Arizona Court of Appeals Division One Holds That A Court Must Ensure That a Patient has Voluntarily, Knowingly and Intelligently Waived His Statutory Right to a Hearing to Contest Court-Ordered Mental Health Treatment.

In July 2007, G.M. was taken into custody for an involuntary mental health evaluation and a petition for court-ordered treatment was subsequently filed.  Pursuant to A.R.S. § 36-539, a hearing (“539 Hearing”) was scheduled in order to allow G.M. to contest the petition.  At the scheduled time, counsel for G.M. informed the Court that G.M. waived his right to a hearing.  Without conducting a colloquy with G.M. or ensuring from the record that the waiver was voluntary, knowing, and intelligent, the Court ordered treatment based on his review of the record.  G.M. appealed.

The Arizona Appeals Court remanded, holding that due process requires a court to determine either through a colloquy with a patient or by review of the record whether a patient’s waiver of a 539 Hearing is voluntary, knowing, and intelligent before giving effect to that waiver.  The Court explained that “[t]he general rule is that a waiver is not effective unless it is given voluntarily and intentionally” and looked to standards in criminal cases to examine whether a waiver can occur.  The Court also relied on its previous holdings that a patient’s waiver of the right to be present at a hearing or right to be represented by counsel is ineffective absent an express finding that the waiver is voluntary, knowing, and intelligent.

The Court rejected the State’s argument that G.M. did not waive his right to a hearing, and instead “stipulated” to submit the matter on the record, explaining that regardless of the characterization the voluntariness issue remains.  Similarly, the Court rejected the State’s “invited error” argument because there was no evidence that G.M. knowingly, voluntarily, and intelligently agreed to his counsel’s actions.  Finally, the Court rejected the State’s argument that its holding would require a voluntariness inquiry in other types of civil cases.  It explained that its decision was limited to mental health cases in which a patient’s ability to voluntarily, knowingly, and intelligently waive his rights was already suspect, and noted that there had been no untoward consequences resulting from the prior decisions requiring a voluntariness inquiry for waivers of the right to appear or right to counsel.

Presiding Judge Kessler authored the opinion; Judges Orozco and Portley concurred.