NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                              IN RE MH2018-00006

                             No. 1 CA-MH 18-0016
                               FILED 12-18-2018


            Appeal from the Superior Court in Navajo County
                        No. S0900MH201800006
          The Honorable David Joseph Martin, Judge Pro Tempore

                                   VACATED


                                    COUNSEL

Criss Candelaria Law Office P.C., Concho
By Criss E. Candelaria
Counsel for Appellant

Navajo County Attorney’s Office, Holbrook
By Jason S. Moore
Counsel for Appellee Changepoint Psychiatric Hospital
                          IN RE MH2018-00006
                          Decision of the Court


                        MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.


P E R K I N S, Judge:

¶1            Appellant D.M. appeals the superior court’s order for mental
health treatment pursuant to Arizona Revised Statutes (“A.R.S.”) section
36-540. D.M. argues there was insufficient evidence to support the court’s
treatment order and that the court prevented her from “properly”
presenting evidence her psychological symptoms were the result of a
physical condition. We agree that the statutorily required evidence was
insufficient and vacate the order for civil commitment.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           In January 2018, Appellee Changepoint Psychiatric Hospital
(“Changepoint”) petitioned the superior court to order a psychological
evaluation of D.M. Several days later, Changepoint filed a petition for
court-ordered treatment alleging D.M. was persistently or acutely disabled
and required involuntary inpatient and outpatient treatment. The superior
court held an evidentiary hearing on Changepoint’s petition and ordered
D.M. submit to a period of involuntary treatment by Changepoint, not to
exceed 365 days, including up to 180 days of inpatient treatment at
Changepoint’s facility. D.M. appealed in February 2018, but we remanded
the case to the superior court because no transcript of the January
evidentiary hearing was available.

¶3             The parties stipulated to a narrative statement pursuant to
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 11(d). According to
the parties’ stipulation, Dr. Tilyou, Dr. Worthen, Karen Alexander, Sandra
Lewis, Loraine Showalter, and D.M. testified at the hearing. Dr. Tilyou, a
psychiatrist, testified that he attempted to evaluate D.M. remotely using
TeleMed, a video conference service, but was unable to do so. Nevertheless,
Dr. Tilyou submitted an Affidavit of Examining Physician, which the court
admitted as an exhibit at the January hearing.

¶4             According to Dr. Tilyou’s summarized testimony and
affidavit, Dr. Tilyou attempted to interview D.M. via TeleMed in an exam
room at Changepoint hospital. When D.M. refused to come to the exam



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room, Dr. Tilyou had a Changepoint technician bring a laptop to the “quiet
room” where D.M. was sitting. Dr. Tilyou attempted to speak with D.M.
but she walked away and returned to her room. The technician then went
to D.M.’s room and attempted to speak with D.M. about the purpose of the
evaluation. Dr. Tilyou’s affidavit explains that D.M. insisted the technician
leave and, when the technician began to explain the purpose of the
evaluation at Dr. Tilyou’s insistence, D.M. “began yelling that she had
constitutional rights” and the technician left D.M.’s room. Dr. Tilyou made
no further attempts to examine D.M. Instead, Dr. Tilyou submitted his
affidavit based entirely on an examination of the written records from
Summit Hospital, Changepoint, and Dr. Worthen. In his affidavit, Dr.
Tilyou diagnosed D.M with psychosis and opined she was acutely or
persistently disabled due to that psychosis.

¶5            Dr. Worthen also submitted an Affidavit of Examining
Physician in which he opined that D.M. was acutely or persistently disabled
due to psychosis. Dr. Worthen testified he had personally examined D.M.
and, based on his evaluation and review of her medical records, had
diagnosed D.M. with psychosis. Dr. Worthen further testified he
participated in preparing a treatment plan for D.M., that D.M. had episodes
at Changepoint hospital where she would slam doors, yell, use foul
language, and once put a hole in a wall. Despite D.M.’s outbursts, Dr.
Worthen indicated he had personally evaluated D.M. and that others,
including a Changepoint physician’s assistant and a Changepoint social
worker, had also personally examined D.M.

¶6             D.M.’s half-sisters, Alexander and Showalter, testified to
D.M.’s personal and family history, including D.M.’s prior work as a
musician, her social media posts, and serious damage to D.M.’s personal
property the two discovered when visiting D.M.’s home in December 2017.
Alexander also testified that she and Showalter had D.M. execute a quit
claim deed giving Alexander and Showalter her home. Alexander further
testified that she and Showalter had been paying D.M.’s utility bills for
several months prior to December 2017. Finally, Lewis, Changepoint’s
social worker, testified that she prepared the treatment plan for D.M. and
had met with D.M. several times. After the parties filed their stipulated
reconstruction of the record, we reinstated D.M.’s appeal.

                              DISCUSSION

¶7           Governmental power to commit an ordinary citizen
involuntarily to confined treatment in a mental hospital implicates a
“massive curtailment of liberty” as well as the potential for “adverse social


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consequences” and thus requires adequate due process protections. Vitek v.
Jones, 445 U.S. 480, 491–92 (1980) (citations omitted). We do not review this
application of Arizona’s process lightly.

¶8             A court shall order an individual to undergo involuntary
treatment if it finds, by clear and convincing evidence, the individual is
acutely or persistently disabled due to mental illness. A.R.S. § 36-540(A).
We will affirm an involuntary treatment order supported by substantial
evidence and will not set aside the superior court’s findings unless they are
clearly erroneous. In re Appeal in Pima Cty. Mental Health Serv. Action No.
MH-1140-6-93, 176 Ariz. 565, 566 (App. 1993) (explaining we will affirm on
substantial evidence); In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 13 (App.
2007) (explaining we will set aside clearly erroneous or unsupported factual
findings). Here, the record includes evidence from Dr. Worthen and D.M.’s
half-sisters, as well as testimony from D.M. herself, which indicates D.M.
was likely suffering from mental illness when the court entered its
involuntary treatment order. However, D.M.’s actual mental status is not
directly at issue; instead, D.M. has challenged Changepoint’s statutory
compliance with Arizona’s involuntary commitment process.

¶9            We review the interpretation and application of statutes de
novo. In re M.H. 2007-001236, 220 Ariz. 160, 165, ¶ 15 (App. 2008). Moreover,
we strictly construe the statutory requirements in civil commitment cases
because, as noted, such proceedings could result in a serious deprivation of
the appellant’s constitutional liberty interests. Id.; see also In re MH 2006-
000490, 214 Ariz. 485, 488, ¶ 10 (App. 2007). When the petitioner fails to
strictly comply with the statutory requirements in an involuntary treatment
case, the proceedings are void. See In re Burchett, 23 Ariz. App. 11, 13 (1975).

¶10           A petition for court-ordered treatment is governed by A.R.S.
§ 36-533, which requires, inter alia, “affidavits of the two physicians who
participated in the evaluation . . . .” (emphasis added). Section 36-533(B)
further requires the physicians’ affidavits to “describe in detail the behavior
that indicates that the person, as a result of mental disorder . . . has a
persistent or acute disability . . . and shall be based on the physician’s
observations of the patient and the physician’s study of information about
the patient.” (emphasis added). As relevant here, an evaluation is “[a]
professional multidisciplinary analysis . . . carried out by a group of persons
consisting of not less than the following: (i) [t]wo licensed physicians . . .
who shall examine and report their findings independently.” A.R.S. § 36-
501(12)(a). In this case, only Dr. Worthen observed and examined the
patient.



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¶11           In contrast, Dr. Tilyou did not observe the patient for any
significant length of time and did not examine the patient. Instead, Dr.
Tilyou based his affidavit on written records from Changepoint, including
Dr. Worthen’s examination. Thus, Dr. Tilyou did not independently
observe or examine D.M. nor did Dr. Tilyou provide an independent report
on D.M.’s condition, in violation of A.R.S. § 36-501(12) and § 36-533(B). See
M.H. 2007-001236, 220 Ariz. at 166–67, ¶ 19 (explaining a doctor’s affidavit
does not meet the statutory requirements where the doctor concedes he
could not perform a full psychiatric evaluation and did not, in fact, examine
the patient); see also In re MH2011-000914, 229 Ariz. 312, 315, ¶ 10 (App.
2012) (holding that a “hurried attempt to interview” a patient does not
constitute an examination of the patient and renders the doctor’s affidavit
deficient as a matter of law). Tellingly, Dr. Tilyou’s affidavit includes
several sections in which he notes he was “unable to assess” core aspects of
D.M.’s mental health. For example, Dr. Tilyou noted he was “unable to
adequately assess” D.M.’s emotional process, “unable to fully assess” her
thought and cognition, and “unable to assess” her memory. Given our strict
adherence to statutory compliance in this area, significant gaps in Dr.
Tilyou’s affidavit, and Dr. Tilyou’s failure to independently examine and
report on D.M.’s condition, we hold that his affidavit is insufficient under
§ 36-533(B).

¶12           Changepoint asserts that Dr. Tilyou made three attempts to
meet with D.M., however, the record, including Dr. Tilyou’s affidavit,
contradicts this assertion. Dr. Tilyou attempted to examine D.M. remotely
and, when she would not come to the examination room, had a technician
bring a laptop to D.M. in a “quiet room.” When D.M. left the “quiet room”
and went to her own room, Dr. Tilyou had the technician follow D.M. with
the laptop. It is unclear from the record exactly how long Dr. Tilyou
persisted in his examination attempt, but it is clear that the entire episode
occurred over a continuous period on a single day. Dr. Tilyou did not
attempt to examine D.M. at any other point in that day or on another day.
Moreover, contrary to Changepoint’s assertion, the record does not indicate
that D.M. affirmatively rejected a second examination, only that she became
distressed after a technician carrying a laptop followed her around the
hospital and into her room.

¶13           Changepoint contends that Dr. Tilyou did not have to make
additional attempts to examine D.M. because of her resistance during his
apparently brief attempt to examine her. Relying on In re Appeal in Pima Cty.
Mental Health Serv. Action No. MH-1140-6-93, Changepoint argues that the
law does not require a physician to “engage in a confrontation with a
mentally ill patient or have the patient physically restrained” to conduct a


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                            Decision of the Court

psychiatric evaluation. 176 Ariz. 565, 567–68 (App. 1993). MH-1140-6-93
explored the statutory requirement that a patient be informed about
treatment options and alternatives with respect to a non-compliant patient
who repeatedly thwarted multiple attempts at this communication. The
MH-1140-6-93 court, in creating this exception to the statutory requirement
to inform the patient, did not contemplate its extension to the separate
statutory mandate that the patient’s mental health be independently
examined by two physicians.

¶14           Unlike the express statutory examination requirements in
§ 36-501(12), the requirement that a patient be informed of advantages,
disadvantages, and alternatives to proposed treatment stem from former
§ 36-501(29) (currently § 36-501(32)(b)). Section 36-501(32)(b) provides that
a person is persistently or acutely disabled if, in relevant part, they suffer
from a severe mental disorder that “causes the person to be incapable of
understanding and expressing an understanding of the advantages and
disadvantages of accepting treatment” after being informed of those
advantages and disadvantages. Such incapacity could be discerned by
physicians examining a patient pursuant to § 36-501(12) and thus,
physicians could potentially comply with the statute without successfully
discussing the matter with a hostile patient. See MH-1140-6-93, 176 Ariz. at
567–68. It is unclear how a physician could independently ascertain the
presence or absence of severe mental illness in a person absent an
examination or, at a minimum, significant observations of an uncooperative
patient.

¶15            Similarly, in In re MH2015-003266, we held that the physical
examination requirement may be excused in a case where a patient had
refused physical examination two days prior to his psychiatric
examinations, while incarcerated. 240 Ariz. 514, 516, ¶¶ 10–12 (App. 2016).
In that case, we affirmed a treatment order where the affiant physicians had
failed to even attempt a physical examination of the patient but “both
physicians completed the psychiatric portion of the evaluation based on an
in-person interview.” 240 Ariz. at 516, ¶ 11. The physicians testified that the
patient was “agitated, largely nonverbal and uncooperative [] during the
psychiatric evaluations.” Id. at ¶ 12. They also testified the patient was
“wearing restraints due to his previous volatile, aggressive behavior” and
that during one of the interviews the patient “was pulling at his handcuffs.”
Id. From the record in In re MH2015-003266, it is clear that the patient
refused a physical examination and was openly hostile, to the point of
dangerousness, to his examining psychiatrists.




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¶16            Our holding in MH2015-003266 is consistent with prior case
law excusing compliance with physical examinations. Further, and key to
this decision, that holding indicates that excusing compliance with the core
psychiatric examination requirements of § 36-533(B) and § 36-501(12) would
be a fundamental expansion of our prior holdings. Despite significant
resistance by the patient in MH2015-003266, the physicians in that case were
able to meet the core requirements of the statutory scheme by completing
two independent psychiatric examinations of the patient. This is not to say
a patient can avoid a mental health treatment order in perpetuity by
repeatedly frustrating efforts to complete the required examinations; that
situation is not before us. Ultimately, because we require strict statutory
compliance in involuntary mental health treatment cases, close cases
should be resolved in favor of the individual’s fundamental liberty interests
and not the government’s attempts to severely curtail those interests. See In
re Burchett, 23 Ariz. App. at 13 (holding a mental health treatment order
void absent strict statutory compliance).

¶17           In any event, the record here does not suggest Dr. Tilyou
would have needed to “engage in a confrontation” to conduct a psychiatric
examination of D.M. Dr. Worthen, Lewis, and a physician’s assistant had
all successfully met with D.M. at various times in the days preceding Dr.
Tilyou’s attempted examination. Given these successful interactions and
Dr. Tilyou’s fleeting attempt, the record does not demonstrate that D.M.’s
behavior made additional attempts to conduct an examination futile.

¶18           Dr. Tilyou did not conduct an independent examination in
accordance with § 36-533(B) and § 36-501(12). Consequently, Dr. Tilyou
submitted an affidavit devoid of key descriptions of observed behavior
supporting his conclusion that D.M. was persistently or acutely disabled.
Dr. Tilyou’s affidavit did not comply with the statute and the evidence was
accordingly legally insufficient to order involuntary treatment. Cf. Matter of
Commitment of Alleged Mentally Disordered Person, 181 Ariz. 290, 293 (1995)
(noting, in the context of a different component of the evaluation
requirement, that “the statute is tightly drawn to avoid situations such as
this, where the patient appears to have been committed primarily on the
opinion and observations of one psychiatrist.”).




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                      CONCLUSION

¶19   Based on the foregoing, we vacate the treatment order.




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




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