulary”
were a service available to Patient, it did not address Patient’s medication
requirements.
¶21 Second, the plan failed to include the address where Patient
would live. See A.R.S. § 36-540.01(B)(2). The plan stated Patient was
recommended for “Independent Living-TBD.” This fails to sufficiently
state Patient’s address. It is true that if Patient is released from jail into the
community, Patient would not have a known address to list. And as the
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State correctly points out, the statute requires the plan to list the patient’s
address only if the patient has one. Where a patient does not have an
address because of a lack of housing, the plan need not include an address.
But here, Patient is housed in the Lower Buckeye Jail and the jail’s address
was listed as Patient’s address in the petition for evaluation in this case. At
the time the plan was entered, Patient was living in jail for the foreseeable
future. The jail address was thus the “address where the patient is to live”
and the outpatient treatment plan had to include it. See A.R.S. § 36-
540.01(B)(2).
¶22 Third, the plan failed to include the name and address of all
persons, agencies or organizations assigned to care for Patient. See A.R.S.
§ 36-540.01(B)(3). Though the plan listed La Frontera as the “person,
agency, or organization” assigned to implement the ordered treatment, La
Frontera’s letter of intent to treat Patient expressly contemplated that
Patient would be cared for by the Lower Buckeye Jail providers, stating La
Frontera would “collaborate with the jail prescribers” to share “essential
clinical information” and be “routinely involved” with the “jail providers
of care.” Thus, jail providers were to care for Patient, but the plan did not
include the names and addresses of such providers.
¶23 Because the outpatient treatment plan did not contain
statutorily required information, it did not strictly comply with A.R.S. § 36-
540.01(B), and the outpatient treatment order must be vacated. See Maxwell,
146 Ariz. at 30.
CONCLUSION
¶24 We vacate the outpatient treatment portion of the superior
court’s order for failure to strictly comply with A.R.S. § 36-540.01(B) but
affirm the inpatient treatment order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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