           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          cn
In the Matter of the Detention of         )       No. 76813-1-1                             rnc,
                                          )                                                   -rt
D.F.,                                     )       DIVISION ONE
                                          )                                          -0
                                                                                             cnrno
                                                                                             =7›.
                                          )       UNPUBLISHED OPINION
                                          )                                          14 ?      5240
                      Appellant.          )       FILED: July 23, 2018              • cn
                                                                                      c.n
                                          )

        MANN, A.C.J. — D.F. appeals a trial court's order for involuntary treatment and

argues that the State failed to demonstrate that he was gravely disabled. Because the

State failed to prove that D.F. was unable to care for his own health and safety, or make

a rational decision regarding his treatment, we reverse.

                                          FACTS

        D.F. is a 58-year-old man who has long suffered with schizophrenia. At the time

of his commitment, D.F. was unemployed and living with his parents in Anacortes. D.F.

had been without mental health treatment for the past five years and was off

medication.

        On April 2, 2017, D.F.'s parents called the police, stating that D.F. was

"extremely delusional" and "verbally aggressive." The officer that arrived at the scene

reported that D.F. told him the government, specifically the DEA, had implanted a
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device into his head, that he had been a part of a government experiment, that the

government wanted him to kill himself, and that the government would not want him to

get an evaluation, or have the courts involved. The responding officer detained D.F.

and brought him to the Skagit Valley Hospital Emergency Department for an emergency

evaluation.

       At the request of the emergency room physician, D.F. was evaluated by the

hospital's designated mental health professional(DMHP). After interviewing D.F. and

his parents, the DMHP concluded that D.F. presented a likelihood of serious harm to

himself and others, and was gravely disabled. The DMHP filed a Petition for Initial

Detention under RCW 71.05.160. D.F. was detained for 72 hours of evaluation and

treatment at the Mental Health Center of Skagit Valley Hospital under the care of

treating physician Dr. Brian Waiblinger.

       On April 4, Dr. Waiblinger and the DMHP petitioned the court for 14 days of

involuntary treatment under RCW 71.05.240 alleging that D.F. was gravely disabled.

       A probable cause hearing was held on the petition on April 7. Dr. Waiblinger

testified on behalf of the State. D.F. testified on his own behalf. Dr. Waiblinger testified

that D.F. was gravely disabled because his mental functioning has deteriorated to a

more delusional and psychotic state. Dr. Waiblinger testified his purpose for requesting

involuntarily commitment was to monitor D.F.'s reaction to his new medication and to

ensure D.F. would be more stable before release. Dr. Waiblinger stated D.F. was

getting better each day and had nearly returned to his "baseline."

       In making the recommendation, Dr. Waiblinger substantially relied on his

impression that D.F.'s parents were reluctant to allow him to return home, although D.F.

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contested this claim. Dr. Waiblinger did acknowledge that D.F. had sufficient income to

rent his own apartment and seemed to have no problem meeting his own "hygiene,

care,[and] all of his essential human needs." Dr. Waiblinger was unwilling to speculate

whether D.F. could safely live on his own.

       When it was suggested that D.F. could continue his medication out of

commitment, Dr. Waiblinger explained that D.F. would be released 'against medical

advice'(AMA), as such he would be released without medication or a prescription.

However, Dr. Waiblinger repeatedly asserted that he believed D.F. would continue to

seek outpatient treatment if released, and that his prescription could be obtained from

an outside psychiatrist. When asked whether D.F.'s cognitive impairment would

"prevent him'from receiving such care as is essential for his health and safety at this

time," Dr. Weiblinger responded "No," because he believed D.F. would pursue

outpatient treatment.

       D.F. testified that he has psychosis, and that he plans to continue treatment,

stating that he would "do far worse without it." D.F. expressed the desire to continue

working with the doctor, outside of commitment.

       The trial court found, by a preponderance of the evidence, that D.F. suffers from

a mental disorder, schizophrenia, and that he is gravely disabled. The trial court

explained its ruling by stating, "I take what the doctor said, that was not disputed or

contradicted, that you manifested a severe deterioration and routine functioning

evidenced by a loss of cognitive control over your actions." The court ordered 3 days of

inpatient care with 90 days less restrictive alternative treatment. The trial court then



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entered a standard form of its findings, conclusions, and order identifying that D.F. was

gravely disabled.

       D.F. appeals.

                                        ANALYSIS

                                        Background

       "Involuntary commitment for mental disorders is a significant deprivation of liberty

which the State cannot accomplish without due process of law." Det. of LaBelle, 107

Wn.2d 196, 201, 728 P.2d 138(1986); Dunner v. McLaughlin, 100 Wn.2d 832, 676 P.2d

444 (1984). A court may order involuntary treatment of a mentally ill person if it finds

that as a result of the mental illness the person poses a risk of harm to themselves or

others. O'Connor v. Donaldson,422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396

(1975). Consistent with this standard, RCW 71.05.240(3)(a) permits a court to order

involuntary treatment if it finds "by a preponderance of the evidence that such person,

as the result of mental disorder or substance use disorder, presents a likelihood of

serious harm, or is gravely disabled." Born v. Thompson, 154 Wn.2d 749, 758, 117

P.3d 1098 (2005). RCW 71.05.020(22) defines "gravely disabled" as,

       a condition in which a person, as a result of a mental disorder, or as a
       result of the use of alcohol or other psychoactive chemicals:(a) Is in
       danger of serious physical harm resulting from a failure to provide for his
       or her essential human needs of health or safety; or (b) manifests severe
       deterioration in routine functioning evidenced by repeated and escalating
       loss of cognitive or volitional control over his or her actions and is not
       receiving such care as is essential for his or her health or safety;

       D.F. was found to be gravely disabled under RCW 71.05.020(22)(b). CP 16.

Unlike RCW 71.05.020(22)(a)—which requires the person to have decompensated to

the point that they are presently "in danger of serious physical harm"from their inability

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 to care for themselves—RCW 71.05.020(22)(b) represents a legislative attempt to

 permit "intervention before a mentally ill person's condition reaches crisis proportions,"

 as it "enables the State to provide the kind of continuous care and treatment that could

 break the cycle and restore the individual to satisfactory functioning." LaBelle, 107

 Wn.2d at 206.

         In LaBelle, our Supreme Court recognized that the broad commitment standard

 found in RCW 71.05.020(22)(b)1 could conflict with due process, as it presents "a

 danger that persons will be involuntarily committed under this standard solely because

 they are suffering from mental illness and may benefit from treatment." LaBelle, 107

. Wn.2d at 207. The court opined, lailthough it is clear that the State has a legitimate

 interest under its police and parens patriae powers in protecting the community from the

 dangerously mentally ill and in providing care to those who are unable to care for

 themselves, it is also clear that mental illness alone is not a constitutionally adequate

 basis for involuntary commitment." LaBelle, 107 Wn.2d at 201 (quoting O'Connor,422

 U.S. at 575.) As the United States Supreme Court stated in O'Connor,"a State cannot

 constitutionally confine without more a nondangerous individual who is capable of

 surviving safely in freedom by himself or with the help of willing and responsible family

 members or friends." 422 U.S. at 576.

         In consideration of this danger, the LaBelle court clarified several requirements

 that must be met before committing someone under RCW 71.05.020(22)(b).2 The court


         1 LaBelle cites to RCW 71.05.020(1)for its definition of "gravely disabled." This subsection has
 since been renumbered as RCW 71.05.020(22).
         2 D.F. argues that RCW 71.05.020(22)(b) is limited to persons who have been previously
 committed, after a finding that they presented a risk to themselves or others, who then begin to
 deteriorate after they are discharged. Although the LaBelle court acknowledge such a fact pattern as

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explained, when a State is proceeding under the "gravely disabled" standard, "it is

particularly important that the evidence provide a factual basis for concluding that an

individual 'manifests severe [mental] deterioration in routine functioning." LaBelle, 107

Wn.2d at 208. This evidence must include "recent proof of significant loss of cognitive

or volitional control," as well as "a factual basis for concluding that the individual is not

receiving or would not receive, if released, such care as is essential for his or her health

or safety." LaBelle, 107 Wn.2d at 208.

         Care and treatment of an individual's mental illness must be more than "preferred

or beneficial or even in his best interests," such care "must be shown to be essential to

an individual's health or safety and the evidence should indicate the harmful

consequences likely to follow if involuntary treatment is not ordered." LaBelle, 107

Wn.2d at 208. Once the State has proved the need for treatment, the State is then

required to show "the individual is unable, because of severe deterioration of mental

functioning, to make a rational decision with respect to his need for treatment." LaBelle,

107 Wn.2d at 208.

                                  D.F.'s Involuntary Commitment

         D.F. argues that the State failed to prove by a preponderance of evidence that he

met the statutory definition of gravely disabled under RCW 71.05.020(22)(b). We

agree.

         Where the trial court has weighed the evidence, appellate review of an

involuntary commitment order is limited to determining whether substantial evidence


being one of the policy considerations for the new standard, the court did not hold that prior commitment
was a prerequisite to involuntary commitment under subsection (b), and we decline to adopt such a
requirement.

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supports the findings and, if so, whether the findings in turn support the trial court's

conclusions of law and judgment. LaBelle, 107 Wn.2d at 209.

       While it is uncontested that D.F. has a mental illness, "a finding of'mental illness'

alone cannot justify a State's locking a person up against his will." O'Connor,422 U.S.

at 575. In this case, the State was required to demonstrate that D.F. was "unable,

because of severe deterioration of mental functioning, to make a rational decision with

respect to his need for treatment." LaBelle, 107 Wn.2d at 208. The State failed to do

SO.

       Dr. Weiblinger testified that he recommended continued treatment because it

was in D.F.'s best interest, and that he hoped D.F. would be more stable at the time of

release. But this evidence alone was insufficient to support an order of involuntary

commitment. Care and treatment of an individual's mental illness must be more than

"preferred or beneficial or even in his best interests." LaBelle, 107 Wn.2d at 208. Dr.

Weiblinger did not testify that continued treatment was essential to D.F.'s health and

safety, or that D.F. was unable to make a rational decision with respect to his need for

treatment. LaBelle, 107 Wn.2d at 208. Indeed, when asked expressly whether D.F.'s

impairment would "prevent him from receiving such care as is essential to his health

and safety at this time" Dr. Waiblinger testified "No. I honest—I think he would go, I

think he would go to treatment. I think he would go to outpatient."




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        Without evidence demonstrating that D.F. was unable to make a rational decision

with respect to his treatment, the State failed to meet its burden of proof and the trial

court's order of involuntary commitment must be reversed.3

        We reverse.




WE CONCUR:




         3 D.F. also challenges the sufficiency of the trial court's findings of fact. While the trial court used
a standardized form, the form contained sufficient findings to permit meaningful review including a finding
that the trial court found D.F. gravely disabled under the definition in RCW 71.05.020(22). See LaBelle,
107 Wn.2d at 219-20.

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