Arizona Court of Appeals Division One Holds That An Involuntarily Committed Mental Health Patient’s Due Process Rights Are Not Violated When A Required Physician Evaluation of the Patient Is Deficient Because the Patient Fails to Cooperate During the Evaluation.

The appellant is a patient who was evaluated by two physicians after a petition for court-ordered evaluation was filed against him.  One of the two physicians, Dr. H, twice attempted to interview the appellant, but the appellant refused to cooperate and was intentionally uncommunicative during the evaluation.  Dr. H submitted an affidavit supporting a petition for court-ordered treatment.  Rather than being based on his direct evaluation of the patient, his affidavit was instead based on personal observations of the appellant, the appellant’s medical chart, and on discussions with treatment staff.  At the hearing on the petition for court-ordered treatment, both parties stipulated to admission of the affidavits of the two physicians.  The superior court ordered that the appellant undergo treatment.  The appellant appealed, arguing that his due process rights were violated because A.R.S. § 36-533(B) requires that a petition for court-ordered treatment be supported by the affidavits of two physicians who have conducted evaluations and that Dr. H did not conduct an “evaluation” within the meaning of the statute.

The Arizona Appeals Court affirmed, holding that the appellant had waived the right to challenge Dr. H’s affidavit because he had not raised the issue in the superior court and because he had stipulated to the admission of Dr. H’s affidavit in the superior court hearing.  Even though it was undisputed that Dr. H did not examine the appellant as required by A.R.S. § 36-533(B), the Court held that Dr. H was not required to continue attempting to examine a patient who willfully refused to participate in the evaluation, and that the record supported the conclusion that the patient had willfully refused to participate in the examination.  The Court also rejected the appellant’s argument that there was insufficient evidence for the superior court to find that the appellant was persistently or acutely disabled and a danger to others.

Judge Brown authored the opinion; Judges Thomson and Weisberg concurred.