State Of Washington, Resp. v. K. H. App. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of No. 70605-5-1
UNPUBLISHED OPINION
KINTA HOLLINS
FILED: August 4, 2014
Verellen, A.C.J. — Kinta Hollins seeks reversal of a 14-day involuntary
treatment order. Hollins contends that the trial court abused its discretion by
considering the testimony of a clinical psychologist about information contained in his
medical records. He also challenges the sufficiency of the evidence supporting the
court's findings that he suffered from a grave disability and that because of a mental
disorder, he presented a likelihood of serious harm to others. Because the trial court
did not violate the involuntary treatment act, chapter 71.05 RCW, in considering the
expert witness's testimony and substantial evidence in the record supports the court's
findings, we affirm.
FACTS
On June 13, 2013, professional staff of Harborview Medical Center filed a 14-
day involuntary treatment petition alleging that Hollins suffered from a mental
disorder and that, as a result, he was gravely disabled and presented a substantial
risk of physical harm to others.
No. 70605-5-1/2
At the hearing on the petition, Jesse Inman testified about an incident on May
31, 2013 at the Downtown Emergency Services Center (DESC), where he works. On
that date, Inman was conducting an evening "mat check" to assess bed availability
when Hollins approached him about some lost clothing. At that time, Inman was
talking to another client to resolve a different problem. When Inman finished this
conversation and turned around, he heard a "pop noise" from behind and turned
around to see the client to whom he had just been talking lying on the floor with a
bloody lip. Hollins was standing directly above the injured client in his boots and his
underwear with a belt wrapped around his hand, saying loudly, "Where are my
clothes?"1 There was no one else standing nearby. Hollins looked intimidating and
appeared to be agitated.
Joshua Welbaum, Hollins' mental health counselor at the DESC, testified that
after working with Hollins on an outpatient basis for two months, they had been
unable to make any progress whatsoever. He described Hollins as "very
disorganized" and largely unable to communicate.2 Welbaum stated that when
Hollins is frustrated or upset, he has a "menacing bearing" that caused him to
exercise caution when interacting with him.3
Joyce Shaffer, a clinical psychologist at Harborview, testified that she had
evaluated Hollins twice just prior to the hearing. She based her assessment of his
mental state on her personal evaluation, her review of Hollins' medical chart and staff
1 Report of Proceedings (RP) (June 14, 2013) at 6.
2 jd, at 16.
3 Id. at 18.
No. 70605-5-1/3
reports, and conversations with Welbaum and Inman. Shaffer said that Hollins
suffers from a mental disorder; namely, psychosis. She said that when she
evaluated him both times, Hollins said very little to her and the responses that he did
give were not even "slightly on target."4 Shaffer said she asked Hollins about the
assault that occurred at the shelter and he responded that "[tjhere's a lot of
instigating going on there."5 When she asked Hollins how he would attend to his
needs if he left the hospital, he said he would "continue paying [his] bills."6
Shaffer also testified about some of the notes from Hollins medical chart that
she relied upon in forming her opinion, including statements Hollins made to hospital
staff within a few days of the hearing and notes describing his behavior while
hospitalized. For instance, Shaffer recounted that Hollins asked a staff person to
read him a story while intently staring at the staff member's body and "suggestively
slowly licking his lips in a circular motion" and also told staff he had "no idea" why he
was there.7 When the civil detainment process was explained to Hollins by staff, he
said, "So this is all about my bank account?"8 He also told staff that he needed to
find his "payee" so he could obtain a "bazillion dollar check."9
Shaffer expressed the opinion that Hollins presented a substantial risk of
danger to others because of his recent assault, his unpredictable behavior, and "total
Uj± at 27.
5ld,
6]d,
7ldL at 33.
8]d,
9 Id. at 28.
No. 70605-5-1/4
disorganization by psychosis."10 Shaffer also cited Hollins' anger, hostility, and
menacing demeanor, his apparent distraction by internal stimuli, his inability to make
a contract with staff to ensure the safety of himself and others, and lack of recognition
or understanding of his need for treatment. Shaffer also concluded that Hollins was
gravely disabled, stating her opinion that if released, Hollins would further deteriorate
and would be unable to control aggressive impulses. She also cited his impairment
of judgment and impulse control, failure to recognize his need for treatment, and lack
of any evidence he would be able to meet his needs if released. Shaffer
recommended continued inpatient treatment to stabilize Hollins on medication.
At the conclusion of the commitment hearing, the court determined that Hollins
had a mental disorder and as a result, was gravely disabled and presented a
substantial risk of harm to others. The court also found that a less restrictive
alternative to inpatient treatment was not available. The court entered written
findings of fact and conclusions of law and ordered Hollins to undergo involuntary
treatment for a period not to exceed 14 days. Hollins appeals.
ANALYSIS
As a preliminary matter, although the 14-day commitment order at issue has
long since expired, the State has not argued that this case is moot. As Hollins points
out, a reversal would restore his right to possess a firearm. Also, the superior court's
order may have adverse consequences on future involuntary treatment
10
Id. at 35.
No. 70605-5-1/5
determinations.11 Under these circumstances, we exercise our discretion to decide
the appeal on the merits.
Medical Records Testimony
At one point during Shaffer's testimony, she read a note from the medical
chart written the previous day stating that Hollins was "not improving" in various
areas, including ability to communicate, manifestation of psychotic symptoms,
aggression, and hostility.12 Defense counsel objected to the testimony and
explained:
RCW 71.05.360 actually prohibits a witness from testifying about
opinions as to a client's mental state unless the person observing the
mental state, the person who has formed the opinion, is present in court
to be cross-examined. And that's true even where the chart has
satisfied the business records [exception].'131
The court read the relevant portion of RCW 71.05.360(9), which provides that
[t]he record maker shall not be required to testify in order to introduce
medical or psychological records of the detained person so long as the
requirements of RCW 5.45.020 are met except that portions of the
record which contain opinions as to the detained person's mental state
must be deleted from such records unless the person making such
conclusions is available for cross-examination.
The defense argued that the court was required to delete portions of the
medical records containing statements of opinions and could not consider such
evidence for any purpose. But the court observed that the statute required only
deleting portions of records when the records themselves were admitted into
evidence and that neither party was seeking to admit the medical records. The court
11 See In re Pet, of M.K.. 168 Wash. App. 621, 625-30, 279 P.3d 897 (2012).
12 RP (June 14, 2013) at 29.
13
Id.
No. 70605-5-1/6
determined that the statute did not prohibit the court from considering Shaffer's
testimony to the extent that she testified about facts memorialized in the medical
records, but ruled that it would not consider as substantive evidence any statements
of opinion about Hollins' mental state derived from the records.
Hollins claims that the trial court impermissibly considered evidence of
"psychiatric diagnoses" and "psychiatric reports" of witnesses who were not present
in court and not subject to cross-examination, in violation of RCW 71.05.360(9).14 As
a result, he contends that the trial court's order of commitment must be reversed.
A fundamental problem with Hollins' argument is that he fails to identify any
evidence of opinions about his mental state or psychiatric diagnoses that the trial
court improperly considered. RCW 71.05.360(9) only outlines the procedure for
admitting portions of medical or psychiatric records that constitute "opinions as to the
detained person's mental state." Hollins refers to Shaffer's testimony about "various
entries" in Hollins' medical chart.15 He also mentions Shaffer's testimony that she
learned from the initial detention paperwork that Hollins had a "'history of multiple
assaults.'"16 Hollins' history of assault does not appear to be included in the medical
records, but in any event, such history is not evidence of an opinion about Hollins'
mental state. Hollins fails to otherwise describe any inadmissible evidence.
Even if we considered the testimony that Hollins was "not improving" to be an
opinion as to his mental state, RCW 71.05.360(9) requires deleting only certain
14 Appellant's Br. at 11.
15 Id, at 9.
16 Id, (quoting RP (June 14, 2013) at 34).
6
No. 70605-5-1/7
portions of records ifthose records are admitted as evidence. As noted by the trial
court, where Hollins' medical records were not admitted into evidence, there was
nothing to delete or redact.17 The statute does not prohibit expert testimony about
information in the medical chart that is properly relied upon in forming an opinion.18
Even if the testimony about Hollins' lack of improvement was inadmissible, Hollins
does not argue that the expert was not entitled to consider it in forming her opinion.
And the trial court expressly declined to consider any statement of opinion about
Hollins' mental status as substantive evidence. Hollins argues that an expert may not
rely upon ER 703 and 705 to simply recite otherwise inadmissible information
contained in medical records. However, he provides no compelling authority
supporting his argument when experts rely upon such records to form their
opinions.19 Hollins fails to establish that the trial court abused its discretion in
considering any aspect of Shaffer's testimony.
Sufficiency of the Evidence
In general, an individual may be involuntarily committed for mental health
treatment if, as a result of a mental disorder, the individual either (1) poses a
17 Hollins' argument on appeal that the court could not consider Shaffer's
testimony about the medical records because the State failed to establish as required
by RCW 71.05.360 that they were business records is unavailing for the same
reason.
18 See ER 703 (expert may rely on inadmissible evidence as a basis for an
opinion or inference if the facts or data utilized are the type reasonably relied on by
experts in that particular field).
19 Hollins cites In re Welfare of J.M.. 130 Wash. App. 912, 924-25, 125 P.3d 245
(2005), which involved a caseworker and guardian ad litem reciting expert opinions
they had not formed. This court condemned consideration of such third party
opinions as substantive evidence. Here, Dr. Shaffer testified to her own expert
opinions and merely provided details of the information she relied upon to form them.
No. 70605-5-1/8
substantial risk of harm to him or herself, others, or the property of others, or (2) is
gravely disabled.20 In this case, the commitment order was based upon a finding that
Hollins both presented a substantial risk of harm to others and was gravely disabled.
Hollins challenges the sufficiency of the evidence supporting these findings.
To order the involuntary commitment, the court had to find by a
preponderance of the evidence that Hollins posed a substantial risk that physical
harm will be inflicted upon another "as evidenced by behavior which has caused such
harm or which places another person or persons in reasonable fear of sustaining
such harm."21 Or the court had to find by a preponderance of the evidence that
Hollins was gravely disabled. "Gravely disabled" is
a condition in which a person, as a result of a mental disorder: (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.!22^
To meet the standard of grave disability, there must be "recent, tangible evidence of
failure or inability to provide for such essential human needs as food, clothing,
shelter, and medical treatment which presents a high probability of serious physical
harm within the near future unless adequate treatment is afforded."23 Where the trial
court has weighed the evidence, our review is generally "limited to determining
20 RCW 71.05.240(3); In re Pet, of LaBelle, 107 Wash. 2d 196, 201-02, 728 P.2d
138(1986).
21 RCW71.05.020(25)(a)(ii), .240(3).
22 RCW 71.05.020(17).
23 LaBelle. 107 Wash. 2d at 204-05.
8
No. 70605-5-1/9
whether substantial evidence supports the findings and, if so, whether the findings in
turn support the trial court's conclusions of law and judgment."24
Hollins claims that the court's finding that he presented a risk of harm to others
is supported only by (1) evidence that hospital staff took safety precautions when
interacting with him and (2) circumstantial evidence that he was involved in an
assault.
He contends that this evidence is insufficient. While "circumstantial," the
evidence in the record establishing that Hollins recently assaulted a person at the
DESC was substantial. This evidence of assault alone was sufficient to support the
trial court's determination by a preponderance of the evidence that Hollins posed a
substantial risk of physical harm to others as evidenced by recent behavior.
Hollins also claims that the totality of the evidence does not establish that his
mental illness rendered him incapable of meeting his essential needs in the
community. He maintains that while the evidence might have indicated that
treatment might be beneficial, it is not enough to show that he could benefit from
treatment.25 But Shaffer's testimony about Hollins' "total disorganization by
psychosis," his complete lack of insight about his need for treatment, his impaired
judgment, and lack of impulse control all support the trial court's determination of
grave disability. According to the testimony, Hollins was largely unable to
communicate due to his mental illness and was thus unable to convey any
information about how he would care for himself were he released. The evidence did
24 jd, at 209.
25 See id. at 208.
No. 70605-5-1/10
not merely suggest that treatment would potentially help Hollins Substantial evidence
supports the court's determination by a preponderance of the evidence that due to
his mental disorder, Hollins would be unable to provide for his own health and safety
outside the hospital.
We affirm the involuntary treatment order.
WE CONCUR:
%ed