Arizona Court of Appeals Division One Holds That A Judge Is Not Required to Engage in a Personal Colloquy With Mental Health Patient To Determine Whether He Knowingly Waived Having Examining Physicians Testify in Person.

Appellant had been diagnosed with paranoid schizophrenia and had resided in a group home for two years. After refusing medication, being verbally abusive, and engaging in dangerous behavior, Appellant’s case manager filed a petition for court-ordered treatment. At the hearing, Appellant’s counsel stipulated to admission of the affidavits from Appellant’s evaluating physicians instead of in-person testimony. The superior court found that Appellant had a mental disorder and was a danger to himself. The court ordered that Appellant undergo inpatient and outpatient treatment. Appellant appealed the court’s order, arguing that the court was required to engage in a colloquy with Appellant to ascertain whether he knowingly agreed to the stipulation of the using the doctors’ affidavits instead of in-person testimony. He also argued that the petitioner had failed to establish the evaluating physicians’ credentials.

The Court of Appeals affirmed, holding that the Appellant had not raised the issue in the superior court, that the Appeals Court will generally not consider issues raised for the first time on appeal, and that he had invited the error by jointly stipulating to using the physicians’ affidavits. The Court further explained that even if it were to consider Appellant’s claim, it would affirm. The Appellant relied on a footnote, which the Court labeled as dichta, from In re MH 2008-001752. The Court distinguished t In re MH 2008-001752, pointing out that in that case the Appellant had waived the entire adversarial hearing through counsel, and that there were not similar due process concerns here. The Court also rejected Appellant’s argument regarding the physicians’ qualifications, pointing out that he had failed to raise this issue in superior court and that the record had sufficient proof of the physicians’ credentials.

Judge Winthrop authored the opinion; Judges Portley and Downie concurred.