Arizona Court of Appeals Holds Division One That Absent a Showing of True Necessity, Based on Unavailability, Telephonic Testimony of a Doctor at a Hearing for Court-Ordered Treatment Violates the Patient’s Rights.

In a hearing on a Petition for Court-Ordered Treatment of Appellant, one of the testifying doctors testified telephonically.  During his testimony he explained to the trial court that he was attending a mandatory resident training program in Phoenix.  The hearing was held in Mesa.  Appellant objected and asked that the doctor be required to testify in person.  The court denied the request but made no factual findings regarding the doctor’s availability.  The court found by clear and convincing evidence that Appellant was suffering from a mental disorder and ordered treatment.  Appellant timely appealed. 

The Arizona Appeals Court vacated the order of involuntary treatment, holding that the trial court committed reversible error when it permitted one of the testifying doctors to appear telephonically when that doctor was present in the greater metropolitan area where the hearing occurred and the State had not demonstrated that the doctor was unavailable to appear in person. 

Under A.R.S. § 36-539(B), the evidence at a hearing on a petition for court-ordered treatment must include testimony from two witnesses acquainted with the patient at the time of the alleged mental disorder and the testimony of two physicians who performed examinations of the patient.  The Court explained that a two-pronged test is used to determine if telephonic testimony is admissible:  the telephonic testimony must be necessary to further an important public policy, and the reliability of the testimony must otherwise be assured.  The Court found that no question regarding the reliability of the testimony was at issue.  Regarding the necessity of the telephonic appearance, the Court found that the State had not demonstrated, and the trial court had made no factual findings regarding, the unavailability of the testifying doctor.  The Court noted that the right to confrontation in these hearings is “similar” to that under the Confrontation Clause of the United States Constitution.  Accordingly, the Court held, in the absence of a showing of necessity, the telephonic appearance violated Appellant’s rights.   

Judge Orozco authored the opinion, Judges Brown and Norris concurred.