                                                                            rILEtt
                                                                    COURT OF APPEALS DIV
                                                                     STATE OF WASHINGTON
                                                                     2010 OCT 22 MI 9: 39




  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

In the Matter of the Detention of         )       No. 77057-8-1
                                          )
C.V.                                      )
                                          )
                                          )       PUBLISHED OPINION
                                          )
                                          )       FILED: October 22, 2018
                                          )
       VERELLEN, J. — If a person, as a result of a mental disorder, "presents a

likelihood of serious harm, or is gravely disabled," the court shall order the person

involuntarily detained for treatment) A court may dismiss a meritorious petition for

involuntary commitment only if the involuntary treatment act requirements for

commitment "have been totally disregarded."2 The policy underlying this

heightened standard is that individuals with serious mental health issues requiring

involuntary commitment for treatment should receive timely and appropriate care

to safeguard the individuals themselves and the public at large.3

       A nonlicensed facility may provide treatment if it obtains a single bed

certification. The single bed certification must be specific to the patient receiving




       1 RCW 71.05.240(3)(a).
       2 RCW 71.05.010(2).

       3 RCW 71.05.010(1)(a).
No, 77057-8-1/2


treatment4 and must include a description of why the individual being committed

can receive appropriate mental health treatment at that facility.5 Evergreen

Hospital's reliance on an single bed certification application lacking such a

description was not a total disregard of the involuntary treatment act requirements.

       Accordingly, we affirm the trial court order imposing a 14-day commitment.

                                       FACTS

       On May 30, 2017, a King County designated mental health professional

petitioned the superior court for a 72-hour inpatient involuntary detention of C.V., a

65-year-old. The following day, the court granted the petition, and C.V. was sent

to Evergreen Hospital. Evergreen was not a certified evaluation and treatment

facility. On June 1,2017, another designated mental health professional applied

to the Department of Social and Health Services6 for a single bed certification for

Evergreen pursuant to RCW 71.05.745 and WAG 388-865-0526. The only

information specific to C.V. in the application was his name, Social Security

number, gender, birthdate, and legal status. Western State Hospital, acting for the

Department of Social and Health Services, granted the request.



       4 RCW 71.05.745(2).
       5 Former WAG 388-865-0526(2)(b)(iii)(2015), repealed by WASH.ST. REG.
18-14-034 (effective 7/1/18). Emergency replacement rules are "substantially the
same." WASH. ST. REG. 18-14-027 (effective 7/1/18). We refer to the regulation by
its former designation as its permanent replacement has not yet been adopted.
       6 At the time, the Department of Social and Health Services was
responsible for granting single bed certification applications. RCW 71.05.745.
Recent legislative changes to the involuntary treatment act now place
responsibility with the Washington State Health Care Authority. This change has
no bearing on our analysis.


                                          2
No. 77057-8-1/3


       On June 6, 2017, Evergreen petitioned the court to involuntarily detain C.V.

for an additional 14 days. C.V. moved to dismiss the petition and to be

immediately released. C.V. argued the court improperly granted the 72-hour

detention because Evergreen's single bed certification violated RCW 71.05.745

and WAC 388-865-0526. Although the court agreed the original single bed

certification approval was "facially invalid," it held that Evergreen did not "totally

disregard" requirements of the involuntary treatment act.7 As a result, the court

denied C.V.'s motion. Following an evidentiary hearing, the court approved

Evergreen's petition.

       C.V. appeals.

                                       ANALYSIS

       The parties agree this matter is not moot and is properly before us on

review.8

       The meaning of a statute is a question of law that we review de novo.8

When engaging in statutory interpretation, a court's purpose is "to determine and

give effect to the intent of the legislature.'"1° Legislative intent is derived, when


       7 Report of Proceedings(RP)(June 6, 2017) at 22-23.
       8 See In re Det. of M.K., 168 Wn. App. 621, 622, 629, 279 P.3d 897(2012)
("[B]ecause an involuntary commitment order has collateral consequences for
future commitment determinations," appeals after the expiration of the commitment
period are not moot); see also In re Det. of Swanson, 115 Wn.2d 21, 25, 804 P.2d
1 (1990)(holding that an expired involuntary detention may be considered on
appeal because "it involves issues of substantial and continuing public interest").
       9 State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

      10 State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724(2013)(quoting State
v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)).


                                            3
No. 77057-8-1/4


possible, "solely from the plain language enacted by the legislature, considering

the text of the provision in question, the context of the statute in which the

provision is found, related provisions, and the statutory scheme as a whole."11

       When interpreting agency regulations, we apply the same principles used to

interpret statutes.12 "If a regulation is unambiguous, intent can be determined from

the language alone, and we will not look beyond the plain meaning of the words of

the regulation."13 "However, the plain meaning of a regulation may also be

'discerned from all that the [I]egislature has said in the statute and related statutes

which disclose legislative intent about the provision in question."14

       Individuals detained for a 72-hour or 14-day period of involuntary treatment

may only be treated at a licensed or certified evaluation and treatment facility.15

When necessary, the Department of Social and Health Services may provide a

single bed certification to a nonlicensed facility that is "willing and able to provide

the person with timely and appropriate treatment."16

       At the time of C.V.'s involuntary detention, WAC 388-865-0526 set

additional requirements for single bed certification:




       11 Id.
       12Ctr. for Envtl. Law v. Wash. Dep't of Ecology, 196 Wn. App. 360, 380,
383 P.3d 608(2016), review denied, 187 Wn.2d 1021 (2017).
      13 Mader v. Health Care Auth., 149 Wn.2d 458, 473, 70 P.3d 931 (2003).

      14 Id. (quoting Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 12, 57
P.3d 1156 (2002)).
      15 RCW 71.05.020(19), .150(2)(a), .240(3)(a).

       16   RCW 71.05.745(1).


                                            4
No. 77057-8-1/5


              (2) A single bed certification may be issued to the facility for
       timely and appropriate mental health treatment when the following
       requirements are met in each instance where such certification is
       sought for an individual:

              (a)The facility that is the site of the proposed single bed
       certification confirms that it is willing and able to provide directly, or
       by direct arrangement with other public or private agencies, timely
       and appropriate mental health treatment to the consumer for whom
       the single bed certification is sought; and

            (b) The request for single bed certification describes why the
       consumer meets at least one of the following criteria:



               (iii) The consumer can receive appropriate mental health
       treatment in a hospital with a psychiatric unit, or a hospital that is
       willing and able to provide timely and appropriate mental health
       treatment, or a psychiatric hospital, and the single bed certification
       will apply only to that facility.(171

By the regulation's plain language, an applicant relying on section (2)(b)(iii) must

"describe why" the individual requiring treatment can receive "timely and

appropriate mental health treatment" at the hospital. The need for an

individualized explanation is consistent with other provisions.

       WAC 388-865-0526(3)(b)(i) requires that the facility receiving the single bed

certification develop "[a]n individualized mental health treatment plan." Similarly,

the authorizing statute requires that the certification "be specific to the patient

receiving treatment."18 Accordingly, the involuntary treatment act affords "[e]ach

person involuntarily detained. . . the right to adequate care and individualized




       17(Emphasis added.)

       18   RCW 71.05.745(2).


                                            5
No. 77057-8-1/6


treatment."19 In context, WAC 388-865-0526(2)(b) requires an individualized

description of why the facility requesting single bed certification can meet the

patient's individual medical needs.2°

       Here, the only information specific to C.V. in the application was his name,

Social Security number, gender, birthdate, and legal status. It also included a

preprinted statement citing the regulation and confirming that Evergreen was

"willing and able to provide directly, or by direct arrangement with other public or

private agencies, timely and appropriate mental health treatment to the [person]

for whom the single bed certification is sought."21 In addition, the form contained a

set of checkboxes. The designated mental health professional checked the box

stating, "The consumer can receive appropriate mental health treatment in. ..[a]

hospital that can provide timely and appropriate mental health treatment."22 The

form did not provide a space to describe why Evergreen could meet C.V.'s

individual needs, nor did the designated mental health professional include such a


       19  RCW 71.05.360(2)(emphasis added).
        29 The State argues RCW 71.05.745(2)"simply stands for the principle that
a hospital cannot seek blanket [single bed certification] coverage from [the
Department of Social and Health Services]for all the involuntarily detained
patients it may be treating." Resp't's Br. at 11-12. This argument is inconsistent
with the plain language of RCW 71.05.745(1). That provision exclusively uses
individualized language, such as "a person suffering from a mental disorder" and
"Who facility that is the proposed site of the single bed certification."
RCW 71.05.745(1)(emphasis added). Also, the entire section addresses
authorizing a single bed,for a single patient. The State's argument is inapposite
as the plain language in RCW 71.05.745(1) precludes mass single bed
certification applications.
       21 Clerk's Papers at 29.
       22 Id.




                                          6
No. 77057-8-1/7



description.23 In addition, the designated mental health professional did not attach

any of C.V.'s medical records that might have allowed an individualized

determination.

       Notably, the Department of Social and Health services received the

application at 3:43 p.m. and approved it at 3:45 p.m. The designated mental

health professional received the approved application form at 3:50 p.m.

       The trial court concluded the single bed certification application was "facially

invalid."24 We agree. The question is whether dismissal and release is the proper

remedy under the involuntary treatment act.

       The involuntary treatment act "impacts liberty interests and thus is strictly

construed."25 "Involuntary commitment for mental disorders constitutes a

significant deprivation of liberty that requires due process protections."26 In

addition, an individual detained for incapacity "'has a constitutional right to receive

such individual treatment as will give. . . a realistic opportunity to be cured or to

improve his or her mental condition.'"27




      23 During oral argument, the State advised that the single bed certification
request form has since been updated to include a box in which an applicant can
provide individualized descriptive information about the person requiring treatment.
       24   RP (June 6, 2017) at 23.
       25In re Det. of D.W. v. Dept. of Soc. & Health Svcs., 181 Wn.2d 201, 207,
332 P.3d 423(2014).
      26 In re Det. of C.W., 147 Wn.2d 259, 277, 53 P.3d 979(2002).

       27D.W., 181 Wn.2d at 208 (internal quotation marks omitted)(quoting
Ohlinqer v. Watson,625 F.2d 775, 778 (9th Cir. 1981)).


                                           7
No. 77057-8-1/8



       Dismissal of an involuntary treatment petition and release of the person

subject to the petition is not often the proper remedy because of the importance of

providing treatment to those requiring it. Dismissal is only appropriate when a

petition fails on its merits28 or when a person or entity seeking an involuntary

commitment29 totally disregards the involuntary treatment act requirements.39

Specifically, the legislature requires that a court "construing the requirements of"

the involuntary treatment act"must focus on the merits of the petition, except

where the requirements have been totally disregarded, as provided in In re C.W.,

147 Wn.2d 259, 281 (2002)."31

       RCW 71.05.240 governs probable cause hearings on 14-day involuntary

commitment petitions. RCW 71.05.240(3)(a) echoes a related provision,

RCW 71.05.230(4)(b), describing the required content for a properly filed

involuntary detention petition:


      28 See RCW 71.05.010(2)(courts should decide petitions "on their merits");
RCW 71.05.240(3)(a)(petitioner must prove need for 14-day commitment by a
"preponderance of the evidence").
       29 Both public and private entities may be involved in the involuntary
commitment process. See RCW 71.05.020(19)(defining "evaluation and
treatment facility" as "any facility which can provide directly, or by direct
arrangement with other public or private agencies, emergency evaluation and
treatment").
       3° RCW 71.05.010(2); see C.W., 147 Wn.2d at 283 ("[D]ismissal may be
appropriate in the few cases where [a petitioner]'totally disregarded the
requirements of the statute.")(emphasis added)(quoting Swanson, 115 Wn.2d at
31); see also RCW 71.05.153(6)("Dismissal of a commitment petition is not the
appropriate remedy for a violation of the timeliness requirements of this section
based on the intent of this chapter under RCW 71.05.010 except in the few cases
where the facility staff or designated mental health professional has totally
disregarded the requirements of the section.").
       31   RCW 71.05.010(2).


                                          8
No. 77057-8-1/9



      [I]f the court finds by a preponderance of the evidence that[a]
      person, as a result of a mental disorder .. . presents a likelihood of
      serious harm, or is gravely disabled, . .. the court shall order that
      such person be detained for involuntary treatment not to exceed
      fourteen days in a facility licensed or certified to provide treatment by
      the department.

       Although the involuntary treatment act must be strictly construed to protect

the fundamental liberty interests of the persons detained,32 our Supreme Court

developed the "total disregard" standard based on the preferred policy of "deciding

[involuntary commitment] cases on their merits."33 The concern underlying this

standard is that a person with mental health needs serious enough to require

involuntary treatment should not be released merely because some statutory

requirements have not been satisfied.34

       In the context of civil commitments, the phrase "totally disregarded"

originated in In re Detention of Swanson,35 where our Supreme Court considered

whether dismissal of an involuntary commitment petition was the appropriate

remedy for a violation of the requirement that a hearing on a petition for a 14-day

commitment be held within 72 hours of the start of detention.36 The patient did not



       32 Swanson, 115 Wn.2d    at 28.
           C.W., 181 Wn.2d. at 281 (citing In re Det. of G.V., 124 Wn.2d 288, 296,
877 P.2d 680(1994)).
       34 See RCW 71.05.010(2)("A presumption in favor of deciding petitions on
their merits furthers both public and private interests because the mental and
physical well-being of individuals as well as public safety may be implicated by the
decision to release an individual and discontinue his or her treatment?), G.V., 124
Wn.2d at 296(same).
        35 115 Wn.2d 21, 804 P.2d 1(1990).

       36   Id. at 22-24.


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No. 77057-8-1/10


dispute the merits of the petition and only moved to dismiss because his hearing

occurred between twenty minutes and two hours beyond the statutory deadline.37

Because of due process concerns, the court weighed whether to evaluate the

requirements under a standard of substantial compliance or of strict construction.38

The patient argued that strict construction required dismissa1.39 The court

concluded that a strict construction standard was correct for construing the

involuntary treatment act requirements.4° But it held dismissal was unwarranted

because the State had not "totally disregarded the requirements of the statute" in

the circumstances.41

       Similarly, In re Detention of C.W. explained that "courts [weighing dismissal]

should focus on the merits of the petition, the intent of the statute, and whether the

State 'totally disregarded the requirements of the statute.'"42 There, the trial court

dismissed six petitions for involuntary commitment because the hospital did not

conduct an initial evaluation of the patients within six hours of their detention.43 To

decide whether dismissal of the involuntary commitment petitions was warranted,

our Supreme Court considered the statutory provisions at issue, the intent behind


       37   Id. at 24-25.
       38   Id. at 25.
       39   Id. at 25.
       4° Id. at 28.
       41Id. at 31 (intent of the involuntary treatment act would be undermined if
dismissal could "turn on the vagaries of scheduling, especially in these
unpredictable and sensitive proceedings").
      42 147 Wn.2d 259, 281, 53 P.3d 979(2002)(quoting id.).

       43   Id. at 263.


                                          10
No. 77057-8-1/11


those provisions, the need to have a "safeguard against abuse," and the facts of

the instant case." In light of the statutory treatment goals, the court concluded

dismissal was inappropriate for mere violations of the six-hour requirement.46

Because the patients did not prove the hospital totally disregarded the statute,

dismissal was unwarranted.46

       In In re Detention of D.W., our Supreme Court upheld the dismissal of

14-day involuntary commitment petitions where single bed certifications had been

granted as "psychiatric boarding" of patients merely because there was a

generalized lack of room at certified facilities.47 The trial court also found the

patients in facilities with single bed certifications were not receiving appropriate

treatment or care for their mental illness.48 The Supreme Court recognized that

"[p]atients may not be warehoused without treatment because of lack of funds?"

       C.V. asks us to dismiss the petition for a 14-day commitment because

Evergreen's facially invalid single bed certification violated the precondition in

RCW 71.05.230(3) that the treating facility be certified. C.V. argues that dismissal

is warranted because a valid single bed certification is a fundamental requirement



       44   Id. at 281-84.
       45   Id. at 281-83.
       46   Id. at 284.
       47   181 Wn.2d 201, 211, 332 P.3d 423(2014).
       45   Id. at 206.
       49 Id. at 208. The legislature has since amended the involuntary treatment
act to allow single bed certifications when no room is available at a certified facility
and appropriate treatment and care can be provided with the single bed
certification. RCW 71.05.745(1).


                                           11
No. 77057-8-1/12


of the involuntary treatment act. Further, C.V. notes that proper individualized

descriptions of persons being detained are necessary to ensure that the

professionals approving single bed certifications have the information necessary to

exercise their professional judgment. Underlying these contentions is C.V.'s

"constitutional right to receive 'such individual treatment as will give [C.V.] a

realistic opportunity to be cured or to improve his or her mental condition."53

       The involuntary treatment act sets out procedural requirements for 14-day

commitment petitions in RCW 71.05.230. "A petition may only be filed" if all nine

"conditions" are met, including that "[t]he facility providing intensive treatment is

certified to provide such treatment by the department."51

       The procedural deficiency here can be can be compared with a claimant's

failure to follow the preconditions to a tort claim against the State. All tort claims

against the State "must be presented" to the office of risk management before they

can be filed.52 Dismissal is the proper remedy for a substantive claim that does

not comply with the procedural requirements of RCW 4.92.100 and

RCW 4.92.110.53 Dismissal of a civil commitment petitions is evaluated under a


       50   D.W., 181 Wn.2d at 208 (quoting Ohlinger, 625 F.2d at 778).
       51   RCW 71.05.230(3).
       52 RCW 4.92.100(1), .110.

       53 Hyde v. Univ. of Wash. Med. Ctr., 186 Wn. App. 926, 929, 347 P.3d 918
(2015); RCW 4.92.100,.110. Notably, courts must "liberally construe" these
procedural requirements "so that substantial compliance will be deemed
satisfactory." RCW 4.92.100(3). "Substantial compliance. . . means that the
'statute has been followed sufficiently so as to carry out the intent for which the
statute was adopted." Lee v. Metro Parks Tacoma, 183 Wn. App. 961, 967-68,
335 P.3d 1014(2014)(quoting Banner Realty v. Dep't of Revenue,48 Wn. App.
274, 278, 738 P.2d 279(1987)). Lee addressed tort claim filing preconditions


                                           12
No. 77057-8-1/13


different standard. Unlike the tort claim precondition, courts may dismiss an

involuntary commitment petition only when the statutory requirements are totally

disregarded.

       Although the single bed certification form used for C.V. violated involuntary

treatment act requirements, the violation does not rise to the level of total

disregard under these circumstances. As in C.W., Evergreen's conduct did not

violate C.V.'s constitutional liberty interests or undermine the involuntary treatment

act's purpose. Unlike D.W., C.V. was not denied any psychiatric or therapeutic

care for his mental illness.

       As the State acknowledges, detaining a person at an uncertified facility

without a single bed certification would constitute total disregard of the involuntary

treatment act. The circumstances here differ significantly.54 The trial court

carefully reviewed the detailed records of C.V.'s diagnosis, care, and treatment at

Evergreen when considering his motion to dismiss.55 A court with such detailed

information about an individual's specific treatment needs and a facility's specific




against municipalities pursuant to RCW 4.96.020, 183 Wn. App. at 967, but the
"substantial compliance" standard is identical to RCW 4.92.100(3).
       54 Of course, the State should also be alert to the risks presented by any
cavalier, uninformed, or nonprofessional issuances of single bed certifications.
       55 The trialcourt reviewed C.V.'s medical records and found that C.V.
received two "fairly lengthy" psychiatric evaluations while in Evergreen on a
72-hour involuntary commitment. RP (June 6, 2017) at 25. And the psychiatrist
relied on detailed medical notes to develop an individual treatment plan. Based on
this, and the hundreds of pages of medical records submitted in evidence, the
court concluded that the involuntary treatment act requirements had not been
totally disregarded.


                                          13
No. 77057-8-1/14



treatment efforts is well situated to analyze whether the involuntary treatment act

requirements were totally disregarded.

       It is problematic that the Department of Social and Health Services issued a

single bed certificate after a two-minute review of a "check the box" form. The

purpose of the descriptive requirements in RCW 71.05.745 and the related

regulation is to promote the exercise of meaningful, professional judgment by a

qualified individual.56 Individualized facts are required to accurately assess

whether an individual's specific treatment needs may be timely and appropriately

met by the particular facility applying for a single bed certificate.57

       But the trial court's review was consistent with the legislature's direction to

dismiss petitions for involuntary commitment only where there was a total

disregard of involuntary treatment act requirements.58 Judicial review of C.V.'s

treatment records adequately safeguarded C.V.'s interests.56




       56 See   WAC 388-865-0526(3)(providing timely and appropriate mental
health treatment at a facility operating under a single bed certification requires the
availability of professionals to consult, observe, evaluate, and assess the person).
       57 See RCW 71.05.230(1)(requiring "professional staff of the facility
providing evaluation services" to analyze the person's needs).
       58 RCW 71.05.010(2).

        59 See C.W., 147 Wn.2d at 283 ("[T]he purpose of the [involuntary treatment
act] as well as the presumption in favor of deciding cases on the merits tends to
weigh against dismissing all cases in which [the involuntary treatment act] is
violated. Furthermore, allowing dismissal in cases where the professional staff
totally disregarded the statutory requirements serves as a general safeguard
against abuse.").


                                           14
No. 77057-8-1/15


                                   CONCLUSION

       Evergreen and the Department of Social and Health Services disregarded

some requirements of the involuntary treatment act. But dismissal of a petition for

involuntary commitment of a person who presents a likelihood of serious harm or

is gravely disabled is unwarranted unless the petition fails on its merits or the

person or entities involved totally disregarded the requirements of the involuntary

treatment act. Under the circumstances here, no one totally disregarded the

requirements of the involuntary treatment act. Dismissal is not the proper remedy.

Accordingly, we affirm.




WE CONCUR:




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