* In Re The Detention Of C.a.c.

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STATE OF WASHiNGi ox

2OIBNOV 26 AM 9:37

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of DIVISION ONE
C.A.C., No. 77173-6-l

Appellant. PUBLISHED OPINION

Sun ee me eet See Sn

FILED: November 26, 2018

Dwyer, J. — C.A.C. appeals from a 14-day involuntary treatment
commitment order. C.A.C. contends that the designated mental health
professional who recommended his initial detention did not fulfill the requirement
of a statute that required a designated mental health professional to “consult with
any examining emergency room physician regarding the physician’s observations
and opinions relating to the person’s condition.”' We disagree and affirm.

|

On June 20, 2017, Jennifer Palmer, a designated mental health
professional (DMHP), received a referral regarding C.A.C. while C.A.C. was
staying in his father's home. When Palmer arrived, she found that C.A.C. had
barricaded himself in the home and refused to leave, leading Palmer to request
police assistance. After police arrived, Palmer evaluated C.A.C. in the home

without a physician present. Palmer directed that C.A.C. be placed in emergency

1 Former RCW 71.05.1584 (2013).

No. 77173-6-I/2

custody for no more than 72 hours pursuant to former RCW 71.05.153 (2015).
C.A.C. was taken to Fairfax Hospital.

Within the 72 hour-period, Sonja Kottke, a psychiatric advanced registered
nurse practitioner at Fairfax Hospital, filed a petition in superior court, requesting
a 14-day commitment for involuntary treatment. C.A.C. moved to dismiss the
petition on the ground that the DMHP had violated former RCW 71.05.154
(2013) by not consulting with an emergency room physician before
recommending detention. The trial court heard arguments on this motion and
denied it, reasoning that former RCW 71.05.154 did not “create{] an affirmative
obligation [for a DMHP] to seek out an emergency room physician where the. . .
investigation .. . is happening in the field.”

After denying C.A.C.’s motion, the trial court held a probable cause
hearing as to the 14-day involuntary treatment petition pursuant to RCW
71.05.240. The trial court ordered the commitment. C.A.C. appeals from that
order.

i

C.A.C. avers that Palmer violated former RCW 71.05.154 by not

consulting with an emergency room physician before making the decision to

detain him. He contends that this failure amounted to a total disregard of the

2 Former RCW 71.05.154 was amended effective April 1, 2018, removing the language
“must consult with any examining emergency room physician regarding the physician's
observations and opinions relating to the person’s condition, and whether, in the view of the
physician, detention is appropriate” at issue herein. The current statute requires the designated
crisis responder to take serious consideration of “observations and opinions by an examining
emergency room physician, advanced registered nurse practitioner, or physician assistant.”
RCW 71.05.154 (2018).

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No. 77173-6-1/3

requirements of the involuntary treatment act (ITA)* and, thus, that his detention
was unlawful. We disagree.*

The meaning of the statute is a question of law that we review de novo.°
State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). The statutory
language at issue herein is part of the statutory scheme of the ITA.

When construing the requirements of this chapter the court must

focus on the merits of the petition, except where requirements have

been totally disregarded, as provided in In re C.W., 147 Wn.2d 259,

281 (2002). A presumption in favor of deciding petitions on their

merits furthers both public and private interests because the mental

and physical weil-being of individuals as well as public safety may

be implicated by the decision to release an individual and

discontinue his or her treatment.
Former RCW 71.05.010(2) (2015).®

Pursuant to former RCW 71.05.153(1) (2015),’ a “designated mental
health professional” who received “information alleging that a person, as the
result of a mental disorder, presents an imminent likelihood of serious harm, or is

in imminent danger because of being gravely disabled . . . may take such person,

or cause by oral or written order such person to be taken into emergency custody

3Ch. 71.05 RCW.

4 The parties agree that this issue is not moot and is properly before us on review. See
In re Det. of M.K., 168 Wn. App. 621, 626, 279 P.3d 897 (2012) (“[E]ach commitment order has a
collateral consequence in subsequent petitions and hearings, allowing us to render relief if we
hold that the detention under a civil commitment order was not warranted.")

5 in making our determination, we are not bound by prior decisions of other divisions of
the Court of Appeals. In re Pers. Restraint of Arnold, 190 Wn.2d 136, 138, 410 P.3d 1133 (2018).

& RCW 71.05.0410 was subsequently amended effective Apri! 1, 2018, to extend its scope
to persons with substance use disorders. No changes were made to the language of RCW
71.05.010(2). See RCW 71.05.010 (2018).

7 RCW 71.05.153 was subsequently amended effective April 1, 2018. The changes to
RCW 71.05.153(1) consist solely of replacing the term “designated mental health professional"
with “designated crisis responder." See RCW 71.05.153(1) (2018).

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No. 77173-6-I/4

in an evaluation and treatment facility for not more than seventy-two hours.” In

turn, former RCW 71.05.154 provided that:

A [DMHP] conducting an evaluation of a person under RCW
71.05.150 or 71.05.153 must consult with any examining
emergency room physician regarding the physician’s observations
and opinions relating to the person’s condition, and whether, in the
view of the physician, detention is appropriate. The [DMHP] shall
take serious consideration of observations and opinions by
examining emergency room physicians in determining whether
detention under this chapter is appropriate. The [DMHP] must
document the consultation with an examining emergency room
physician, including the physician’s observations or opinions
regarding whether detention of the person is appropriate.

Division Two has held that former RCW 71.05.154 required a DMHP to
consult with an emergency room physician every time a decision to detain is

made. See In re Detention of K.R., 195 Wn. App. 843, 846, 381 P.3d 158

(2016). The respondent in that case had been taken to a hospital® but had then
been transferred to a rehabilitation center wherein the DMHP consulted with a
registered nurse and a certified rehabilitation counselor. K.R., 195 Wn. App at
845-46. The DMHP subsequently petitioned for a 72-hour detention. K.R., 195
Wn. App at 846. In holding that K.R.’s detention was improper, Division Two
rejected an interpretation of former RCW 71.05.154 that would not require
DMHPs to consult with physicians where none were available.

At oral argument, the State argued that because RCW 71.05.153

allows a person to be taken to places other than a hospital, a

DMHP is not actually required to consult with an examining

physician. The State’s argument ignores the explicit requirement in

RCW 71.05.154 that a DMHP “must consult with any examining

emergency room physician” and that the DMHP “must document
the consultation with an examining emergency room physician,

8 The opinion states only that “K.R. was transported by the sheriff's deputy first to a
hospital in Vancouver.” K.R., 195 Wn. App. at 845. It does not indicate the nature or length of
K.R.’s stay at the hospital or whether K.R. was treated in an emergency room.

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No. 77173-6-1/5

including the physician's observations or opinions regarding

whether detention of the person is appropriate.” RCW 71.05.154

(emphasis added).

K.R., 195 Wn. App. at 848 n.5.

It is undisputed that, when C.A.C. was initially detained, there was no
examining emergency room physician present or involved in his care. C.A.C.
relies on K.R. and its strict interpretation of former RCW 71.05.154 to contend
that his initial detention was improper. However, such an interpretation could
render detentions made outside of hospital emergency room settings onerous or
even impossible. Pursuant to the interpretation adopted by the K.R. court, a
DMHP would be unable to make the decision to detain a person without first
transporting that person to a hospital emergency room and waiting until a
physician became available.

Confronted with this issue, the trial court herein interpreted former RCW
71.05.154 as follows:

| have ruled before and would rule again today that it’s really

the word “any’ in the first sentence of [RCW 71.05.154] that drives

the court's analysis that this is not a statute that creates an

affirmative obligation to seek out an emergency room physician

where the interaction, investigation, and decision is happening in

the field, rather it places an affirmative responsibility on the DMHP

to seek out, consult with, and consider the input of an emergency

room physician who, given the circumstances of a particular case,

is engaged in the evaluation and care of the patient.

We agree with the trial court that the phrase “any examining emergency
room physician” indicates that the legislature contemplated situations in which a

detention would have to be commenced outside the presence of an examining

physician. The term “any” indicates one of an existing set of physicians,

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No. 77173-6-1/6

“indicat[ing] a positive but undetermined number or amount.” WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY 97 (2002). When there is no “positive . . .
number or amount” of physicians available, it follows that there is not “any” one
physician with whom to consult. Thus, given that no examining emergency room
physician had observed the respondent, the physician consultation requirement
of subsection .154 did not apply to the DMHP’s determination. This interpretation
is consistent with RCW 71.05.153(1), which both anticipated DMHPs making
decisions to detain outside of a hospital setting and the transportation of
respondents to places other than hospital emergency rooms. It is also consistent
with the legislative intent of the ITA “[t]o provide prompt evaluation and timely
and appropriate treatment of persons with serious mental disorders.” Former
RCW 71.05.010(1}{c) (2015).

Given that there was not “any examining emergency room physician” at
C.A.C.’s father’s house when the decision to detain was made, the DMHP herein
acted lawfully in evaluating C.A.C. and directing his detention. The trial court did

not err by denying C.A.C.’s motion to dismiss.°

9 As this holding concerns an iteration of a statute that is no longer in effect, there is a
possibility that the construction of former RCW 71.05.154 may not resurface as an issue in our
courts. We operated on such an understanding when deciding !n re Det. of G.S.Y., No.
76267-2-l, (Wash. Ct. App. June 18, 2018) (unpublished),
http:/Awww.courts.wa.gov/opinions/pdf/762672.pdf, an opinion that declined to follow Division
Two's holding in K.R. but that was not published. We now have yet another case. We recognize
that trial courts in Division One are left without clear guidance as to how former RCW 71.05.154
is to be applied, due to the existence of an unpublished opinion from this division that is not in
accord with another division’s published opinion. Hence, this published opinion.

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No. 77173-6-l/7

Affirmed.

We concur:

Avdruw

f

SP