State v. A.S.

Madsen, J.

(dissenting) — In this case involving the liberty interest of individuals with “mental disorder[s],”¹¹ the majority holds that a social worker’s signature and the mere promise of a physician’s later affidavit in support of a petition for the 14-day involuntary commitment of a person constitutes substantial compliance with RCW 71.05.230(4). The statute, however, specifically provides that “[t]he petition must be signed either by two physicians or by one physician and a mental health professional who have examined the person.” RCW 71.05.230(4) (emphasis added). The majority ignores the statute’s mandatory language and the well-established and often repeated rule of strict construction applied to civil commitment statutes. Instead, the majority finds some implied exception to the requirements in RCW 71.05.230(4) where “unique circumstances” are presented.¹² In such circumstances, the majority believes that substantial compliance rather than strict compliance with the statute’s mandatory language is justified. Relying on one case, wholly unrelated to mental health commitment, the majority creates an unwarranted exception to a statute that is intended to prevent inappropriate detention and safeguard the liberty rights of the mentally disordered. RCW 71.05.010. Additionally, the majority holds that a social worker’s testimony alone is sufficient expert testimony of a detainee’s mental condition to justify further commitment. I must respectfully dissent.

RCW 71.05.230(4)’s Signature Requirement

RCW 71.05 sets forth procedures for detaining a person involuntarily for an additional 14 days following an initial 72-hour emergency detention. RCW 71.05.230 contains detailed provisions for petitioning, for additional treatment. The statute provides:

A person detained for seventy-two hour evaluation and treatment may be detained for not more than fourteen additional days of involuntary intensive treatment or ninety additional days of a less restrictive alternative to involuntary intensive treatment if the following conditions are met:

(1) The professional staff of the agency or facility providing evaluation services has analyzed the person’s condition and finds that the condition is caused by mental disorder and either results in a likelihood of serious harm, or results in the detained person being gravely disabled and are prepared to testify those conditions are met; and

(2) The person has been advised of the need for voluntary treatment and the professional staff of the facility has evidence that he or she has not in good faith volunteered; and

(3) The facility providing intensive treatment is certified to provide such treatment hy the department; and

(4) The professional staff of the agency or facility or the county designated mental health professional has filed a petition for fourteen day involuntary detention or a ninety day less restrictive alternative with the court. The petition must be signed either by two physicians or by one physician and a mental health professional who have examined the person. If involuntary detention is sought the petition shall state facts that support the finding that such person, as a result of mental disorder, presents a likelihood of serious harm, or is gravely disabled and that there are no less restrictive alternatives to detention in the best interest of such person or others. The petition shall state specifically that less restrictive alternative treatment was considered and specify why treatment less restrictive than detention is not appropriate. If an involuntary less restrictive alternative is sought, the petition shall state facts that support the finding that such person, as a result of mental disorder, presents a likelihood of serious harm, or is gravely disabled and shall set forth the less restrictive alternative proposed by the facility; and

(5) A copy of the petition has been served on the detained person, his or her attorney and his or her guardian or conservator, if any, prior to the probable cause hearing-, and

(6) The court at the time the petition was filed and before the probable cause hearing has appointed counsel to represent such person if no other counsel has appeared; and

(7) The court has ordered a fourteen day involuntary intensive treatment or a ninety day less restrictive alternative treatment after a probable cause hearing has been held pursuant to RCW 71.05.240; and

(8) At the conclusion of the initial commitment period, the professional staff of the agency or facility or the county designated mental health professional may petition for an additional period of either ninety days of less restrictive alternative treatment or ninety days of involuntary intensive treatment as provided in RCW 71.05.290; and

(9) If the hospital or facility designated to provide outpatient treatment is other than the facility providing involuntary treatment, the outpatient facility so designated has agreed to assume such responsibility.

RCW 71.05.230 (emphasis added).

The statute guarantees that a person subject to additional confinement will undergo proper examination, evaluation, and treatment with a qualified agency or treatment facility in the event a petition is filed. The statutory procedures also assure that the detainee receives due process. Even before a petition is filed, the detainee must be advised of the need for treatment. RCW 71.05.230(2). Should the detainee be unwilling to undergo treatment voluntarily, the detainee is entitled to a copy of the petition prior to the probable cause hearing and legal representation at the hearing. RCW 71.05.230(5), (6). A petitioning agency must be certified to provide treatment and must advise and notify the detainee of the need for such treatment. RCW 71.05.230(2), (3), (4).

The statute contemplates only two legally sufficient sets of signatures to a 14-day petition, either those of two physicians or those of one physician and a mental health professional who have examined the detainee. RCW 71.05.230(4). In clear and unambiguous language, the statute requires the signature of at least one physician who has examined the individual. Where the language of a statute is unambiguous, its plain meaning must not be altered through the guise of construction. State ex rel. T.B. v. CPC Fairfax Hosp., 129 Wn.2d 439, 451, 918 P.2d 497 (1996); see also In re Detention of Swanson, 115 Wn.2d 21, 27, 793 P.2d 962, 804 P.2d 1 (1990) (concerning statutory provisions applying to the 72-hour initial detention period; “[w]here statutory language is plain and unambiguous, a statute’s meaning must be derived from the wording of the statute itself.”) (quoting Human Rights Comm’n v. Cheney Sch. Dist. No. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982)).

The majority reasons, however, that the signature requirement may be satisfied by substantial compliance. The effect of the majority’s analysis is to rewrite the statute to include an implied exception not contemplated by the statutory scheme.¹³ Just as problematic, the majority’s approach unaccountably departs from settled case law, relies upon an inapposite case, and fails to address the substantial/strict compliance question in any meaningful way. Crosby v. County of Spokane, 137 Wn.2d 296, 971 P.2d 32 (1999) is neither factually nor legally similar to this case. There, the issue was superior court appellate jurisdiction, and the issue was whether a statute that provided that a statutory writ of certiorari must be supported by an affidavit or verification could be satisfied by substantial compliance. The court held that it could, pointing out that the purpose of the affidavit/verification requirement is to assure the truthfulness of pleadings and discourage merit-less claims. Id. at 302. The court observed that substantial compliance has been defined as actual compliance in respect to the substance essential to the statute’s reasonable objectives, and concluded that where the governmental body to which the writ is directed has notice and stipulates to the writ’s issuance, the purpose of the requirement is generally satisfied. Id. at 302, 303. Instead of arguing against the writ at a show cause hearing, the governmental body in Crosby stipulated to the writ. Id. at 303.

Here, the issue does not involve superior court appellate jurisdiction or statutory writ requirements, but instead involves statutory requirements for petitions for 14-day involuntary civil commitments. Fundamental, paramount principles underlie the civil commitment statutes which dictate that the statutory scheme must be adhered to strictly. Fourteen days of involuntary detention involves a significant deprivation of liberty. In re LaBelle, 107 Wn.2d 196, 221, 728 P.2d 138 (1986). The United States Supreme Court has stated that “for the ordinary citizen, commitment to a mental hospital produces ‘a massive curtailment of liberty ....’” Vitek v. Jones, 445 U.S. 480, 491, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (quoting Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972)). Involuntary commitment involves not only the loss of freedom from confinement, but indisputably involves adverse social consequences to the detainee. Vitek, 445 U.S. at 492; LaBelle, 107 Wn.2d at 221; see In re Harris, 98 Wn.2d 276, 279-80, 654 P.2d 109 (1982). Because involuntary commitment constitutes such a massive curtailment of liberty, mental illness alone is not a constitutionally adequate basis to forcibly confine a person, nor will the prospect of beneficial treatment to the mentally disordered serve as an independently sound reason. LaBelle, 107 Wn.2d at 201 (citing Humphrey, 405 U.S. at 509). Moreover, the significant liberty interest at stake requires that due process guaranties accompany involuntary commitment for mental disorders. Vitek, 445 U.S. at 491-92; Harris, 98 Wn.2d at 279; CPC Fairfax Hosp., 129 Wn.2d at 452 (holding continued detention of minor violative of Mental Health Service for Minors Act because of failure to file petition for additional 14-day detention).

In accord with these due process concerns, the Legislature has provided detailed, specific procedures for the detention and treatment of mentally disordered individuals throughout chapter 71.05 RCWJ with careful attention to increasing the due process rights of detained persons as the prospect and duration of commitment lengthens. Although the procedural safeguards differ with the nature and length of the commitment sought, the Legislature has clearly delineated the specific processes to which a person is entitled, whether that person is subject to emergency detention,¹⁴ extended confinement and/or treatment,¹⁵ or some other less restrictive alternative.¹⁶ The express, extensive statutory scheme indicates legislative intent that the procedures be strictly followed.¹⁷

Further, and utterly contrary to the majority’s view, the liberty interest at stake is so important that this court has repeatedly held that the civil commitment statutes must be strictly construed. E.g., In re Detention of LaBelle, 107 Wn.2d 196, 205, 728 P.2d 138 (1986); In re Cross, 99 Wn.2d 373, 662 P.2d 828 (1983). The court has expressly directed that “ ‘[w]here a statute prescribes a certain method of procedure to determine whether persons are insane, such inquiries must be conducted in the mode prescribed, and the statute regulating such proceedings must be followed strictly.’ ” In re Swanson, 115 Wn.2d at 27 (quoting In re Eastman, 151 Wash. 321, 322, 275 P. 724 (1929)). Strict, not substantial, compliance has been the law of this state where civil commitment is concerned.

Reference to a single inapposite case simply does not justify application of the substantial compliance standard in this case, especially in the face of a detailed, extensive statutory scheme and this court’s cases holding that strict construction and strict compliance are required where involuntary commitment is concerned.

Moreover, the substantial compliance standard should not be applied here because its application contravenes clear legislative intent. As the court in Crosby explained, the substance essential to a statute’s purpose must be satisfied before substantial compliance suffices. Consideration of two purposes served by the signature requirement leads to the conclusion that the doctrine should not be applied in this case. First, the requirement that a physician sign the petition serves as a procedural safeguard assuring an agency’s or treatment facility’s professional qualifications, thereby lessening the risk of unwarranted deprivation of the detainee’s liberty. The requirement plainly is that before a petition for civil commitment is filed, a physician must examine the detainee, and his or her signature attests to the findings resulting from that medical examination, to the qualifications of the examiner, and to the legally necessary conclusion that the individual either presents a serious likelihood of harm or is gravely disabled.

This essential substance of the statutory requirement is not met in any respect by forgoing the requirement on a “promise” that a future affidavit will be provided to “cure” the failure to comply with the statute.

The second purpose of the signature requirement relates to the notice required. As a component of the due process which must be afforded detainees, notice must be meaningful. In Vitek, 445 U.S. 480, the Court held unconstitutional a Nebraska statute which permitted transfer of a prison inmate to a mental hospital if a physician or psychologist found the prisoner to be suffering from a mental disease or defect which could not be properly treated in prison. The Court’s decision turned on the important liberty interest at stake, and the Court held that such transfer could not occur without due process. The Court approved procedural requirements identified by the district court, including written notice that a transfer was being considered and a hearing, “ ‘sufficiently after the notice to permit the prisoner to prepare ....’” Vitek, 445 U.S. at 494 (quoting Miller v. Vitek, 437 F. Supp. 569, 575 (D.C. Neb. 1977)). The Court observed: “The notice requirement imposed by the District Court no more than recognizes that notice is essential to afford the prisoner an opportunity to challenge the contemplated action and to understand the nature of what is happening to him.” Vitek, 445 U.S. at 496 (quoting Wolff v. McDonnell, 418 U.S. 539, 564, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)).

This court has also recognized the need for adequate notice. In In re Cross, 99 Wn.2d 373, 382, 662 P.2d 828 (1983), for example, the court held that in a conditional release proceeding, the detainee’s procedural rights were violated as a result of the petitioning facility’s failure to provide complete notice, specifically a statement of the alternative grounds on which respondents sought detention. Id. at 382-84. There, the court explained that the central purpose of the petition is to provide the detained person notice so as to apprise the individual of, and permit adequate preparation for, an impending hearing. Id. at 382 (citing Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978) and Ashley v. Superior Court, 83 Wn.2d 630, 635, 521 P.2d 711 (1974)).

The Washington statute requires that a copy of the valid petition be made available to the detained person, his or her attorney, and his or her guardian or conservator prior to the probable cause hearing. RCW 71.05.230(5). When a physician signs a 14-day petition, affirming in his or her professional opinion the mental disorder and facts supporting a finding that the individual presents a likelihood of danger or is gravely disabled, the individual is advised of the basis for commitment, founded on a qualified medical examination. This information is essential to the individual’s ability to prepare a challenge to the petition. The signature requirement of RCW 71.05.230(4) thus goes to the issue of proper notice to the detained person. The statutory requirement of two signatures, including at least one from a physician, provides notice to the detained, his or her attorney, and guardian or conservator, about the mental health professionals who have examined the detainee and are willing to attest to the statements in the petition. The signatures further provide the added reassurance that two qualified mental health professionals, including a physician, have not only conferred as to the examination and evaluation of the detainee, but have also jointly exercised their discretion in filing the petition requesting the extended detention of the mentally disordered person.

The link between the qualified professional’s evaluation of the individual revealed in the petition and notice to the individual is an additional purpose relating to the signature requirement which is not satisfied to any degree by a petition which does not even contain the signature of an examining physician as required by the statute.

Accordingly, by applying a substantial compliance standard, the majority seriously erodes the procedural protections which the Legislature has mandated.

I would hold that the statutory signature requirement must be strictly complied with and it was not in the cases of Arnold Sheldon and Ellen Lucas.

Other aspects of the majority’s analysis are also troubling. The majority is all too willing to accept the circumstances of the present cases as “unique,” majority at 901, finding that Sheldon and Lucas were so obviously mentally disordered and that the failure to obtain the statutory signatures were not the result of “oppression, carelessness, or attempted circumvention of the statutory procedural requirements.” Majority at 913. In doing so, the majority fails to recognize the unilateral discretionary authority its analysis gives to nonphysicians as a result. Here, a social worker had prepared and filed petitions with nothing more than his signature and a promise of a physician’s later affidavit, which, incidentally, was not provided until the day of the probable cause hearing. The ad hoc nature of this procedure does not provide the procedural safeguards intended by the statute’s signature requirement. See CPC Fairfax Hosp., 129 Wn.2d at 453 (once the State has granted a liberty interest by statute, “ ‘due process protections are necessary “to insure that the state-created right is not arbitrarily abrogated.” ’ ”) (quoting Vitek, 445 U.S. at 489). Regardless of the circumstances, the statutory procedural safeguards should not be compromised by an agency’s or treatment facility’s failure to ensure the availability of qualified staff. Under the majority’s broad holding, the unavailability of a physician due to sickness or some other “unique circumstance” essentially excuses an agency or treatment facility from the signature requirement.

Moreover, the majority’s extensive recitation of the factual circumstances in these cases appears designed to convince that no matter how much the statutory requirements have been ignored, these individuals were so disturbed and such a danger to themselves or others, or so gravely disabled that commitment was the only appropriate result in these cases despite noncompliance with statutory requirements.

The sad truth is that the legislation concerns deeply disturbed individuals, and many cases are likely to have similarly troubling facts about individuals’ behavior and conditions. But there is absolutely nothing in the statutes that permits granting less due process based upon egregious facts. To the contrary, the statutes clearly contemplate procedures involving very disturbed individuals.

Finally, that the petitions may have been dismissed without prejudice is not a reason to dispense with individual’s rights where civil commitment proceedings are concerned. The statute’s plain language and the case law requiring strict construction of civil commitment statutes mandate dismissal where the procedural requirements have not been satisfied.

Notice

Of course, the signature requirement is not the only issue in this case concerning notice. Not only were the petitions in Arnold Sheldon’s and Ellen Lucas’ cases defective for lack of a physician’s signature, the affidavits in both cases were filed on the day of the probable cause hearing and provided to the detainees’ counsel just moments before the hearing, violating the individuals’ due process rights. As noted, the United States Supreme Court has made it abundantly clear that “notice is essential” to provide the individual “an opportunity to challenge the contemplated action and to understand the nature of what is happening” to him or her and must be provided in time for the individual to prepare for the hearing. Vitek, 445 U.S. at 496.

Accordingly, it is not enough to provide such notice moments before a hearing because it provides no opportunity for the individual to prepare any challenge to the 14-day petition. Sheldon and Lucas were not afforded the proper notice to which they were entitled.

The majority nevertheless suggests that Sheldon’s and Lucas’ rights were not compromised because, the majority says, they received basic notice and an opportunity to be heard. Majority at 912-13. The majority points to the fact that Sheldon and Lucas do not complain of their initial emergency detention and that, ultimately, they were each served a copy of the (incomplete and invalid) petition and afforded a probable cause hearing for their additional 14-day detention. Id. The petition for an additional 14-day detention, however, is a different proceeding from the initial detention and involves an even greater liberty interest of the detained person due to the extension of time. Further, whether the initial detention was constitutionally sufficient is not relevant to the question whether additional involuntary commitment for 14 days has a constitutionally adequate basis. See O’Connor v. Donaldson, 422 U.S. 563, 574-75, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). Hence, the need for strict compliance with the statutory requirements for 14-day petitions regarding examination and evaluation of the detained, timeliness of petitions, court orders, and, not least of all, notice, remains the same regardless of whether there is any complaint about the initial detention.

Contrary to the majority’s conclusion, these individuals did not have adequate notice.

Expert Testimony

In all three cases before the court, Bruce Work, the social worker who filed the petitions, provided the only expert testimony during the hearings as to the detainees’ mental conditions. The majority holds that a social worker’s diagnosis of a detainee’s mental condition is sufficient expert testimony at a probable cause hearing to justify a 14-day commitment order. I disagree.

RCW 71.05 does not bar a social worker from testifying as to the mental condition of a detained person, and a social worker qualifies as a “mental health professional” under the civil commitment statutes. However, while a social worker’s testimony is not per se inadmissible, under the statutory scheme such testimony alone cannot serve as the sole expert testimony regarding a detainee’s mental condition so as to warrant a 14-day commitment order. The Legislature specifically requires at least one physician to directly participate in the evaluation and recommendation for extended detention. See, e.g., RCW 71.05.230(4). The Legislature thus requires a medical doctor to play a significant role in both the professional and legal sense in evaluation of the mental condition of a detainee and determination of the need for treatment or involuntary commitment. See LaBelle, 107 Wn.2d at 207 (noting the danger in excessive judicial deference to opinions of mental health professionals’ findings of gravely disabled persons). It follows that a physician’s testimony is a necessary predicate to a 14-day commitment order.

The majority’s nearly exclusive reliance on ER 702 and 703 is too narrow a focus, because it overlooks legislative intent that a physician be involved in order to prevent inappropriate detention of mentally disordered persons and to safeguard their individual rights.

The majority’s attempt to distinguish In re Detention of Twining, 77 Wn. App. 882, 894 P.2d 1331 (1995) is unpersuasive. There, the court concluded that psychiatric or psychological testimony was essential to the issue of whether an individual suffers from a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence. Because the expert testimony proffered by the individual was not such testimony, the Court of Appeáls held that the trial court did not err is refusing to admit it. Similar to the situation in Twining, in these cases, a physician’s testimony is essential to the issue of whether the detainees present a likelihood of serious harm or are gravely disabled. The issue is not one of categorical conclusions as to who may present expert testimony, but whether the expert is qualified to give the kind of testimony necessary to a commitment order.

The result of the majority’s analysis is that the discretion and evidentiary weight given to a social worker’s signature and testimony in support of a 14-day petition is far too great to comport with the statutory requirement that a physician be involved in the commitment procedures.¹⁸ Under the majority’s holding, a physician assumes only the role of after-the fact consultations with a social worker who essentially assumes the primary role of determining whether, and to what extent involuntary detention should be sought.

The statutes do not support the unilateral discretion the majority is willing to grant individual mental health professionals who are untrained in psychiatric or neurological medicine. In addition, case law holds that strict construction applies to civil commitment statutes, yet the majority essentially allows an individual mental health professional who is not a physician to single-handedly determine the type and degree of mental health care for a detainee. In other words, a social worker may assume primary responsibility for not only filing a petition for extended detention, but for rendering expert diagnosis of the detainee’s mental condition as well. ■

In light of the statutory requirement that at least one physician sign the petition, this court should hold that expert testimony at a probable cause hearing on a petition for an additional 14-day involuntary detention of a person must include a physician’s diagnosis of the detainee’s mental condition.¹⁹

For the reasons set forth in this opinion, I dissent.

Johnson, Alexander, and Sanders, JJ., concur with Mad-sen, J.

11 RCW 71.05.020(15) defines “mental disorder” as “any organic, mental, or emotional impairment which has substantial adverse effects on an individual’s cognitive or volitional functions . . . .”

12 Of course, the majority fails to define the parameters of this judicially created exception or to explain why substantial compliance is applicable only if “unique circumstances” are present.

13 Had the Legislature intended to create an exception to the signature requirement, it would have done so expressly. See In re Detention of Swanson, 115 Wn.2d 21, 27, 804 P.2d 1 (1990) (had Legislature intended initial detention period to be measured in days rather than hours, it would have said so). Moreover, the Legislature chose to limit the signature provision by using the word “must”— creating a mandatory duty for the petitioning agency or treatment facility. Cf. State v. Krall, 125 Wn.2d 146, 148-49, 881 P.2d 1040 (1994) (“shall” in a statute creates mandatory requirement absent contrary legislative intent); State v. Dodd, 120 Wn.2d 1, 14, 838 P.2d 86 (1992) (“shall” (as synonymous with “must”) is a mandatory obligation).

14 See, e.g., ROW 71.05.150-.180 providing for specific procedures for the 72-hour emergency detention, which involve investigation and evaluation of the alleged facts about the person’s mental disorder, filing of petition, notice to person subject to emergency detention, and a superior court’s role in facilitating the process.

15 See, e.g., ROW 71.05.230-.320 providing for specific procedures regarding the detention and treatment of a person beyond the 72-hour emergency period. Such procedures refer to the examination, evaluation, and the judicial proceedings a person is entitled to.

16 Id.

17 This court has previously declined to apply a substantial compliance standard in the face of evidence of legislative intent that strict compliance was necessary. Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614, 902 P.2d 1247 (1995).

18 Although the majority recognizes the fact that a social worker’s testimony is insufficient to constitute expert testimony of a detainee’s mental disorder, it nevertheless confuses the physicians’ affidavits submitted in support of the petitions with testimony that was otherwise required at the probable cause hearing. The physicians’ affidavits were not, as the majority believes, unobjected to expert testimony for they were submitted only to support the petitions. Indeed, before proceeding with the probable cause hearings for Sheldon and Lucas, counsel for both detainees did object to the physicians’ affidavits and moved for dismissal of the cases on grounds that the petitions were defective and the physicians’ later affidavits could not remedy such defect. Report of Proceedings (RP), Arnold Sheldon at 2-9: RE Ellen Lucas at 2-4.

19 The Guidelines for Involuntary Civil Commitment support creating such, a requirement noting that the testimony of at least one psychiatrist or clinical psychologist who has examined the detainee gives the parties and the court an opportunity to probe the statements and the conclusions contained in the written reports. National Center for State Courts’ Guidelines for Involuntary Civil Commitment, in 10 Mental & Physical Disability L. Rep. 409, 488 (1986).