                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


      IN RE PIMA COUNTY MENTAL HEALTH NO. MH20130801

                      No. 2 CA-MH 2014-0006
                        Filed April 24, 2015

         Appeal from the Superior Court in Pima County
                       No. MH20130801
       The Honorable Peter W. Hochuli, Judge Pro Tempore

                       ORDER VACATED


                            COUNSEL

Mental Health Defender’s Office, Tucson
By Sarah Medley
Counsel for Appellant

Community Partnership of Southern Arizona, Tucson
By Ryan J. Thomsen
Counsel for Appellee


                            OPINION

Judge Howard authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Vásquez concurred.


H O W A R D, Judge:

¶1          Appellant S.A. challenges the trial court’s signed
minute entry granting a petition for continued court-ordered mental
health treatment, filed by the Community Partnership of Southern
Arizona (CPSA) pursuant to A.R.S. § 36-543(F). He argues the trial
   IN RE PIMA COUNTY MENTAL HEALTH NO. MH 20130801
                  Opinion of the Court

court’s order should be vacated because the psychiatric examination
performed by Dr. Robin Ross did not comply with statutory
requirements for continuation of court-ordered treatment, as set
forth in § 36-543(D) and (E), and because CPSA failed to establish, by
clear and convincing evidence, that he has a “[p]ersistent or acute
disability” as defined in A.R.S. § 36-501(31). For the following
reasons, we vacate the court’s order.

                             Background

¶2          The underlying facts are undisputed. At all times
relevant to these proceedings, S.A. was incarcerated in the Pima
County Adult Detention Center (PCADC). In October 2013, a
PCADC employee applied for an involuntary evaluation of S.A.
pursuant to A.R.S. § 36-520, alleging in the application that S.A. had
not been taking care of his personal hygiene, had smeared feces on
himself and the wall of his cell, had been in a physical altercation
while in custody, and had exhibited other aggressive and
threatening behavior necessitating his removal from the PCADC
general population. The applicant further alleged that S.A. had been
uncooperative with PCADC staff, was in denial about his mental
health problems, refused to speak with PCADC clinicians, and
refused medications.

¶3           The trial court ordered an evaluation, and two PCADC
psychiatrists reported that S.A. had refused to take prescribed
psychiatric medication and had been uncooperative when they
attempted to evaluate him, telling one of the psychiatrists, “I refuse
to talk with you due to the crimes committed against me.” The chief
psychiatrist for PCADC filed a petition for court-ordered treatment
pursuant to A.R.S. §§ 36-531(B), 36-533. Appointed counsel moved
for a hearing on the petition, but S.A. refused to participate.

¶4           After finding S.A. had knowingly, voluntarily, and
intelligently waived his presence, the court proceeded in S.A.’s
absence. The court then granted the petition, finding S.A. was, as a
result of a mental disorder, persistently or acutely disabled, a danger
to others, and in need of psychiatric treatment. The court entered an
order authorizing his involuntary mental health treatment, effective
for one year.


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¶5          Pursuant to the trial court’s order, S.A. was enrolled for
services with CPSA and assigned to Cope Community Services
(COPE), an outpatient provider, even though he remained
incarcerated. 1 In September 2014, Ross, COPE’s medical director,
conducted an annual review, as required by § 36-543(D), “to
determine whether the continuation of [S.A.’s] court-ordered
treatment [was] appropriate.” Pursuant to the same statute, she
then appointed herself “to carry out a psychiatric examination of
[S.A.].” Id. In accordance with § 36-543(F), the results of her
psychiatric examination were filed with CPSA’s petition seeking
continuation of S.A.’s court-ordered treatment.

¶6           In the report of her psychiatric examination, Ross wrote
that, because S.A. had “been incarcerated since the time of his court
ordered treatment,” all of his “appointments” had been “completed
by chart review and reports by the jail psychiatrist,” and he had
“never been seen by a C[OPE] psychiatrist.” She thus explained that
S.A.’s “rollover appointment” “was completed per chart review due
to [his] being incarcerated.” Ross opined that S.A. remained
persistently or acutely disabled and in need of court-ordered
treatment because he “ha[d] a history of not taking his prescribed
psychiatric medications when he is not ordered by the courts to do
so.” She also concluded he lacked insight into his mental illness
because “he wants off of all of his medications.”

¶7         At the hearing that followed, S.A., through counsel,
moved to dismiss the petition, arguing Ross’s psychiatric
examination was legally insufficient under § 36-543(D) and (E)
because she had never had personal contact with S.A. or an

      1In its answering brief, CPSA describes itself as the “Regional
Behavioral Health Authority for Pima County,” under contract with
the Arizona Department of Health Services “to administer the
publicly-funded behavioral health care system in Pima County.” It
further explains that COPE “is a Comprehensive Service Provider
(CSP) under contract with CPSA to provide services to CPSA-
enrolled members” like S.A., and that “CPSA provides legal
representation to its CSPs such as COPE” in matters related to CPSA
members who are receiving court-ordered treatment.


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opportunity to talk with him about his medication or to ask whether
he would agree to voluntary treatment. The trial court denied the
motion and received testimony on the petition from Ross and S.A.

¶8            Ross explained that “all information” she has about
S.A.’s mental health treatment at PCADC “is [obtained] through”
progress notes prepared by a COPE court liaison, whose notes, in
turn, are derived from “talking directly to [S.A.] and from talking to
the clinical staff at the jail.” Based on the court liaison’s notes, Ross
said S.A. had “maintained well” on a long-acting, injectable,
anti-psychotic medication he receives every two weeks. She also
stated that, although the first injection was administered forcibly,
S.A. had since submitted to the injections. According to Ross,
PCADC clinical staff told COPE’s court liaison that S.A. had “been
willing to take his injection” but “does not want to take the
medication and has limited insight into [his] mental illness.” But
Ross could not answer whether PCADC clinical staff otherwise had
been having difficulty engaging S.A. in treatment, because she had
“not read anything about” that issue in the court liaison’s progress
notes.

¶9             When asked the basis for her recommendation that
court-ordered treatment be continued, Ross stated that “what was
most notable” was S.A.’s “presentation prior to starting medication.”
She said she did not know his diagnosis, but he was “being treated
. . . for a psychotic disorder . . . [for] symptoms that are consistent
with psychosis [and] that cleared upon using an antipsychotic.” She
testified there was a “substantial probability” S.A. would “suffer
severe and abnormal mental or physical or emotional harm” without
treatment, noting that he had “display[ed] . . . pretty significant
psychotic symptoms” before treatment began.

¶10          S.A. testified that he believed his pre-treatment
behavior had been caused by his “trying to get comfortable with
[his] environment” at PCADC. He stated, “I was angry and I was
scared so I was lashing out at some point.” He said the medication
had caused him “[d]ozens of side effects like cold sweats, the shakes,
lack of sleep, [and] lack of motivation.” He confirmed that he does
not believe he has a mental illness; that he has consistently said,
since involuntary treatment was ordered, that he did not want to

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take the prescribed medications; that he was submitting to the
injections because of the court’s order; and that, if the trial court did
not order continued, involuntary treatment, he would stop taking
the medication.

¶11          At the close of the hearing, the trial court granted
CPSA’s petition, finding, by clear and convincing evidence, that S.A.
“remain[ed], as a result of a mental disorder persistently or acutely
disabled and in need of further court-ordered mental health
treatment.” The court further found that, although S.A. “at times
may be able and willing to comply with treatment on a voluntar[y]
basis, there are clearly periodic episodes wherein [he] is unable or
unwilling to comply with treatment on a voluntar[y] basis.” This
appeal followed.

                              Discussion

¶12         S.A. first argues the trial court erred in denying his
motion to dismiss the petition for continued treatment prior to the
hearing.    He asserts that CPSA had failed to comply with
§ 36-543(D) and (E) and that those provisions “require a face-to-face
examination by the appointed psychiatrist.” In the alternative, he
argues the court erred in finding clear and convincing evidence that
the advantages, disadvantages, and alternatives to treatment had
been explained to him, as required to support a determination that
he remained “persistently or acutely disabled.”

¶13           “Because a person’s involuntary commitment ‘may
result in a serious deprivation of liberty,’ strict compliance with the
applicable statutes is required.” In re Pima Cnty. Mental Health No.
MH-2010-0047, 228 Ariz. 94, ¶ 7, 263 P.3d 643, 645 (App. 2011),
quoting In re Coconino Cnty. Mental Health No. MH 1425, 181 Ariz.
290, 293, 889 P.2d 1088, 1091 (1995). When statutory requirements
are not strictly met, we are required to vacate an involuntary
treatment order. In re Pinal Cnty. Mental Health No. MH-201000076,
226 Ariz. 131, ¶ 5, 244 P.3d 568, 569 (App. 2010). We address S.A.’s
arguments in turn.




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Motion to Dismiss

¶14           On appeal, we will review “any intermediate orders
involving the merits of the action.” A.R.S. § 12-2102(A). Accordingly,
“[a]ppeal after entry of judgment typically is the proper method to
challenge the denial of a motion to dismiss.” Sanchez v. Coxon, 175
Ariz. 93, 94, 854 P.2d 126, 127 (1993); see Pima Cnty. No. MH-2010-0047,
228 Ariz. 94, ¶¶ 5, 7, 263 P.3d at 644-45 (reviewing denial of motion
to dismiss on appeal after final judgment). “Although we generally
review [a] trial court’s denial of a motion to dismiss for an abuse of
discretion,” we review de novo an issue of statutory interpretation.
Edonna v. Heckman, 227 Ariz. 108, ¶ 8, 253 P.3d 627, 628 (App. 2011).

¶15            A trial court may order involuntary mental health
treatment only upon finding, by clear and convincing evidence,
“that the proposed patient, as a result of mental disorder, is a danger
to self, is a danger to others, has a persistent or acute disability or a
grave disability and [is] in need of treatment, and is either unwilling
or unable to accept voluntary treatment.” A.R.S. § 36-540(A). When
a court orders involuntary mental health treatment through an
“outpatient” program, as the court did here in October 2013, the
duration of the order “shall not exceed three hundred sixty-five
days.” § 36-540(D); see also A.R.S. § 36-542(A) (patient in court-
ordered treatment discharged at expiration of order unless patent
accepts treatment voluntarily or “new petition is filed”).

¶16          Pursuant to § 36-543(D), within ninety days before a
treatment order expires, the medical director of the supervising
treatment agency “shall conduct an annual review . . . to determine
whether the continuation of court-ordered treatment is appropriate.”
If, after annual review of “the mental health treatment and clinical
records contained in the patient’s treatment file,” the medical
director believes continuation of court-ordered treatment is
appropriate, he or she “shall appoint one or more psychiatrists to
carry out a psychiatric examination of the patient.” Id.

¶17          A psychiatrist appointed to participate in such an
examination “must consider, along with all other evidence, the
patient’s history before and during the current period of court-
ordered treatment, the patient’s compliance with recommended


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treatment[,] and any other evidence relevant to the patient’s ability
and willingness to follow recommended treatment with or without a
court order.” § 36-543(E). An examining psychiatrist must then
provide, in a report to the medical director, “opinions as to whether
the patient continues to have a grave disability or a persistent or
acute disability as the result of a mental disorder” and is “in need of
continued court-ordered treatment.” Id.

¶18          After completion of this process, the medical director
may file an application for continued court-ordered treatment “and
shall file simultaneously with the application any psychiatric
examination conducted as part of the annual review.” § 36-543(F).
If a hearing is requested, the applicant must prove, by clear and
convincing evidence, (1) “[t]he patient continues to have a mental
disorder and, as a result of that disorder, has either a persistent or
acute disability or a grave disability”; (2) “[t]he patient is in need of
continued court-ordered treatment”; and (3) “[t]he patient is either
unwilling or unable to accept treatment voluntarily.” § 36-543(H).

¶19         In large part, the parties dispute the meaning of the
“psychiatric examination” required to support a petition for
continued court-ordered treatment. S.A. maintains this provision
“means an examination of the person, not of his record,” and he
argues the petition should have been dismissed because Ross, acting
as an appointed examining psychiatrist under § 36-543(D), failed to
comply with this statutory requirement.

¶20          Without addressing S.A.’s argument that the statute’s
reference to “examination of the patient” requires a psychiatrist to
observe or communicate with the patient, CPSA contrasts the
provisions of § 36-543(D) and (E), which it argues do not “provide or
suggest that personal observations are a necessary component of a
psychiatric examination” for purposes of continued treatment, with
A.R.S. § 36-539(B), which requires that a hearing on an original
petition for treatment must include testimony regarding the
evaluating physicians’ personal observations. According to CPSA,
“The Arizona legislature knew how to require a psychiatric
examination to include personal observations . . . but chose not to”
and, therefore, § 36-543 “clearly and unambiguously does not
require a psychiatric examination to be based on personal

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observations.” CPSA also points out that, in 2012, the legislature
“amended [title 36, chapter 5] to clarify the evaluation and
examination requirements for purposes of Court-Ordered
Treatment,” and, in doing so, “removed the definition of
‘examination’ from § 36-501.” See 2012 Ariz. Sess. Laws, ch. 334, § 1.

¶21          We agree with CPSA that some of the recent
amendments to title 36, chapter 5, were intended to clarify that a
psychiatrist’s opinions regarding initial court-ordered treatment
could be based on “remote observations by interactive audiovisual
media,” § 36-501(12), in response to this court’s determination that
such observations were insufficient to meet the statute’s previous
requirement that physicians “personally conduct a physical
examination of [the] patient,” In re Pinal Cnty. Mental Health No.
MH-201000029, 225 Ariz. 500, ¶ 21, 240 P.3d 1262, 1268 (App. 2010).
But in contemporaneous amendments, the legislature also
substantially revised the procedure to be followed to continue court-
ordered treatment for patients initially found to be suffering from a
persistent or acute disability.

¶22           Before 2005, § 36-543 only addressed continued court-
ordered treatment for those patients initially found to have a grave
disability. See 1999 Ariz. Sess. Laws, ch. 83, § 11. The statute was
then amended to provide for continued involuntary treatment of a
patient initially found to be persistently or acutely disabled, but only
after “the medical director of the mental health treatment agency
determine[d] that the patient has been substantially noncompliant
with treatment during the period of the court order” and “an annual
examination and review” was conducted, with a psychiatrist
appointed “to carry out the examination.” 2005 Ariz. Sess. Laws,
ch. 291, § 2.

¶23           In 2011, the legislature amended this provision, striking
“examination” from the statute and requiring only that an appointed
psychiatrist conduct “an annual review.” 2011 Ariz. Sess. Laws,
ch. 19, § 4; see also Senate Fact Sheet, H.B. 2635, 50th Leg., 1st Reg.
Sess. (Ariz. Apr. 8, 2011) (stating revision “[e]liminate[d] the
requirement to conduct a physical examination of a patient as a
component of the annual review of . . . court-ordered treatment”).



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¶24          But in 2012, the legislature enacted more substantial
changes to § 36-543, as reflected in the current statute. It eliminated
the requirement that a patient be found substantially non-compliant
with treatment before the court order could be continued, but it
required the medical director, within newly specified time frames, to
personally “review” treatment records and, if that review suggested
continued court-ordered treatment was appropriate, to appoint a
psychiatrist to “carry out a psychiatric examination of the patient.”
2012 Ariz. Sess. Laws, ch. 334, § 6. Thus, having eliminated the
requirement for a psychiatric examination in 2011, the legislature
reinstated it in 2012. In light of the legislature’s recent distinction
between “review” and “examination,” see id.; 2011 Ariz. Sess. Laws,
ch. 219, § 4, we cannot conclude it intended the two terms to be
synonymous, as CPSA seems to suggest.

¶25          We agree with S.A. that the legislature contemplated a
two-step process that has not occurred here. Ross, as medical
director, reviewed the treatment records and concluded additional
treatment was necessary. But there was no evidence anyone
performed an additional “psychiatric examination,” which
presumably would have provided firsthand information on S.A.’s
current condition.2

¶26         “Generally, we will vacate a treatment order absent
strict compliance with the applicable statutory provisions.” Pima


      2We find persuasive S.A.’s argument that a “psychiatric
examination of the patient” must, at a minimum, include a
psychiatrist’s observations of him. See In re MH 2008-000438, 220
Ariz. 277, ¶ 14 & n.3, 205 P.3d 1124, 1127 & n.3 (App. 2009) (“[A]
psychiatric examination . . . includes observing the patient’s
demeanor and physical presentation, and can aid in diagnosis.”).
But because the facts here do not support a conclusion that any
examination was conducted after the medical director’s initial
review of records, we need not determine the scope of the
examination required by § 36-543(E). S.A. does not argue that Ross
was prohibited from appointing herself as an examining psychiatrist
pursuant to § 36-543(D), and we do not consider the issue.


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Cnty. No. MH-2010-0047, 228 Ariz. 94, ¶ 7, 263 P.3d at 645. We
conclude we must do so here.

Evidence of Persistent or Acute Disability

¶27           Although CPSA’s failure to strictly comply with
§ 36-543 requires us to vacate the trial court’s order for continued
treatment, we address S.A.’s second argument because of the
importance of the liberty interests at stake and because “the merits
of this issue potentially evade our review.” Coconino Cnty. No. 1425,
181 Ariz. at 292, 889 P.2d at 1090 (notwithstanding mootness,
considering “significant” involuntary treatment procedural issue
that may evade review due to “statutory time limits on commitment
orders and the delays inherent in the appellate process”); see also In
re Maricopa Cnty. Mental Health No. MH 90-00566, 173 Ariz. 177, 180,
840 P.2d 1042, 1045 (App. 1992) (noting “involuntary commitment
order affects important liberty interest” in deciding to address moot
issue that may evade review). “We view the facts in the light most
favorable to sustaining the trial court’s judgment,” In re MH
2008-001188, 221 Ariz. 177, ¶ 14, 211 P.3d 1161, 1163 (App. 2009), and
we will not reverse an involuntary treatment order for insufficient
evidence “unless it is ‘clearly erroneous or unsupported by any
credible evidence,’” In re MH 2008-000438, 220 Ariz. 277, ¶ 6, 205
P.3d 1124, 1125 (App. 2009), quoting In re Maricopa Cnty. Mental
Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745
(App. 1995). However, we review de novo the application and
interpretation of statutes involving involuntary mental health
treatment. Id.

¶28          To prevail on its petition to renew court-ordered
treatment, CPSA was required to prove, by clear and convincing
evidence, that S.A. “continues to have a mental disorder and, as a
result of that disorder, has . . . a persistent or acute disability.”
§ 36-543(H). And, to establish S.A. has a persistent or acute
disability, CPSA was required to prove, inter alia, that he has

            a severe mental disorder that . . . causes
            [him] to be incapable of understanding and
            expressing an understanding of the
            advantages and disadvantages of accepting


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             treatment      and    understanding      and
             expressing an understanding of the
             alternatives to the particular treatment
             offered after the advantages, disadvantages
             and alternatives are explained to [him].

§ 36-501(31)(b).

¶29          Construing this statutory language, we held that “as a
predicate to [the court] determining whether a mentally-ill person is
capable of engaging in a rational decision-making process”
concerning treatment, “the doctors must explain the advantages and
disadvantages of accepting treatment[] and . . . the alternatives to
such treatment and the advantages and disadvantages of such
alternatives.” In re Maricopa Cnty. Mental Health No. MH 91-00558,
175 Ariz. 221, 225, 854 P.2d 1207, 1211 (App. 1993). “Unless the
doctors have explained these matters to the mentally-ill person, the
applicant cannot establish that such person’s capacity to make an
informed decision is impaired.” Id.

¶30          We also have observed that this requirement may be
excused upon “clear and convincing [evidence] that it was
impracticable” to explain the advantages and disadvantages of
treatment alternatives to the patient, such as when a patient engages
in “excessive verbal abuse, physical abuse, repeatedly walking away
when the physicians attempt to discuss the matters, or
nonresponsiveness.” Maricopa Cnty. No. MH 94-00592, 182 Ariz. at
446, 897 P.2d at 748. Thus, “we do not believe that mental health
officials must engage in a confrontation with a mentally ill patient or
have the patient physically restrained in order to fulfill the letter of
the requirement.” In re Pima Cnty. Mental Health No. MH-1140-6-93,
176 Ariz. 565, 567-68, 863 P.2d 284, 286-87 (App. 1993).

¶31          Before the initial order for treatment, S.A. refused to
discuss treatment, as shown by a psychiatrist’s detailed explanation
that when he attempted to engage S.A. in such discussion, S.A.
became increasingly agitated and eventually said, in a raised voice,
“Please leave my cell front.” But when Ross was asked about more
recent attempts to engage S.A. about his treatment, she said that he
had “been willing to take his injection[s]” and that “[t]he [PCADC]


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clinical team would tell our liaison that there is a lack of insight into
his psychosis and the need for treatment,” but that “in terms of any
other engagement [she] ha[d] not read anything about it.” When
asked whether S.A.’s mental illness substantially impaired his
capacity to make an informed decision about treatment, Ross
answered, “I would say yes it does[,] but again that is a bit of a
stretch, based on what I’ve read in the chart.” Similarly, when asked
whether she believed S.A. was “capable of understanding and
expressing an understanding of the advantages and disadvantages
of treatment,” she relied on his initial refusal of treatment in the fall
of 2013, stating this was “[t]he only thing” she “really ha[d] to go on
in the records.”

¶32          Although CPSA acknowledges that § 36-543 requires a
petitioner to show the patient presently remains persistently or
acutely disabled, it attempts to distinguish Maricopa County No. MH
91-00558 on the basis that the physicians in that case had performed
evaluations in support of an initial order for treatment pursuant to
§ 36-533(B), not examinations pursuant to § 36-543(B). It argues that,
in contrast to those physicians, Ross “ha[d] the benefit of [a] year[’s]
worth of clinical records to aid in the decision-making process [and]
. . . was able to form a reasoned opinion” about S.A.’s capacity to
understand the advantages and disadvantages of treatment, after
those matters had been explained to him, “without personally
interviewing him.”

¶33         S.A. testified he did not think he had a mental disorder
and was only taking the medications because of the court order. But
there was no evidence that anyone had attempted to engage him
about the advantages and disadvantages of treatment after his court-
ordered treatment began in the fall of 2013, and no evidence that
S.A. had ever resisted such discussion.

¶34         Section 36-501(31)(b) requires more than evidence that a
patient wishes to decline treatment, see Maricopa Cnty. No.
MH-90-00566, 173 Ariz. at 184, 840 P.2d at 1049, and it “requires
more than a physician’s opinion that [he] suffers from a mental
disorder that impairs [his] ability to make an informed decision
about treatment,” Maricopa Cnty. No. MH 91-00558, 175 Ariz. at 225,
854 P.2d at 1211.      The statute “focuses on the mentally-ill

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individual’s decision-making process rather than on the content of
the decision,” and, pursuant to the statute, that process may be
found inadequate only after the advantages, disadvantages, and
alternatives to treatment have been explained. Maricopa Cnty. No.
MH-90-00566, 173 Ariz. at 184, 840 P.2d at 1049; see also In re Maricopa
Cnty. Mental Health No. MH 2007-001236, 220 Ariz. 160, ¶ 29, 204
P.3d 418, 427 (App. 2008) (to support involuntary treatment order,
physician’s opinion must be “expressed to a reasonable degree of
medical certainty”).

¶35          This court has recognized that “many patients who
respond favorably to treatment need not be subjected to continued
court-ordered treatment.” Maricopa Cnty. No. MH 94-00592, 182
Ariz. at 445, 897 P.2d at 747. In this case, Ross acknowledged that
S.A.’s psychotic symptoms had “cleared” after his treatment began
and testified that “[u]sually insight is progressive and the length of
time someone is stable the more insight they gain.” Before an order
for treatment may be extended beyond its original term, a petitioner
must present evidence of some recent testing of a patient’s
incapacity “to make an informed decision regarding treatment . . .
after the advantages, disadvantages and alternatives are explained.”
§ 36-501(31)(b). Although PCADC clinical staff may have engaged
S.A. in discussions about his treatment, there is no evidence in the
record that such an exchange occurred, and CPSA therefore failed to
prove, by clear and convincing evidence, that S.A. remained
persistently and acutely disabled.

                             Disposition

¶36         For the foregoing reasons, we vacate the trial court’s
order continuing S.A.’s involuntary mental health treatment
pursuant to § 36-543.




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