In Re The Detention Of: P.r.

Filed
Washington State
Court of Appeals
Division Two
August 3, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Detention of: No. 54643-4-II
P.R., PUBLISHED OPINION
Petitioner.
MAXA, J. – PR appeals an order authorizing the involuntary treatment of him with
antipsychotic medications under RCW 71.05.217(1)(j). After PR was involuntarily committed to
Western State Hospital (WSH) for mental health treatment, a WSH psychiatrist petitioned for
involuntary treatment with antipsychotic medications. The superior court found that there was a
compelling state interest in administering the medications to prevent detention at WSH for a
substantially longer period of time and to allow PR a realistic opportunity to improve his mental
condition and obtain release from involuntary hospitalization.
Under RCW 71.05.217(1)(j)(i), the State must prove by clear, cogent, and convincing
evidence that there is a “compelling state interest” that justifies the involuntary administration of
antipsychotic medications. The State may have a compelling interest if without such involuntary
treatment, the patient’s detention will be for a substantially longer period of time. We hold that
there was insufficient evidence based on the clear, cogent, and convincing standard to support
the superior court’s finding that the State had a compelling interest in preventing substantially
prolonged detention at WSH sufficient to override PR’s right to refuse consent for the
medications.
No. 54643-4-II
Accordingly, we reverse the superior court’s order authorizing the involuntary treatment
of PR with antipsychotic medications.
FACTS
Background
At the time of the motion, PR was a 55-year-old male who was diagnosed with
schizoaffective disorder and had symptoms of psychosis and mood fluctuations. In July 2019, he
was involuntarily committed for up to 180 days at WSH. Dr. Nandan Kumar, a psychiatrist at
WSH, began treating PR around October 2019.
In or around January 2020, Dr. Kumar or another WSH petitioner apparently filed a
petition for PR to be involuntarily committed for an additional 180 days. A superior court
commissioner granted the petition on January 23, 2020.
Also in January 2020, Dr. Kumar filed a petition for involuntary treatment with
antipsychotic medication, specifically Zyprexa and Haldol. After a hearing, a superior court
commissioner dismissed the petition for involuntary treatment with medication because the State
had failed to meet its burden of proof by clear, cogent, and convincing evidence.
Second Petition for Involuntary Treatment with Antipsychotic Medication
On March 4, 2020, Dr. Kumar filed a second petition for involuntary treatment with
antipsychotic medication. He again requested involuntary treatment with Zyprexa and Haldol.
The petition referenced two specific incidents in January and March where PR (1) charged at a
staff member and spit at her and (2) was placed in seclusion after throwing his food and food tray
at a food server and attempting to attack another staff member.
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After a number of continuances, a superior court commissioner held a telephonic hearing
on the petition on April 15.1 Dr. Kumar was the only person who testified at the hearing. PR
refused to attend and the commissioner waived his presence.
Dr. Kumar testified that he had been treating PR for about six months and that PR had
been diagnosed with schizoaffective disorder. Dr. Kumar stated that PR’s delusions included
believing that he was a U.S. Senator, that the staff was exploiting him, and that Dr. Kumar was
an imposter. PR had mood fluctuations where he would become quiet and then become
extremely explosive and yell at and come at staff. Dr. Kumar stated that he personally witnessed
PR break a knob off a door and yell and scream at the staff.
Dr. Kumar stated that his opinions depended in part on PR’s medical chart notes. He
testified about five different incidents reflected in the chart notes where PR acted out in late
March and early April. These incidents included refusing his lunch and throwing it at staff;
screaming and yelling at a staff member; claiming that a staff member had done something in
Denver; claiming that the staff member was responsible for the burning in the Amazon; throwing
his dinner at staff without provocation and yelling at them; and telling a nurse to get out of his
way while using expletives and swinging at the nurse. Staff successfully utilized responses such
as verbal redirection and the use of an open air room, a resting place that patients presumably use
to calm down, after some of these incidents.
Dr. Kumar believed that PR would continue to engage in similar behaviors as long as he
remained psychotic. He stated that because PR did not know what he was doing, his behaviors
1
The parties appeared telephonically due to COVID protocols. Portions of the transcript from this
hearing have been marked as inaudible by the court reporter due to the inability to hear the parties over
the phone.
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No. 54643-4-II
likely would continue. In addition, Dr. Kumar believed that PR posed a likelihood of serious
harm to others.
Dr. Kumar opined that the requested antipsychotic medications would be effective in
PR’s case. He stated that PR had been treated with Zyprexa and Haldol a few years previously
before his admission to WSH, and that the medications had helped him. Dr. Kumar expected
that the medications would help relieve PR’s symptoms. He explained that the medications
would allow PR to think more clearly and that they would relieve the intensity of PR’s
symptoms. Once the medications took effect, PR’s delusions would be less prominent and he
would not be bothered by thoughts of paranoia.
Dr. Kumar specifically was asked about PR’s prognosis if the requested medications
were not administered, but the trial transcript indicates that his response was inaudible. The only
testimony Dr. Kumar provided regarding whether PR would be detained longer without
medication was as follows:
Q. And would failure to administer these medications substantially prolong his stay
at [WSH]?
A. Yes. If he’s not medicated the stay would be prolonged.
3 Report of Proceedings (RP) at 31. Dr. Kumar did not state for how long PR likely would be
detained if he did not take the medication.
Finally, Dr. Kumar stated that “less intrusive treatment like verbal redirection or
psychotherapy is not going to be effective at this time . . . [b]ecause of the degree of psychosis
and the intensity of paranoia.” 3 RP at 31. However, once PR was medicated and his symptoms
improved, alternative measures would be much more effective.
The commissioner dismissed the petition for involuntary treatment, concluding that the
petitioner did not meet his burden of proof by clear, cogent, and convincing evidence. The
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commissioner stated, “I do not find in this case that the state has established a compelling state
interest. The behaviors of the respondent are difficult, but the interventions seem to work.” 3
RP at 52.
Motion for Revision
The State filed a motion for revision with the superior court. The superior court held a
hearing on the motion for revision. PR again did not appear and the court waived his
appearance. In addition to oral argument, the court reviewed the pleadings and transcript from
the earlier hearing. The court concluded that there was a compelling state interest in
administering antipsychotic medications and revised the commissioner’s order.
In its oral ruling, the superior court stated that the purpose of hospitalization was to
“provide an effective treatment that will lead to an improvement that will lead to a release.” RP
(May 8, 2020) at 21. The court continued:
The testimony was that he’s going to remain psychotic, which is the state that Dr.
Kumar described at least in the March-April time period if he’s not medicated. It
seems to me that the better course here would be to end the acute psychosis in an
effort to get him to the point where he can be treated conventionally with
psychotherapy and redirection.
RP (May 8, 2020) at 22.
The superior court entered findings of fact, conclusions of law, and an order authorizing
involuntary treatment with antipsychotic medications on a preprinted, standardized form. At the
beginning of the order the court stated:
[T]his Court GRANTS the Petitioner’s motion for revision and finds that the State
proved by clear, cogent, and convincing evidence that there exists a compelling
state interest that justifies overriding [PR’s] lack of consent to the administration of
antipsychotic medications, that the proposed treatment is necessary and effective,
and that medically acceptable alternative forms of treatment are not available, have
not been successful, or are not likely to be effective.
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No. 54643-4-II
Clerk’s Papers (CP) at 83. This language is nearly identical to the language in RCW
71.05.217(1)(j)(i).
Under “Findings of Fact,” the superior court found by clear, cogent, and convincing
evidence that there was a compelling state interest to administer antipsychotic medication and
checked the box for the preprinted finding that stated, “[PR] will likely be detained for a
substantially longer period of time, at increased public expense, without such treatment.” CP at
84. The court also made a supplemental finding on a line labeled “Other”:
The State has an interest in administering treatment that will allow [PR] a realistic
opportunity to improve in his mental condition and release from involuntary
hospitalization. This interest extends beyond simply keeping [PR] from harming
others, but allows the State to involuntarily administer medications to improve his
acute symptoms of psychosis. This interest outweighs [PR’s] desire not to be
treated with antipsychotic medication. The Court notes that the desired medications
may have potentially harmful adverse side effects.
CP at 85.
The superior court also found by clear, cogent, and convincing evidence using preprinted
language that “[a]ntipsychotic medication is a necessary and effective course of treatment” for
PR “as evidence[d] by [PR’s] prognosis with and without this treatment and the lack of effective
alternative courses of treatment.” CP at 85. The court found that the alternatives were less
effective than medication because “[t]hey are more likely to prolong the length of commitment
for involuntary treatment.” CP at 85. The court also made a supplemental finding on a line
labeled “Other”:
The Court finds that the State has a compelling interest in treating [PR] with the
end goal of allowing him to improve to the point that he may release to the
community and live independently. While less restrictive alternatives have
apparently been successful in keeping [PR] from overtly harming others, he is likely
to remain psychotic and his acute psychosis will not improve without treatment
with antipsychotic medications.
CP at 85.
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The court ordered that Dr. Kumar and WSH were authorized to administer Zyprexa and
Haldol at clinically appropriate levels to PR over his objections and express refusal.
PR appeals the superior court’s order.
ANALYSIS
A. LEGAL PRINCIPLES
1. Involuntary Commitment
The Involuntary Treatment Act (ITA), chapter 71.05 RCW, governs the temporary
detention for evaluation and treatment of persons with mental disorders as well as involuntary
treatment with antipsychotic medication.
Former RCW 71.05.320(4) (2018) states that after the initial 180-day period of
commitment, the person in charge of the facility in which a person is committed may file a new
petition for involuntary treatment on various grounds. Relevant here, a person may be
involuntarily recommitted for up to an additional 180 days if he or she continues to be gravely
disabled. Former RCW 71.05.320(4)(d), (6). Former RCW 71.05.020(22) (2019) defines
“gravely disabled” as a condition in which a person, due to 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.
Either definition of “gravely disabled” provides a basis for involuntary commitment. In re Det.
of LaBelle, 107 Wn.2d 196, 202, 728 P.2d 138 (1986).
In addition, a new petition for involuntary treatment may be filed when a person who:
(a) During the current period of court ordered treatment: (i) Has threatened,
attempted, or inflicted physical harm upon the person of another, or substantial
damage upon the property of another, and (ii) as a result of a mental disorder,
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No. 54643-4-II
substance use disorder, or developmental disability presents a likelihood of serious
harm.
Former RCW 71.05.320(4)(a) (emphasis added). The term “likelihood of serious harm” means:
(a) A substantial risk that . . . (ii) physical harm will be inflicted by a person 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; or (iii)
physical harm will be inflicted by a person upon the property of others, as evidenced
by behavior which has caused substantial loss or damage to the property of others;
or
(b) The person has threatened the physical safety of another and has a history of
one or more violent acts.
Former RCW 71.05.020(35) (2019).
The court in LaBelle emphasized that people cannot be involuntarily committed “solely
because they are suffering from mental illness and may benefit from treatment.” 107 Wn.2d at
207.
2. Involuntary Administration of Antipsychotic Medication
A person has a liberty interest in avoiding the unwanted administration of antipsychotic
medication under the due process clauses of the Fourteenth Amendment to the United States
Constitution and article I, section 3 of the Washington Constitution. In re Det. of B.M., 7 Wn.
App. 2d 70, 78 & n.3, 432 P.3d 459, review denied, 193 Wn.2d 1017 (2019). Other
constitutional provisions also may be implicated. Id. at 78 & n.4. However, the State can limit
this right if the state interest is sufficiently compelling and the proposed treatment is both
necessary and effective to further that interest. In re Det. of Schuoler, 106 Wn.2d 500, 508, 723
P.2d 1103 (1986).
In addition, a person who has been involuntarily committed on the grounds that he or she
is gravely disabled or presents a likelihood of serious harm as a result of a behavioral health
disorder has a statutory right to refuse antipsychotic medication. RCW 71.05.215(1); RCW
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No. 54643-4-II
71.05.217(1)(j).2 But the right to refuse consent to antipsychotic medication can be disregarded
and the medication can be administered involuntarily if certain requirements are met.
RCW 71.05.215(1) states that a person does not have the right to refuse consent if “it is
determined that the failure to medicate may result in a likelihood of serious harm or substantial
deterioration or substantially prolong the length of involuntary commitment and there is no less
intrusive course of treatment than medication in the best interest of that person.”
RCW 71.05.217(1)(j)(i) states that a court may order the administration of antipsychotic
medication if:
the petitioning party proves by clear, cogent, and convincing evidence that [1] there
exists a compelling state interest that justifies overriding the patient’s lack of
consent to the administration of antipsychotic medications or electroconvulsant
therapy, [2] that the proposed treatment is necessary and effective, and [3] that
medically acceptable alternative forms of treatment are not available, have not been
successful, or are not likely to be effective.
The court is required to “make specific findings of fact concerning: (A) The existence of one or
more compelling state interests; (B) the necessity and effectiveness of the treatment; and (C) the
person’s desires regarding the proposed treatment.” RCW 71.05.217(1)(j)(ii).
The Supreme Court in LaBelle emphasized that people cannot be involuntarily committed
“solely because they are suffering from mental illness and may benefit from treatment.” 107
Wn.2d at 207. The same rule necessarily applies to involuntary treatment with medication. A
court cannot order involuntary treatment with medication simply because such treatment would
be in the person’s best interest.
2
RCW 71.05.215 and RCW 71.05.217 both were amended in 2020, with an effective date after the
superior court’s order. The amendments to RCW 71.05.215 are not material to this case and the
amendments to RCW 71.05.217 primarily changed the numbering and lettering of the paragraphs.
Therefore, we cite to the current versions (as do the parties).
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3. Mootness
As the State concedes, the appeal of an order of involuntary administration of
antipsychotic medicine is not moot because such an order may have collateral consequences in
future proceedings. B.M, 7 Wn. App. 2d at 76-77.
B. COMPELLING STATE INTEREST
PR argues that the evidence was insufficient to support the superior court’s finding that
there was a compelling interest in preventing prolonged detention sufficient to override his right
to refuse consent for antipsychotic medications. We agree.
1. Standard of Review
We review challenges to the sufficiency of the evidence in the light most favorable to the
State. B.M., 7 Wn. App. 2d at 85. Substantial evidence generally is the quantum of evidence
sufficient to persuade a rational fact finder of the truth of the fact. In re Det. of T.C., 11 Wn.
App. 2d 51, 56, 450 P.3d 1230 (2019). But when the State bears the burden to prove its case by
clear, cogent and convincing evidence as required under RCW 71.05.217(1)(j)(i), a heightened
standard applies. In re Det. of L.K., 14 Wn. App. 2d 542, 550, 471 P.3d 975 (2020). The trial
court’s findings must be supported by evidence that makes the fact at issue highly probable. Id.
2. Legal Background
As noted above, RCW 71.05.217(1)(j)(i) requires that the superior court find “by clear,
cogent, and convincing evidence that there exists a compelling state interest that justifies
overriding the patient’s lack of consent to the administration of antipsychotic medications.”
Here, the superior court found that there was a compelling state interest in administering
antipsychotic medication to PR because he “will likely be detained for a substantially longer
period of time, at increased public expense, without such treatment.” CP at 84.
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The Supreme Court in Schuoler addressed the involuntary administration of
electroconvulsive therapy (ECT). 106 Wn.2d at 501. The court found that the testimony of two
doctors supported a finding of a compelling state interest in treating Schuoler with ECT. Id. at
508-09. The first doctor testified that “because of her disabilities and repeated admissions to
medical facilities Schuoler has constituted a tremendous financial burden for the state.” Id. at
509. The second doctor testified that “without treatment Schuoler ‘may end up in the back wards
of [a] state hospital, a helpless creature that nobody can ever take care of.’ ” Id. (citation
omitted) (alteration in original). Both doctors also testified that drug therapy was not helping,
and that ECT provided an 80 percent chance of recovery. Id.In B.M., the superior court commissioner made a finding of compelling state interest
identical to the superior court’s finding in this case: that B.M. “ ‘will likely be detained for a
substantially longer period of time, at increased public expense, without such treatment.’ ” 7
Wn. App. 2d at 75 (citation omitted). The court stated:
[O]ur Supreme Court [in Schuoler] identified as a compelling state interest the
prevention of prolonged detention at state expense that comes with “repeated
admissions to medical facilities” when without treatment an individual is unlikely
to recover and may end up in a state facility long-term. Schuoler, 106 Wn.2d at
509, 723 P.2d 1103. This is similar to the interest the commissioner identified here
that B.M. “will likely be detained for a substantially longer period of time, at
increased public expense, without such treatment.” As a result, Schuoler strongly
supports the conclusion that this is a compelling state interest.
Id. at 81 (citation omitted).
The court also relied on RCW 71.05.010, which stated the purposes of the ITA. Id. at 81-
82. The court stated, “The purposes of the Act support the conclusion that the State has a
compelling interest in preventing the indefinite commitment of an individual and an interest in
providing ‘timely and appropriate treatment.’ ” Id. at 82 (quoting RCW 71.05.010(1)). The court
concluded that the commissioner properly concluded that there was a compelling state interest in
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No. 54643-4-II
“involuntarily administering antipsychotics in order to prevent prolonged commitment.” Id. at
82.
Regarding sufficiency of the evidence, the court noted a doctor’s testimony that “if B.M.
did not start taking antipsychotic medication it was not likely that he could recover to the point
where he could be discharged.” Id. at 86. The court concluded that sufficient evidence showed
that “B.M. would be committed for a longer period of time if he was not involuntarily
medicated.” Id.
3. Applicable Standard
Both Schuoler and B.M. make it clear that avoiding a patient’s prolonged detention in a
state hospital can be a compelling state interest that justifies involuntary treatment with
antipsychotic medication. Schuoler, 106 Wn. 2d at 509; B.M. 7 Wn. App. 2d at 82. The issue
unresolved by these cases is how much longer a patient’s detention must be extended in order to
support a compelling state interest.
PR argues that the State must show more than that the patient likely will be detained
longer with administration of antipsychotic medication. Relying on Schuoler, he claims that the
standard should be whether without medication the patient likely would remain involuntarily
committed for the rest of his or her life or at least for some indefinite, long-term period. PR
emphasizes that there is no evidence here that he would never be discharged if he was not given
antipsychotic medications.
There was evidence in Schuoler that without treatment, the patient likely would be
confined to a state hospital indefinitely. 106 Wn.2d at 509. But the court never stated that such
evidence was necessary to support involuntary treatment with medication. And in B.M., there
was evidence that the patient might never be discharged if he did not take antipsychotic
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No. 54643-4-II
medication. 7 Wn. App. 2d at 86. But again, the court did not expressly require such evidence.
Therefore, these cases do not support requiring the State to show that the patient would be
committed for the rest of his life to obtain an involuntary treatment order.
PR also argues that before the State can show a compelling interest in preventing
prolonged commitment, it must establish that antipsychotic medication is the only remaining
option. He claims there must be a showing that other treatments had failed and that enough time
had passed to confirm that alternatives could not succeed. But he cites no authority for this
proposition. And in fact, no such evidence was presented in B.M., where the patient had only
been involuntarily committed for 17 days at the time the court entered the involuntary treatment
order. 7 Wn. App. 2d at 85.
At the other end of the spectrum, there is language in B.M. suggesting that a compelling
state interest exists if a patient’s detention will be prolonged for any period of time. The court
stated, “[T]he State presented sufficient evidence to establish that B.M. would be committed for
a longer period of time if he was not involuntarily medicated.” B.M. 7 Wn. App. 2d at 86.
(emphasis added). But the court did not expressly state that any prolonged detention would
support a finding of a compelling state interest.
We conclude that the appropriate standard to determine whether there is a compelling
state interest is whether the patient likely would be detained for a substantially longer period of
time or indefinitely without involuntary treatment with medication. The court in B.M. evaluated
and approved a superior court commissioner’s finding that B.M would be detained for a
substantially longer period of time. Id. at 81. And the court noted that one of the purposes of the
ITA, expressed in RCW 71.05.010(1)(b), supported the conclusion that preventing “indefinite”
commitment was a compelling state interest. Id. at 82. Finally, RCW 71.05.215(1) states that a
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No. 54643-4-II
person does not have the right to refuse consent to medication if the failure to medicate may
“substantially prolong the length of involuntary commitment.” (Emphasis added.)
What period of prolonged detention qualifies as “substantial” must be determined on a
case by case basis, based on all the relevant facts and circumstances. But evidence that the
patient’s detention merely will be prolonged for some unstated period of time is not sufficient to
establish the compelling state interest requirement.
4. Sufficiency of Evidence
Here, Dr. Kumar replied “[y]es” when asked if failure to administer antipsychotic
medication would “substantially prolong” PR’s detention at WSH. 3 RP at 31. But his only
other comment on the issue was the statement that “[i]f he’s not medicated the stay would be
prolonged.” 3 RP at 31.
Simply agreeing without explanation or elaboration that a patient likely would be
detained for a substantially longer period of time without medication is not sufficient to establish
a compelling state interest by clear, cogent, and convincing evidence. In order to satisfy the
stringent standard of proof, Dr. Kumar needed to state in at least general terms how long PR’s
detention likely would be prolonged if he did not take antipsychotic medication. Only then
would the trial court be able to evaluate whether the prolonged stay was substantial. Or he could
have stated that PR likely would be detained indefinitely or that it was likely that PR would
never be released from WSH without involuntary medication. This is the type of testimony that
is required to support a finding of compelling state interest.
Dr. Kumar was asked about PR’s prognosis if he did not take antipsychotic medication.
His answer may have provided some clarification regarding how long PR’s detention would be
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No. 54643-4-II
prolonged. But the transcript states that Dr. Kumar’s answer was inaudible, and therefore that
answer is not in our record.
Dr. Kumar did provide other testimony that was relevant to whether PR would be
detained for a substantially longer period of time if he did not take antipsychotic medication. Dr.
Kumar explained that PR’s symptoms of psychosis included multiple delusions, mood
fluctuations, multiple episodes of yelling and screaming at staff, and taking a swing at a staff
member. Dr. Kumar believed that PR would continue to engage in similar behaviors without
antipsychotic medication.
This testimony possibly could support an inference that PR would be detained for some
undetermined longer period of time without medication. But in light of the requirement in RCW
71.05.217(1)(j)(i) that the State establish a compelling state interest by clear, cogent, and
convincing evidence, we conclude that this evidence is insufficient to meet that standard.
We hold that there is insufficient evidence to support the superior court’s finding by
clear, cogent, and convincing evidence that PR likely would be detained for a substantially
longer period of time without involuntary treatment with the requested antipsychotic
medications. Therefore, the superior court erred in ordering involuntary treatment.
C. OTHER REQUIRED FINDINGS
Because we hold that the superior court erred in finding a compelling state interest, we
need not address the other requirements of RCW 71.05.217(1)(j)(i). However, we emphasize
that before ordering involuntary treatment with antipsychotic medication, the court must make
express, specific findings based on clear, cogent, and convincing evidence that (1) the “treatment
is necessary and effective,” and (2) “alternative forms of treatment are not available, have not
been successful, or are not likely to be effective.” RCW 71.05.217(1)(j)(i).
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CONCLUSION
We reverse the superior court’s order authorizing the involuntary treatment of PR with
antipsychotic medications.
MAXA, J.
We concur:
LEE, C.J.
SUTTON, J.
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