STATE OF WASHINGTON
DEPARTMENT OF SOCIAL AND HEALTH SERVICES
Health and Recovery Services Administration
Division of Behavioral Health and Recovery
PO Box 45330, Olympia, WA 98504-5330
(360) 725-3700
October 27, 2010
RE: Investigation of Complaint MH-161
The Department of Social and Health Services (DSHS) received your complaint on August 10, 2010, asserting that a your son, a resident in Yakima County had his civil rights violated when he was unjustly involuntarily detained to an Evaluation and Treatment (E and T) facility.
RCW 71.05.520 states: The department of social and health services shall have the responsibility to determine whether all rights of individuals recognized and guaranteed by the provisions of this chapter and the Constitutions of the state of Washington and the United States are in fact protected and effectively secured. To this end, the department shall assign appropriate staff who shall from time to time as may be necessary have authority to examine records, inspect facilities, attend proceedings, and do whatever is necessary to monitor, evaluate, and assure adherence to such rights.
This letter serves as notice that the above requirements have been met:
DSHS assigned two staff to investigate the complaint. Both are licensed by the Department of Health as Mental Health Counselors and one is also a Licensed Independent Clinical Social Worker. In addition, both staff persons are former Designated Mental Health Professionals (DMHP).
The investigation consisted of a record review of detention documentation filed with the court by the DMHP and kept on file with the Crisis Team at Central Washington Comprehensive Mental Health in Yakima, Washington. The investigation also consisted of and a review of the documentation filed with the court by Yakima Valley Memorial Hospital’s Inpatient E&T facility.
Yakima Valley Memorial Hospital is certified by DSHS as an E&T facility and has received annual reviews by DSHS. The purpose of these reviews is to ensure ongoing compliance with relevant statutes and administrative codes, including the compliance with respondent rights.
The DMHP whose work was reviewed in this case is an employee of Central Washington Comprehensive Mental Health.
Findings:
All rights pertaining to the complaint are outlined in the statutes below. Only those sections of RCWs relevant to the complaint are addressed.
RCW 71.05.360 Rights of involuntarily detained persons.
b) No person shall be presumed incompetent as a consequence of receiving an evaluation or voluntary or involuntary treatment for a mental disorder, under this chapter or any prior laws of this state dealing with mental illness. Competency shall not be determined or withdrawn except under the provisions of chapter 10.77 or 11.88 RCW.
A review of the documentation showed no violation of the above statute, which ensures that regardless of the respondent’s mental state, respondents continue to have a right to act on their own behalf in legal proceedings. This is evidenced by the respondent’s signature, required on nearly all legal documentation. Only the first 24 hour treatment notice was not signed, and it documented that the respondent refused to sign. The respondent had been notified of his right to refuse medications 24 hours prior to a hearing, and had chosen to take his medications anyway.
There is no evidence of a Guardianship of the person or estate of the respondent having been awarded to anyone.
c) Any person who leaves a public or private agency following evaluation or treatment for mental disorder shall be given a written statement setting forth the substance of this section.
Page two of the Notice and Statement of Rights and Affidavit of Service, signed by the DMHP, attests that all copies of required paper work were given to the respondent.
5) Whenever any person is detained for evaluation and treatment pursuant to this chapter, both the person and, if possible, a responsible member of his or her immediate family, personal representative, guardian, or conservator, if any, shall be advised as soon as possible in writing or orally, by the officer or person taking him or her into custody or by personnel of the evaluation and treatment facility where the person is detained that unless the person is released or voluntarily admits himself or herself for treatment within seventy-two hours of the initial detention:
Page two of the Notice and Statement of Rights and Affidavit of Service signed by the DMHP, attests that the respondent’s mother was notified orally of the detention.
(a) A judicial hearing in a superior court, either by a judge or court commissioner thereof, shall be held not more than seventy-two hours after the initial detention to determine whether there is probable cause to detain the person after the seventy-two hours have expired for up to an additional fourteen days without further automatic hearing for the reason that the person is a person whose mental disorder presents a likelihood of serious harm or that the person is gravely disabled;
A review of court documentation indicated that all timelines were met.
b) The person has a right to communicate immediately with an attorney; has a right to have an attorney appointed to represent him or her before and at the probable cause hearing if he or she is indigent; and has the right to be told the name and address of the attorney that the mental health professional has designated pursuant to this chapter;
All court documentation was signed by the respondent’s attorney.
(c) The person has the right to remain silent and that any statement he or she makes may be used against him or her;
(d) The person has the right to present evidence and to cross-examine witnesses who testify against him or her at the probable cause hearing;
The respondent was informed of his rights on several occasions, as documented by copies of these rights, containing his signature in the record.
(e) The person has the right to refuse psychiatric medications, including antipsychotic medication beginning twenty-four hours prior to the probable cause hearing.
The required 24 Hour Treatment Notice forms are a part of the legal record and show that all timelines were met.
(7) The judicial hearing described in subsection (5) of this section is hereby authorized, and shall be held according to the provisions of subsection (5) of this section and rules promulgated by the supreme court.
(8) At the probable cause hearing the detained person shall have the following rights in addition to the rights previously specified:
(a) To present evidence on his or her behalf;
(b) To cross-examine witnesses who testify against him or her;
(c) To be proceeded against by the rules of evidence;
(d) To remain silent;
(e) To view and copy all petitions and reports in the court file.
Court documents in the hospital record show that the respondent was indeed in court, and that he signed a document stipulating to the allegations of the DMHP and the Court, waiving his rights in this case.
(11) Every person involuntarily detained shall immediately be informed of his or her right to a hearing to review the legality of his or her detention and of his or her right to counsel, by the professional person in charge of the facility providing evaluation and treatment, or his or her designee, and, when appropriate, by the court. If the person so elects, the court shall immediately appoint an attorney to assist him or her.
Court documentation again shows that the above rights were provided to the respondent as evidenced by documents signed by the respondent listing the above rights, or an attestation saying that he was made aware of these rights.
(12) A person challenging his or her detention or his or her attorney shall have the right to designate and have the court appoint a reasonably available independent physician, psychiatric advanced registered nurse practitioner, or licensed mental health professional to examine the person detained, the results of which examination may be used in the proceeding. The person shall, if he or she is financially able, bear the cost of such expert examination, otherwise such expert examination shall be at public expense.
Documentation in the court record indicates that the respondent waived these rights, as evidenced by signatures of his attorney, the prosecutor, and the presiding commissioner.
RCW 71.05.150 Detention of persons with mental disorders for evaluation and treatment — Procedure
(1) When a designated mental health professional receives information alleging that a person, as a result of a mental disorder: (i) Presents a likelihood of serious harm; or (ii) is gravely disabled; the designated mental health professional may, after investigation and evaluation of the specific facts alleged and of the reliability and credibility of any person providing information to initiate detention, if satisfied that the allegations are true and that the person will not voluntarily seek appropriate treatment, file a petition for initial detention. Before filing the petition, the designated mental health professional must personally interview the person, unless the person refuses an interview, and determine whether the person will voluntarily receive appropriate evaluation and treatment at an evaluation and treatment facility or in a crisis stabilization unit.
The Initial Petition for Detention shows that the respondent was brought to the Crisis Center by his brother, who requested an evaluation. The DMHP used information provided by the family, as well as a sworn witness statement signed by the respondent’s mother, who attested to acts that were deemed to be a danger to others.
The Initial Petition for Detention includes the DMHP’s justification for the detention; whether respondent would agree to voluntary treatment, and if so, whether a voluntary hospitalization was appropriate.
Hospital admissions documentation reports respondent was offered a Crisis Stabilization bed prior to being admitted, but he had refused that placement.
(2)(a) An order to detain to a designated evaluation and treatment facility for not more than a seventy-two-hour evaluation and treatment period may be issued by a judge of the superior court upon request of a designated mental health professional, whenever it appears to the satisfaction of a judge of the superior court:
(i) That there is probable cause to support the petition; and
(ii) That the person has refused or failed to accept appropriate evaluation and treatment voluntarily.
(b) The petition for initial detention, signed under penalty of perjury, or sworn telephonic testimony may be considered by the court in determining whether there are sufficient grounds for issuing the order.
(c) The order shall designate retained counsel or, if counsel is appointed from a list provided by the court, the name, business address, and telephone number of the attorney appointed to represent the person.
The court reviewed the Petition for Initial Detention. Any deviation from statutory requirements or violation of rights would have been grounds for dismissal. This case was not dismissed.
(3) The designated mental health professional shall then serve or cause to be served on such person, his or her guardian, and conservator, if any, a copy of the order together with a notice of rights, and a petition for initial detention. After service on such person the designated mental health professional shall file the return of service in court and provide copies of all papers in the court file to the evaluation and treatment facility and the designated attorney. The designated mental health professional shall notify the court and the prosecuting attorney that a probable cause hearing will be held within seventy-two hours of the date and time of outpatient evaluation or admission to the evaluation and treatment facility. The person shall be permitted to be accompanied by one or more of his or her relatives, friends, an attorney, a personal physician, or other professional or religious advisor to the place of evaluation. An attorney accompanying the person to the place of evaluation shall be permitted to be present during the admission evaluation. Any other individual accompanying the person may be present during the admission evaluation. The facility may exclude the individual if his or her presence would present a safety risk, delay the proceedings, or otherwise interfere with the evaluation.
Page two of the Notice and Statement of Rights and Affidavit of Service, signed by the DMHP, attests that copies of the Petition for Initial Detention were given to the respondent. Copies of all necessary documentation were in the inpatient chart as required.
RCW 71.05.237Judicial proceedings — Court to enter findings when recommendations of professional person not followed. In any judicial proceeding in which a professional person has made a recommendation regarding whether an individual should be committed for treatment under this chapter, and the court does not follow the recommendation, the court shall enter findings that state with particularity its reasoning, including a finding whether the state met its burden of proof in showing whether the person presents a likelihood of serious harm.
The court agreed with the professional recommendations of the DMHP and of Hospital Staff, including the decision to rule out any less restrictive alternatives.
Conclusions:
A Review of court documentation and the clinical record indicates that the respondent’s rights were upheld per RCW; all questions and decisions were considered and answered per the legal requirements. All timelines were met and treatment was provided within RCW and WAC standards.
The documentation indicates that the respondent was informed of his rights at the required times. The decisions to detain; whether the respondent was appropriate for voluntary hospitalization; the decision whether to drop the detention or proceed to court; and the decisions concerning releasing the respondent on a less restrictive agreement were all documented.
No one person was involved in making any of these decisions. Even the decision to detain had to be agreed upon; and brought to court by the inpatient unit. The inpatient until had 72 hours to drop the court proceeding if they felt a commitment was no longer appropriate. Once in court, all parties agreed with the decision for an involuntary commitment.
The only person in the process who had the ability to act on their own was the respondent; and he signed documentation agreeing to everything that happened to him. He is allowed to make this decision per RCW, unless someone has been granted guardianship over him; and there is no evidence that this was the case.
This process is about checks and balances and it is the opinion of the investigators reviewing this case that the rules were followed and that his rights were repeatedly and consistently respected as called for in the law.
Sincerely;
Tony Sparber, LICSW, LMHC
Mental Health Program Administrator
DSHS, Div. of Behavioral Health and Recovery
PO Box 45330, Olympia, WA 98504
PHONE: (360) 725-1493
FAX (360) 586-9582