In Re: MH 2006-000749 – 2/13/2007

February 23, 2007

Arizona Court of Appeals Division One Holds That a Patient Has the Power to Waive Attendance at an Involuntary Treatment Hearing, but the Patient’s Waiver Is Ineffective Unless the Superior Court Expressly Finds that it Is Given Knowingly and Intelligently.

A medical doctor and a clinical liaison petitioned the superior court for an involuntary mental health evaluation of Appellant. After Appellant had been evaluated, another medical doctor filed a petition asking that Appellant be compelled to undergo treatment. In Response to the second petition, the trial court issued a “Detention Order for Treatment and Notice,” and set a hearing pursuant to A.R.S. § 36-539 (2003). Under A.R.S. § 36-539(B), “[t]he patient and his attorney shall be present at all hearings . . . .” Accordingly, the Appellant was detained in an annex to the Maricopa Medical Center pending the hearing concerning the court-ordered treatment. After the Appellant did not appear for the May 1 hearing, notwithstanding her detention, the trial court sua sponte called the court’s transportation officer to testify about Appellant’s absence after her court-appointed counsel could not explain Appellant’s absence. The officer conveyed that he had told Appellant she did not have to go to court if she did not want to, but that he was the person who would take her if she wanted to go. Appellant said (twice) that she could not go with him because she did not know him.

The trial court found Appellant had voluntarily waived her presence, explaining that it would not “force a person to come and aggravate any potentially already fragile situation.” Although recognizing that involuntary treatment by court order is “a serious deprivation of liberty,” the Court of Appeals agreed that a patient could – as with most other rights – waive the right to be present at a hearing. The Court of Appeals further explained that “although the words ‘shall be present’ in section 36-539(B) seem to require the patient’s presence at all hearings, because the purpose of the statute is to grant the patient a right, the statutes does not preclude the patient from waiving that right by voluntarily choosing not to appear at a hearing.” The Court further explained that although a patient has the power to waive attendance at an involuntary treatment hearing, the patient’s waiver is ineffective unless the superior court expressly finds that it is given knowingly and intelligently. In this case, the evidence did not support the superior court’s conclusion that Appellant knowingly and intelligently waived her right to be present. The Court of Appeals, therefore, remanded for a new hearing on that issue.

The decision was authored by Judge Johnsen (her first civil opinion); Judges Timmer and Norris concurred.