                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                         IN RE MH2015-003266


                         No. 1 CA-MH 15-0084
                           FILED 9-8-2016


          Appeal from the Superior Court in Maricopa County
                         No. MH2015-003266
          The Honorable Barbara L. Spencer, Judge Pro Tempore

                              AFFIRMED


                               COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo, Joseph Branco
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Anne H. Phillips
Counsel for Appellant



                               OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge Maurice Portley joined.


C A T T A N I, Judge:

¶1           Patient appeals the superior court’s order committing him for
involuntary mental health treatment. Patient argues that, because he did
not receive a statutorily required physical examination as part of his
                          IN RE MH2015-003266
                           Opinion of the Court

psychiatric evaluations, the involuntary treatment order is invalid. In light
of a 2012 statutory change authorizing a third-party to complete (or
attempt) the physical examination portion of the psychiatric evaluation,
and for reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In March 2015, Patient accosted several neighbors, kicked in
several doors, and took money from one neighbor’s home; the neighbors
and responding police officers noted that Patient seemed confused or
mentally disturbed. He was arrested and charged with burglary, trespass,
and disorderly conduct. The next month, while in jail on those charges,
Patient attacked several detention officers without provocation, inflicting
concussions, facial fractures, and other injuries. Patient was charged with
multiple counts of assault and aggravated assault arising from this incident.
During the criminal proceedings, Patient was found incompetent to stand
trial. See Ariz. Rev. Stat. (“A.R.S.”) § 13-4517; Ariz. R. Crim. P. 11.1 The
superior court ordered a Title 36 psychiatric evaluation, which led to these
civil commitment proceedings.

¶3            Patient was evaluated by two psychiatrists, each of whom
offered a probable diagnosis of schizophrenia and concluded that, because
of the mental disorder, Patient was a danger to others and persistently or
acutely disabled. During their separate in-person evaluations, both doctors
noted that Patient was largely non-verbal, although he seemed to
understand them and answered some questions. Although he denied
having hallucinations, Patient was laughing to himself and seemed to be
responding to internal stimuli throughout the interviews.

¶4            The physicians also reviewed records from Patient’s Rule 11
evaluation, which described Patient’s history of two voluntary
hospitalizations for mental health treatment in the preceding two years.
The records suggested that medication helped alleviate his symptoms, but
that he did not take the medication consistently after leaving inpatient
treatment. Both doctors noted that Patient had refused a physical
examination (one clarified that he had refused in the “previous facility”),
but also concluded that neither available records nor in-person observation
suggested that Patient’s psychiatric symptoms arose from a physical cause.




1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            Opinion of the Court

¶5            One of the doctors then filed a petition for court-ordered
treatment, attaching affidavits from both psychiatrists. After an evidentiary
hearing, the superior court found Patient to be a danger to others and
persistently or acutely disabled due to a mental disorder, and ordered
combined inpatient and outpatient treatment for no more than 365 days,
with inpatient treatment not to exceed 180 days.

¶6            Patient timely appealed, and we have jurisdiction under
A.R.S. § 36-546.01. Although Patient’s appeal is arguably moot as the
treatment order has since expired, we nevertheless consider the appeal
because it presents an issue of state-wide importance that is capable of
repetition and would otherwise evade review. See In re MH-2008-000867,
225 Ariz. 178, 179, ¶ 1 (2010).

                               DISCUSSION

¶7             Patient argues the superior court erred because he was
involuntarily committed without a statutorily required physical
examination as part of his psychiatric evaluation. Because involuntary
treatment strongly implicates a patient’s liberty interests, “statutory
requirements must be strictly construed and followed.” In re MH 2008-
002596, 223 Ariz. 32, 35, ¶ 12 (App. 2009). We review issues of statutory
interpretation de novo. In re MH 2001-001139, 203 Ariz. 351, 353, ¶ 8 (App.
2002). But we review the facts underlying the civil commitment order in
the light most favorable to upholding the superior court’s judgment and
will not set aside the court’s factual findings unless clearly erroneous. MH
2008-002596, 223 Ariz. at 35, ¶ 12.

¶8            The assessment of whether a patient’s mental condition and
need for treatment warrants a civil commitment order is based on a
psychiatric evaluation by two physicians. See A.R.S. §§ 36-501(11)(a), -
533(B), -539(B), -540(A). The requisite evaluation includes two statutorily
defined facets: (1) the psychiatric portion, consisting of “[a] professional
multidisciplinary analysis that may include firsthand observations or
remote observations by interactive audiovisual media and that is based on
data describing the person’s identity, biography and medical, psychological
and social conditions,” and (2) “[a] physical examination that is consistent
with the existing standards of care,” either performed or reviewed by one
of the evaluating physicians. A.R.S. § 36-501(11)(a), (b); see also A.R.S. § 36-
533(B).

¶9           Regarding the second requirement, until mid-2012, the statute
required that both physicians conduct a complete in-person physical



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                           Opinion of the Court

examination assessing the patient’s overall medical health. See A.R.S. § 36-
501(14) (2012); Pinal Cnty. Mental Health No. MH-201000029, 225 Ariz. 500,
502, 503–04, 506, ¶¶ 9, 14–15, 21 (App. 2010). The Legislature thereafter
amended the requirement to its current form, directing that just one of the
two evaluators conduct or review the physical examination, and
characterizing the examination as one “consistent with the existing
standards of care” rather than a “complete” medical assessment. A.R.S. §
36-501(11)(b); 2012 Ariz. Sess. Laws, ch. 334, § 1 (2d Reg. Sess.). The
modified physical examination requirement still allows the physicians to
evaluate any link between the patient’s condition and a potential physical
(rather than psychiatric) cause. See A.R.S. § 36-533(B) (stating that
physicians’ affidavits “shall also include any of the results of the physical
examination of the patient if relevant to the patient’s psychiatric
condition”); see also MH-201000029, 225 Ariz. at 503–04, ¶ 14.

¶10           The examination requirement may be excused if the patient
refuses or other circumstances render compliance impracticable. See In re
MH2011-000914, 229 Ariz. 312, 315, ¶¶ 10–11 (App. 2012). For instance,
“excessive verbal abuse, physical abuse, repeatedly walking away . . . , or
nonresponsiveness” may excuse further attempts to examine the patient.
Maricopa Cnty. Mental Health Case No. MH 94-00592, 182 Ariz. 440, 446 (App.
1995). And the physicians need not proceed with the examination if to do
so would trigger a confrontation or require physical restraints. Pima Cnty.
Mental Health Serv. Action No. MH-1140-6-93, 176 Ariz. 565, 568 (App. 1993).

¶11           Here, both physicians completed the psychiatric portion of
the evaluation based on an in-person interview with Patient, but neither
personally attempted a physical examination. Both physicians affirmed,
however, that Patient had refused a physical examination while in jail, and
one doctor explained her understanding that the examination had been
offered just one or two days before the evaluation. Unlike the version of
the statute governing the cases on which Patient relies (MH2011-000914,
MH 94-00592, and MH-1140-6-93), the current statute expressly authorizes
the evaluators to rely on a third-party’s examination (or here, attempted
examination). See A.R.S. § 36-501(11)(b). Although Patient argues that the
evaluators did not have an adequate basis to conclude he had actually
refused a physical examination, the doctors’ testimony was consistent with
both records and testimony showing Patient’s non-cooperation with any
assessments or treatment throughout his time in jail.

¶12         Moreover, the physicians also testified that they declined to
perform a physical examination based on Patient’s agitated, largely non-
verbal and uncooperative behavior during the psychiatric evaluations.


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                           Opinion of the Court

Although he answered questions occasionally, he remained largely
unresponsive. See MH 94-00592, 182 Ariz. at 446. And Patient was already
wearing restraints due to his previous volatile, aggressive behavior, and
one of the physicians noted that Patient remained agitated and was pulling
at his handcuffs during the evaluation. See MH-1140-6-93, 176 Ariz. at 568.

¶13            Patient nevertheless compares the doctors’ assessments here
to the evaluation in MH2011-000914, which this court concluded was
insufficient to support the treatment order. 229 Ariz. at 313, 315, ¶¶ 3, 10–
11. But in that case, the evaluating physician abandoned any interaction
with the patient after only two minutes because the patient asked for an
attorney, and the patient did not otherwise refuse to participate in the
interview or display any confrontational or aggressive behavior. Id.

¶14          Here, in contrast, the physicians actually conducted the
psychiatric portion of the evaluation (albeit not the physical examination),
each spending 30 or 40 minutes interviewing and observing Patient. Their
direct observations, in addition to the records of Patient’s previous mental
health treatment, provide a basis for their conclusions regarding Patient’s
mental disorder, as well as their opinions that Patient’s psychiatric
symptoms did not arise from a physical cause. Compare id. at 315, ¶ 12. And
unlike the patient in MH2011-000914, Patient repeatedly refused to
participate in assessments, and demonstrated unpredictable, violent
behavior on multiple occasions, as well as agitated, paranoid behavior
during the evaluation.

¶15          Accordingly, the physicians’ evaluations were sufficient to
support the court’s involuntary treatment order.

                              CONCLUSION

¶16          We affirm the treatment order.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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