State Of Washington, V. W. E. C. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of No. 82420-1-I
W.C.,
UNPUBLISHED OPINION
Appellant.
Per Curiam — W.C. appeals a 14-day involuntary commitment. W.C.
contends, and respondent Cascade Behavioral Health (Cascade) concedes, that
counsel rendered ineffective assistance by failing to seek dismissal of the petition
for detention based on lack of compliance with a provision of the involuntary
treatment act (ITA), RCW 71.05.154. We accept the concession. The
designated crisis responder who recommended W.C.’s initial detention failed to
comply with the statutory obligation to consult with or review the written
observations and recommendations of the examining medical professional. W.C.
suffered prejudice as a result. We reverse and remand.
Former RCW 71.05.153 (LAWS OF 2020, ch. 302, § 16) allows a
“designated crisis responder” who receives “information alleging that a person,
as the result of a mental disorder, presents an imminent likelihood of serious
harm, or is in imminent danger because of being gravely disabled,” to take that
person, or arrange for the person to be taken, into emergency temporary custody
for evaluation and treatment. In making this decision, if the person in question is
located in an emergency room, RCW 71.05.154 requires the crisis responder to
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82420-1-I/2
consult with the examining medical professional, or if unavailable, to review the
written observations and opinions of that professional:
If a person subject to evaluation under RCW 71.05.150 or
71.05.153 is located in an emergency room at the time of
evaluation, the designated crisis responder conducting the
evaluation shall take serious consideration of observations and
opinions by an examining emergency room physician, advanced
registered nurse practitioner, or physician assistant in determining
whether detention under this chapter is appropriate. The
designated crisis responder must document his or her consultation
with this professional, if the professional is available, or his or her
review of the professional’s written observations or opinions
regarding whether detention of the person is appropriate.
In In re Detention of K.R., 195 Wn. App. 843, 847-48, 381 P.3d 158(2016), Division Two of this court held that a violation of a former version of this
statute amounted to a total disregard for the provisions of the ITA, warranting
reversal of the commitment order.1 See RCW 71.05.010(2) (courts must focus
on the merits of a petition for involuntary commitment unless statutory
requirements were “totally disregarded”). As Cascade concedes, the crisis
responder here neither consulted with the examining medical professional nor
documented her review of the medical professional’s written observations and
opinion as to the need for W.C.’s detention. And, because it is reasonably likely
that the court would have dismissed the petition under the authority of K.R., had
counsel raised this issue, W.C. has met his burden to establish that he was
prejudiced by the deficient representation of counsel. See In re Det. of T.A.H.-L.,
1
This court later disagreed with the K.R. court’s determination that a violation of the
former statute occurred when the detention did not arise from an emergency room visit and no
physician was available for consultation. See In re Det. of C.A.C., 6 Wn. App. 2d 231, 235-36,
430 P.3d 276 (2018). This disagreement is now immaterial in light of subsequent amendments to
the statute. Relevant to this case, we expressed no disagreement with the K.R. court’s holding
that a failure to comply with RCW 71.05.154 constitutes a complete disregard for the
requirements of the ITA.
2
No. 82420-1-I/3
123 Wn. App. 172, 178-79, 97 P.3d 767 (2004) (respondent in a civil commitment
proceeding has a statutory right to effective assistance of counsel and the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984), standard applies).
We reverse and remand to vacate the 14-day commitment order.
WE CONCUR:
3