Arizona Court of Appeals Division One Holds That 72-Hour Notice Requirement in A.R.S. § 36-536(A), Addressing Involuntary Treatment For Mental Disorders, Must Be Strictly Complied With And Cannot Be Waived.

JB was ordered by the trial court to undergo involuntary inpatient/outpatient mental health treatment after attending a hearing that occurred approximately 42 hours after JB received notice of the hearing. A.R.S. §36-536(A) requires 72 hour notice. JB did not object to the notice she received at the time of her hearing.

JB appealed, asking that the trial court’s order be vacated because she did not receive 72-hour notice. The State conceded that JB did not receive 72 hours’ notice, but argued that she waived the issue on appeal because she failed to object at the time of the hearing. The State further noted that JB did not argue she was prejudiced by the shorter notice.

The Court of Appeals, Division One, vacated the order, emphasizing that the notice statute declares that “[t]he notice provision of this section cannot be waived.” The court held that this statutory provision against waiver of the 72-hour notice period applies to the hearing itself and to appellate proceedings. “Involuntary treatment by court order is a serious deprivation of liberty, and proceedings that may result in such restraint must provide the prospective patient with appropriate due-process protection.” (citations and internal quotations omitted).

Judge Ehrlich authored the opinion, with Judge Irvine, Presiding Judge, and Judge Pro Tempore Andrew W. Gould concurring.