IN RE PIMA COUNTY MENTAL HEALTH NO. 20200860221
No. CV-22-0057-PR
SUPREME COURT OF THE STATE OF ARIZONA
August 16, 2023
252 Ariz. 442 (App. 2022)
CHIEF JUSTICE BRUTINEL
COUNSEL:
Molly Pettry (argued), Pima County Mental Health Defender, Attorney for Appellant
Rachel H. Mitchell, Maricopa County Attorney, Joseph J. Branco, Deputy County Attorney, Attorneys for Amicus Curiae Dr. Carol Olson
CHIEF JUSTICE BRUTINEL authored the Opinion of the Court, in which VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY, and BERCH (RETIRED)* joined.
* Justice Kathryn Hackett King is recused from this case. Pursuant to
CHIEF JUSTICE BRUTINEL, Opinion of the Court:
¶1 A petition for court-ordered treatment must be accompanied by the affidavits of two evaluating physicians;
I. BACKGROUND
¶2 In February 2021, G.B. sought treatment at St. Mary‘s Hospital for gastrointestinal complaints. At that time, G.B. was seventy years old and weighed approximately eighty-three pounds; she was diagnosed with a delusional disorder, malnutrition, and cachexia.1 According to a social worker at St. Mary‘s, G.B. believed the doctors were “trying to harm her.” G.B. insisted on being discharged, but her medical team felt she had not made any progress and that her weight was “in a dangerous area.” Because of those concerns, on March 3, 2021, the social worker filed an application for an involuntary evaluation of G.B., alleging she was persistently or acutely disabled (“PAD“). On March 4, 2021, a Title 36 (involuntаry commitment) coordinator for a local screening agency evaluated G.B., prepared a pre-petition screening report, and concluded that “the PAD standards [were] met and that the involuntary evaluation process should proceed.”
¶3 A petition for court-ordered evaluation of G.B. was filed on March 5, 2021, and the superior court signed an order for evaluation the same day. Pursuant to that order, G.B. was transferred to an inpatient psychiatric unit at Banner – University Medical Center South (“Banner“), where psychiatrists Dr. Madan and Dr. Colon evaluated her on March 10, 2021. Banner then filed a petition for court-ordered treatment, alleging that G.B. was PAD and requesting both inpatient and outpatient treatment. Banner attached to the petition two sets of three, stapled-together documents as the statutorily required аffidavits of Drs. Colon and Madan. Each set related to a specific doctor and contained: (1) a signed and sworn “Physician‘s Affidavit,” consisting of a two-page, fill-in-the-blank form with boilerplate language that named G.B. as the patient but neither discussed any specific examinations or evaluations conducted by the physician nor referred to any attached addenda, reports, or evaluations; (2) an “Addendum No. 1—Persistently or Acutely Disabled” (“Addendum“), a two-page, generic, fill-in-the-blank form referencing G.B. but devoid of reference to any affidavits, reports, or evaluations; and (3) a “Final Report,” presenting the physician‘s notes and findings based on each physician‘s March 10, 2021 evaluation. Banner contends that these documents together fulfill
¶4 At the hearing on the petition, G.B.‘s counsel stipulated to the admission of Dr. Colon‘s Physician‘s Affidavit, Addendum, and Finаl Report in lieu of Dr. Colon‘s testimony. G.B‘s counsel did not object to the admission of Dr. Madan‘s Physician‘s Affidavit, Addendum, and Final Report, or to the application for involuntary evaluation prepared by the
¶5 In a split decision, the court of appeals vacated the trial court‘s order. Id. at 447 ¶ 16. The majority found that involuntary-treatment proceedings require strict statutory compliance and determined that the affidavits of Drs. Colon and Madan failed to comply with
¶6 The dissent would have affirmed the trial court‘s order, arguing that the evidence “complies with the purpose, intent, and requirements of
¶7 We granted review to provide guidance on the requirements imposed by
II. DISCUSSION
¶8 We are asked to decide whether a physician‘s affidavit complies with
A. Mootness
¶9 “The Arizona Constitution omits a ‘case or controversy’ requirement akin to the one contained in its federal counterpart.” Welch v. Cochise Cnty. Bd. of Supervisors, 251 Ariz. 519, 523 ¶ 12 (2021). Therefore, this Court is not prohibited from considering moot issues. Id. This Court has, however, “consistently held that it will refrain from considering moot or abstract questions. We make an exсeption, however, to consider a question of great public
B. Guidance For § 36-533(B) Compliance
¶10 To subject a person to involuntary commitment, the petitioner must adhere to the statutory requirements, which detail what the petition must allege and the supporting documentation required. See generally
¶11 Although the court of appeals held that
¶12 Section
The petition shall be accompanied by the affidavits of the two physicians who participated in the evaluation . . . . The affidavits of the physicians shall describe in detail the behavior that indicates that the person, as a result of mental disorder, is a danger to self or to others or has a persistent or aсute disability or a grave disability and shall be based on the physician‘s observations of the patient and the physician‘s study of information about the patient. A summary of the facts that support the allegations of the petition shall be included. The affidavit shall also include any of the results of the physical examination of the patient if relevant to the patient‘s psychiatric condition.
¶13 Here, the Physicians’ Affidavits that accompanied the petition did not comply
¶14 The attached Addenda and Final Reports (“Attachments“) are also insufficient under
¶15 No Arizona case has decided whether courts may consider contents of an attachment to an affidavit if the affidavit specifically incorporates the report by reference. However, other states recognize incorporation by reference to supplement a petition for involuntary treatment. Thе Montana Supreme Court,2 California Supreme Court, and Wisconsin Court of Appeals have each recognized incorporation by reference in the involuntary treatment context. See In re S.D., 422 P.3d 122, 123 ¶¶ 2-3 (Mont. 2018) (determining the sufficiency of a petition for commitment and considering the contents of a physician‘s report that were expressly incorporated in the petition); People v. Barrett, 281 P.3d 753, 766 (Cal. 2012) (allowing medical center records to be incorporated by reference into the petition for involuntary commitment); In re Mental Commitment of D.D.A., 954 N.W.2d 755, 758 ¶ 9 n.6 (Wis. Ct. App. 2020) (determining whether statutory requirements for recommitment were satisfied and considering the contents of a physician‘s letter that were expressly incorporated in the petition).3
¶16 Similarly, Arizona courts, statutes, and our Rules of Civil Procedure recognize incorporation by reference in other contexts. Arizona caselaw recognizes incorporation by reference in contracts and warrants. See, e.g., Indus. Comm‘n v. Ariz. Power Co., 37 Ariz. 425, 431 (1931) (“It has long been settled, without a dissenting voice, that parties may incorporate into agreements by mere reference other writings or agreements or records and thereby make the latter an essential part of their contract.“); State v. Terrell, 156 Ariz. 499, 502 (App. 1988) (finding the statement that items “more fully described in the affidavit” had “clearly incorpоrate[d] the affidavit descriptions into [a] search warrant“). The Arizona Revised Statutes permit incorporation of extrinsic documents in wills,
¶17 Accordingly, we hоld that in determining whether a petition for court-ordered treatment complies with statutory requirements, courts may consider contents of an extrinsic document attached to an affidavit if the affidavit specifically incorporates the attachment by reference. To incorporate an extrinsic document into a
¶18 Again, although an affidavit may expressly incorporate an attached report by reference such that the attachment‘s contents are included in the referencing affidavit, it remains best practice to provide all the statutorily required information in the affidavit itself. Providing all the information required by
C. Waiver And Fundamental Error
¶19 Because the Physicians’ Affidavits and Attachments Banner submitted with its petition for court-ordered treatment did not comply with the
At oral argument, G.B.‘s attorney acknowledged that she failed to object to the sufficiency of the Physicians’ Affidavits for strategic reasons — because she did not want to delay the commitment proceedings further and potentially prolong her client‘s inpatient treatment by drawing the error to the court‘s and opposing counsel‘s attention. Had she done so, the County likely could have cured the defects, thereby avoiding any error altogether. G.B. should not benefit from such conduct, and we disapprove of such gamesmanship.
¶20 Because G.B. waived her objection to the sufficiency of the Physician‘s
¶21 In conducting fundаmental error review, we identify (1) “whether trial error exists” and (2) “whether the error is fundamental” under “the totality of the circumstances.” State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018). For the reasons previously explained, the trial court erred in finding that the Physicians’ Affidavits complied with
¶22 We do not find fundamental, prejudicial error because the trial court‘s error did not deprive G.B. of a fair opportunity to oppose the petition for involuntary treatment or to otherwise receive a fair hearing. At the commitment hearing, Dr. Madan testified about his Physician‘s Affidavit and was cross-examined by G.B. about his opinions. Although Dr. Colon did not testify, his Physician‘s Affidavit and Final Report were admitted in lieu of testimony, per the parties’ stipulation. See
III. CONCLUSION
¶23 We vacate the court of appeals’ opinion and affirm the trial court‘s order.