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Arizona Appellate Court Case – In re MH2010–002637

In re MH2010-002637, 228 Ariz. 74, 263 P.3d 82 (Ct. App. 2011)

Facts of the Case:

The Appellant (the party who appeals to an appellate court) is a diagnosed schizophrenic who suffered a dramatic weight loss in the preceding weeks and appeared ill when admitted to the hospital. The Appellant refused to accept treatment, and was transferred hospitals were his mental and physical health was evaluated. For the civil commitment hearing Appellant was appointed a public defender.

Appellant was not able to attend the civil hearing, nor have it brought to him because of a dangerously low white blood cell count. Instead, he was quarantined where only a medical staff would be around him. According to A.R.S. §36-535(B) the hearing must be held within six days of when the petition is filed. Appellant’s health would not improve before the deadline of the statute.

Affidavits submitted to the trial court by doctors “indicated that Appellant was persistently or acutely disabled and in need of involuntary commitment.”

The trial court ruled Appellant was “acutely disabled and in need of court-ordered mental health treatment.”


1. Whether a court may proceed with a hearing when a patient is absent from the evidentiary hearing, required by the A.R.S. §36-539(C), without first finding that the patient cannot appear through any other means.

2. Whether “a person facing civil commitment have the right to effective assistance of counsel, and if so, how is a claim of ineffective assistance of counsel to be resolved.”


1. Involuntary treatment involves a massive curtailment of liberty, “a patient facing civil commitment must be afforded due-process protection.”

2. In determining whether due process has been afforded in a civil commitment case, we look to the three-factor test set forth Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18, 1976 U.S. LEXIS 141, 41 Cal. Comp. Cas 920 (U.S. 1976).

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. – Id.


Alternative Means of Appearance

1. First, the court said: One’s liberty is reduced during confinement. To protect against unjust loss of liberty one of the procedural safeguards needed is the opportunity to be heard at civil commitments.

2. Second, it can be very difficult in the eyes of the law to come to a definite psychiatric diagnosis. Thus the procedures above must be used otherwise there is a high degree of erroneous deprivation of an individual’s liberty. In this case, the plaintiff asks the court to allow patients to appear telephonically before the court, which would give the proceedings a greater degree of accuracy.

3. The court cannot find a reason why to bar a patient from defending himself telephonically. Even though A.R.S. §36-539(c) allows the court to render a decision without the plaintiff, the court views that the patient should have every opportunity to defend himself. In the chance that he cannot be physically present other methods should be considered, like telephonically.

Effective Assistance of Counsel

The plaintiff argues his attorney was not effective in representing him. Among the list of things his lawyer did not do: “interviewed him (the plaintiff), did not seek to have him participate at the hearing, offered no evidence at the hearing to oppose the petition, cross-examined only one witness (which permitted that witness to testify about the need for mental health treatment) and made no closing argument.” In re MH2010-002637, 228 Ariz. 74, 263 P.3d 82 (Ct. App. 2011).

The court says that an effective attorney is a due process issue,and without a competent attorney there is a much higher chance that errors can be made in the process and decision.


The appellate court sent the case back to the trial court for it to be retried using the standards in this opinion.

Court of Appeals, State of Arizona, Division One

Decided: Sept. 27, 2011

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