                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           February 6, 2019
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    In the Matter of the Detention of:                                 No. 50572-0-II


    G.T.                                                        UNPUBLISHED OPINION



           MAXA, C.J. – GT appeals a trial court order involuntarily committing him to Western

State Hospital for up to 90 days for mental health treatment. Under RCW 71.05.280(4),1 a

person can be involuntarily committed for further treatment if the person is “gravely disabled.”

           We hold that substantial evidence supported the trial court’s findings that (1) GT was

gravely disabled as defined in former RCW 71.05.020(17)(b) (2016)2, and (2) no less restrictive

alternatives to commitment were available that were in GT’s best interests. However, we hold

that the trial court’s commitment order contains scrivener’s errors that improperly state the basis

for GT’s commitment and must be corrected. Accordingly, we affirm the trial court’s

commitment order but remand for the trial court to correct the scrivener’s errors in the order.

                                                FACTS

           In March 2017, GT was charged with third degree assault in Whatcom County. The

superior court dismissed the criminal charge without prejudice after finding GT incompetent and

ordered that he be committed to Western State Hospital for evaluation.


1
 RCW 71.05.280 was amended in 2018. LAWS OF 2018, ch. 291, § 15. Because those
amendments do not affect our analysis, we cite to the current statute.
2
  This section now has been renumbered as RCW 71.05.020(22), although the language relevant
to this appeal remains the same.
No. 50572-0-II


       Two mental health professionals sought GT’s involuntary commitment for 180 days

under RCW 71.05.280. The petition alleged that GT was “gravely disabled,” presented “a

substantial likelihood of repeating” acts similar to the March assault, and was “not ready for a

less restrictive placement” than treatment at the hospital. Clerk’s Papers (CP) at 11-12.

       In support of the petition, psychologist Johnathan Sharrette and physician Leslie Sziebert

reported that during GT’s hospitalization, he “demonstrated labile, grandiose behavior,

inappropriate laughter, and hyperverbal language. He demanded that the physician prescribe

methamphetamine.” CP at 15. GT showed “active signs of a mood disorder . . . [and] pressured,

rambling, tangential speech. His thoughts are disjointed and disorganized, making his reasoning

difficult to follow. [GT] also exhibited grandiosity and possible paranoia as well.” CP at 19.

The petitioners diagnosed GT with bipolar I disorder and substance use disorder.

       A hearing on the petition occurred in June 2017. The State clarified that it was now

seeking involuntary treatment only for a period of up to 90 days for “grave disability” under

RCW 71.05.280(4), and that it was abandoning its request for treatment for a period of up to 180

days based on dismissal of a felony charge under RCW 71.05.280(3).

       Dr. Sharrette testified that GT suffered from bipolar disorder. He stated that GT’s plans

for leaving the hospital varied tremendously and largely were incoherent. GT did not believe he

had a mental illness and likely would not take prescribed medications outside the hospital,

causing his symptoms to persist or worsen. GT also had demonstrated aggression toward others

who he blamed for his problems. Dr. Sharrette was concerned that “an amphetamine-like

substance” such as the drugs GT appeared to be seeking could “cause a breakout of more

mania.” Report of Proceedings (RP) at 14. Dr. Sharrette believed that further hospitalization




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No. 50572-0-II


and psychotropic medication would stabilize GT, lessen his manic symptoms and paranoia, and

keep him from acting out aggressively towards others or pursuing amphetamines or opiods.

       GT testified that if permitted to leave the hospital, he would return to Bellingham and

stay in the mobile home he had there, living on social security income in addition to earnings

from work as an electrician. GT also expressed that “I got to . . . get back on my meds. All these

doctors keep cutting me off because of this opioid scare.” RP at 21.

       GT disagreed with Dr. Sharrette’s bipolar diagnosis and countered “I have a good sharp

mind, and he has judged me wrong. And what I need, and which [the hospital] couldn’t give me

here, is something that I really needed for pain.” RP at 23. GT said the hospital was “giving me

Tylenol, when on the outside I’m getting . . . super-strong opioids, . . . synthetic heroin,

basically. And when they cut you off that stuff, you have to go look somewhere else.” RP at 23.

       The trial court entered an order for involuntary inpatient treatment. The court found that

GT was gravely disabled and that a less restrictive alternative treatment was not in the best

interests of GT or others. The trial court also denied GT’s motion for reconsideration. GT

appeals the 90 day commitment order.

                                            ANALYSIS

A.     INVOLUNTARY COMMITMENT

       GT argues that substantial evidence does not support the trial court’s factual findings that

(1) he was gravely disabled and (2) no less restrictive alternative to commitment would be in his

best interests. We disagree.




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No. 50572-0-II


       1.    Legal Principles

       The State sought GT’s involuntary treatment for 90 days under RCW 71.05.280(4),

which provides that at the expiration of a 14-day period of intensive treatment a person may be

confined for further treatment pursuant to RCW 71.05.3203 if that person is “gravely disabled.”

       Former RCW 71.05.020(17)(b) states that a person is gravely disabled if, because of a

mental disorder, he or she “[1] manifests severe deterioration in routine functioning evidenced by

repeated and escalating loss of cognitive or volitional control over his or her actions and [2] is

not receiving such care as is essential for his or her health or safety.” This definition has two

separate requirements: a severe deterioration in routine functioning and not receiving essential

care. In re LaBelle, 107 Wn.2d 196, 205, 728 P.2d 138 (1986).

       Former RCW 71.05.020(17)(b) is designed permit the State to “treat involuntarily those

discharged patients who, after a period of time in the community, drop out of therapy or stop

taking their prescribed medication and exhibit ‘rapid deterioration in their ability to function

independently.’ ” Id. at 206 (quoting Durham & LaFond, The Empirical Consequences and

Policy Implications of Broadening the Statutory Criteria for Civil Commitment, 3 Yale L. &

Pol’y Rev. 395, 410 (1985)). However, people cannot be involuntarily committed “solely

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

Wn.2d at 207.

       Regarding the first requirement of former RCW 71.05.020(17)(b), the State must provide

recent proof of “significant” loss of cognitive or volitional control. LaBelle at 208. Regarding

subsection (b)’s second requirement,




3
 RCW 71.05.320 was amended in 2018, but we will not use “former” in relation to this statute
because the amendment was minor and does not affect any substantive provisions.


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No. 50572-0-II


       the evidence must reveal 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. It is not enough to show that care and treatment of an individual’s
       mental illness would be preferred or beneficial or even in his best interests. To
       justify commitment, 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.

Id. The person must be “unable, because of severe deterioration of mental functioning, to make

a rational decision with respect to his need for treatment.” Id.

       The State has the burden of proving that a person is gravely disabled by clear, cogent, and

convincing evidence. Morris v. Blaker, 118 Wn.2d 133, 137, 821 P.2d 482 (1992). This

standard means that it must be highly probable that the person is gravely disabled. LaBelle, 107

Wn.2d at 209. On appeal, we “will not disturb the trial court’s findings of ‘grave disability’ if

supported by substantial evidence which the lower court could reasonably have found to be clear,

cogent and convincing.” Id.

       2.   Finding that GT was Gravely Disabled

       GT argues that the State failed to prove both that his behavior demonstrated “repeated

and escalating loss of cognitive or volitional control” and that such behavior would prevent him

from receiving “such care as is essential for his . . . health or safety.” Former RCW

71.05.020(17)(b). We disagree.4

            a.   Loss of Cognitive or Volitional Control

       GT argues that because this hospitalization was his first mental health contact since 2005,

the State failed to provide sufficient evidence to find repeated and escalating loss of cognitive or



4
 GT initially asserts that the issues in his appeal are not moot even though the term of his
commitment has passed. The State acknowledges that GT’s appeal of the involuntary
commitment order based on the gravely disabled standard is not moot because an involuntary
commitment order may have adverse consequences on future involuntary commitment
determinations. In re Det. of M.K., 168 Wn. App. 621, 629, 279 P.3d 897 (2012).


                                                 5
No. 50572-0-II


volitional control. He argues that the situation that lead to his most recent commitment was not

“repeated” but a single, continuous situation.

       LaBelle does not expressly hold that repeated hospitalizations are necessary for a finding

of “repeated and escalating loss of cognitive or volitional control” as GT contends. Instead, the

State must provide “a factual basis for concluding that an individual ‘manifests severe [mental]

deterioration in routine functioning,’ ” including “recent proof of significant loss of cognitive or

volitional control.” LaBelle, 107 Wn.2d at 208 (alternation in original).

       Here, the State presented substantial evidence of GT’s severe deterioration in routine

functioning, demonstrated by repeated and escalating loss of volitional and cognitive control,

during his stay for evaluation in the hospital. GT exhibited intrusiveness, aggression,

grandiosity, paranoia, “pressured, rambling, tangential speech,” “impaired reasoning skills,”

lability, and an “inability to remain on topic for more than a few minutes at a time.” CP at 16-

19. He demanded a prescription for methamphetamine. He had to be removed from group

therapy – where he was tangential, antagonistic towards others, and used inappropriate and

derogatory language – because of his inability to control his behavior.

       When evaluated by Dr. Sharrette, GT was unable to remain on topic for more than a few

minutes at one time, or to remain seated without getting up to walk around the room.

Concluding that GT showed “active signs of a mood disorder,” Dr. Sharrette reasoned that “[a]s

he has reportedly been incarcerated for several months at this point, [GT’s symptoms] are not

likely to be the direct results of substance intoxication or withdrawal.” CP at 19.

       GT also was unable to formulate a coherent or consistent plan for how he would live if

released from the hospital, proposing at various times to go to live in Patagonia or alternatively

in Canada. Although uncertainty of living arrangements by itself does not justify continued




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No. 50572-0-II


commitment, where the individual’s unsettled plans “are not the result of a choice of lifestyle but

rather a result of his deteriorated condition,” the court may properly consider this evidence to

support a finding of “gravely disabled.” LaBelle, 107 Wn.2d at 210. Here, the State presented

evidence that GT apparently was unable to formulate a lucid, reasonable, or fixed plan for how

or where he would live if released because his untreated symptoms of bipolar disorder prevented

him from doing so.

       GT testified at the hearing that if released he would live in his mobile home on property

he owns in Bellingham, supporting himself with social security income, earnings as an

electrician, and eventually work as a commercial fisherman. But an individual’s ability to meet

his or her basic needs does not necessarily mean that the individual can function safely or

independently in the community. See LaBelle, 107 Wn.2d at 213. Even if GT were able to

provide for his basic needs, without treatment or medication for bipolar disorder, the evidence

suggests that his condition would devolve such that he would again exhibit the symptoms that

resulted in his commitment.

            b.    Care Essential for Health or Safety

       GT provides no meaningful argument regarding the second requirement of former RCW

71. 05.020(17)(b). He merely states without discussion that, although there was no question that

he needed mental health treatment, the State failed to prove that he was incapable of making a

rational choice about his own need for treatment.

       The State presented substantial evidence that GT would not receive essential care for his

health and safety if released from the hospital. GT had been diagnosed with bipolar disorder and

substance use disorder. Dr. Sharrette testified at the hearing that GT had “stated he doesn’t have

a mental illness and wouldn’t take the medications once he leaves [the hospital].” RP at 12. Dr.




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No. 50572-0-II


Sharrette was concerned about GT’s pursuit of “other substances such as methamphetamine,

which he asked for a prescription for while he was [hospitalized].” RP at 12. Dr. Sharrette

believed that GT’s single-minded pursuit of pain medications would “likely further impair his

already impaired ability to make rational decisions regarding his care and safety,” such as

addressing a swollen leg that hospital staff observed while GT was under evaluation, which GT

mistakenly believed was muscle growth. CP at 18, 20.

       GT testified that he did not believe he had bipolar disorder or that he needed additional

mental health treatment. Rather than seeking treatment or medication for mental illness if

released, GT’s plan was to acquire “super-strong opioids, you know, synthetic heroin, basically.”

RP at 23. He wished to do this despite the fact that several doctors in Bellingham had advised

him they would no longer provide him with opioids because they were concerned he was abusing

pain medication.

       In Labelle, the Supreme Court held the appellant’s inability to understand his need for

treatment and the likelihood he would not, if released, take the medication necessary to stabilize

his mental deterioration tended to show that hospital treatment was essential to his health and

safety. 107 Wn.2d at 213. In In re Detention of R.H., this court affirmed the trial court’s finding

of grave disability where the appellant was unable on his own to obtain medical treatment

sufficient to stabilize his mental condition unless he was involuntarily hospitalized. 178 Wn.

App. 941, 947, 316 P.3d 535 (2014).

       Here, the evidence showed that GT had a lack of understanding about his need for

psychotropic medication, telling hospital providers that he would not take this medication if

released and claiming not to have a mental illness.




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No. 50572-0-II


              c.   Substantial Evidence

        We hold that the State presented substantial evidence that the trial court reasonably could

have found to be clear, cogent and convincing to support the trial court’s finding under former

RCW 71.05.020(17)(b) that GT was gravely disabled because he (1) demonstrated a “repeated

and escalating loss of cognitive or volitional control” and (2) would not receive “care as is

essential to his . . . health or safety” if released.

        3.    Less Restrictive Treatment

        GT argues that the State did not make a showing that no less restrictive alternative to

involuntary commitment would be in his best interests. We disagree.

        RCW 71.05.320(1) provides that, if the trial court finds a person to be gravely disabled, it

also must determine “that the best interests of the person or others will not be served by a less

restrictive treatment which is an alternative to detention” before ordering involuntary

commitment. The statute empowers the trial court “to determine the best interests of the

individual and in so doing, to consider less restrictive treatment.” In re Det. of J.S., 124 Wn.2d

689, 699, 880 P.2d 976 (1994). The State has the burden of proving that a less restrictive

alternative is not in the best interests of the person to be committed. In re Det. of T.A.H.-L., 123

Wn. App. 172, 186, 97 P.3d 767 (2004).

        However, although “RCW 71.05 guarantees that less restrictive treatment for

involuntarily detained individuals will be considered, . . . it does not expressly grant them a

[statutory] right to less restrictive treatment.” J.S., 124 Wn.2d at 701 (emphasis added). Further,

a person is not entitled to treatment in a less restrictive setting when continued treatment is

“amply supported by professional judgment.” Id.




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No. 50572-0-II


        Here, the trial court found that less restrictive alternative treatment was not in GT’s best

interests. At the commitment hearing, Dr. Sharrette testified that GT could not be in a less

restrictive environment than a hospital in favor of “something that’s still supportive” because

“[a]t this point in time, he still has active symptoms of mental illness including lack of

organization, the mania, inability to control his actions and behavior . . . and inability to focus.”

RP at 13-14. GT had also demonstrated “symptoms of a little bit of paranoia, blaming others for

his problems . . . [and] aggression, . . . stating that it’s all a certain neighbor’s fault and [he has]

to get even with him or [has ] to hurt him.” RP at 11.

        When asked whether he believed these symptoms would resolve with further

hospitalization and medication, Dr. Sharrette replied “[y]es. . . In the past, he had been stabilized,

at least in 2005. . . I think it goes to reason that it could happen again (inaudible) same

medication.” RP at 14. Dr. Sharrette also hoped that further hospitalization would increase GT’s

“ability to hold a conversation . . . without becoming aggressive, without threatening other

people.” RP at 13.

        Dr. Sharrette also expressed a concern that if GT left the controlled environment of the

hospital, he would stop taking his psychotropic medications and instead seek out opioids and

amphetamines, which would worsen his manic symptoms. GT confirmed this concern during his

testimony at the hearing by stating, “[the hospital is] giving me Tylenol, when on the outside I’m

getting . . . super-strong opioids, . . . synthetic heroin, basically. And when they cut you off that

stuff, you have to go look somewhere else. And so it’s not about . . . psych meds.” RP at 23.

        GT contends that the trial court did not adequately discuss less restrictive alternatives to

commitment because outpatient and check-in release alternatives were not explicitly discussed at

the commitment hearing. However, RCW 71.05.320(1) does not require that specific




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No. 50572-0-II


alternatives to inpatient treatment be considered as part of the less restrictive treatment analysis,

but leaves this consideration within the trial court’s discretion. Moreover, given GT’s explicit

illegal-drug-seeking behavior, denial of his mental illness, and displays of aggression towards

others, it is unlikely that the less restrictive alternatives he presents on appeal would have been in

his best interests or those of others.

        We hold that the State provided substantial evidence to support the trial court’s finding

that no less restrictive alternative to commitment would be in GT’s best interests.

        4.   Summary

        We hold that the State presented substantial evidence to support the trial court’s findings

that GT was gravely disabled and that no less restrictive alternative to commitment would be in

GT’s best interests. Accordingly, we affirm the trial court’s involuntary commitment order.5

B.      SCRIVENER’S ERRORS

        GT argues, and the State concedes, that the commitment order contains certain

scrivener’s errors stating a basis for GT’s commitment under RCW 71.05.280(3), which must be

corrected. We agree.

        RCW 71.05.280(3) provides that a person may be committed for further treatment if that

person “has been determined to be incompetent and [felony] criminal charges have been

dismissed . . . and as a result of a mental disorder, presents a substantial likelihood of repeating

similar acts.” Here, the order of commitment contains a finding that GT “was determined to be

incompetent and felony charges were dismissed,” as well as the legal conclusion that GT “as a



5
 GT includes the trial court’s denial of his motion for reconsideration under the “Assignments of
Error” heading in his brief as well as under the “Questions Presented” heading. But he does not
explain this claim or present any argument on it. Therefore, we decline to consider this
argument. RAP 10.3(a)(6); Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474,
486, 254 P.3d 835 (2011).


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No. 50572-0-II


result of a mental disorder . . . presents/continues to present a substantial likelihood of repeating

acts similar to the charged criminal behavior.” CP at 24, 25-26.

        Although the State initially pursued GT’s commitment on this basis as well as on grave

disability under RCW 71.05.280(4), the State subsequently dropped the request for commitment

based on the dismissed felony charge and proceeded only under the gravely disabled standard.

The State presented no evidence at the hearing of GT’s dismissed felony charges and made no

argument that GT should be committed because a mental disorder made it substantially likely he

would repeat criminal acts.

        Accordingly, we hold that the language of the commitment order suggesting a basis for

GT’s commitment under RCW 71.05.280(3) is a scrivener’s error that must be corrected on

remand.

                                          CONCLUSION

        We affirm the civil commitment order, but we remand for the trial court to correct the

scrivener’s errors identified above.

        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 in accordance with RCW

2.06.040, it is so ordered.



                                                       MAXA, C.J.
 We concur:



 LEE, J.



 MELNICK, J.



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