(dissenting) —
A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.
Baron De Montesquieu, The Spirit of the Laws 150 (Thomas Nugent trans., Hafner Press 1949).
The issue here is under what circumstances, and for what length of time, an individual may be lawfully imprisoned, albeit shackled, in a hospital emergency room under color of law.
I begin with the background presumption of a free society that liberty is the norm and incarceration is the exception, an exception which must be lawfully justified. Our search for that legal justification surely leads us to ROW 71.05.050. This statute provides affirmative legal authority to detain someone up to six hours. In pertinent part that statute provides
Any person voluntarily admitted for inpatient treatment to any public or private agency shall be released immediately upon his or her request. . . . PROVIDED FURTHER, That if a person is brought to the emergency room of a public or private agency or hospital for observation or treatment, the person refuses voluntary admission, and the professional staff of the public or private agency or hospital regard such person as presenting as a result of a mental disorder an imminent likelihood of serious harm, or as presenting an imminent danger because of grave disability, they may detain such person for sufficient time to notify the county designated mental health professional of such person’s condition to enable the county designated mental health professional to authorize such person being further held in custody or transported to an evaluation treatment center pursuant to the conditions in this chapter, but which time shall be no more than six hours from the time the professional staff determine that an evaluation by the county designated mental health professional is necessary.
Id.
This provision follows a declaration of legislative intent “[t]o provide prompt evaluation and timely and appropriate *286treatment of persons with serious mental disorders” and “[t]o safeguard individual rights.” RCW 71.05.010(2), (3). Since this statute involves a deprivation of liberty it must be construed strictly. In re Det. of Swanson, 115 Wn.2d 21, 28, 793 P.2d 962, 804 P.2d 1 (1990); In re Cross, 99 Wn.2d 373, 379, 662 P.2d 828 (1983).
In Swanson, for example, one issue was when the 72-hour emergency custody period began for purposes of RCW 71.05.150(2). That statute provided a person may “be taken into emergency custody in an evaluation and treatment facility for not more than seventy-two hours.” However the hospital claimed the 72-hour period did not begin until the person actually arrived at the treatment facility (thereby excluding travel time), whereas the prisoner claimed that scenario “would necessarily leave an unspecified period of time when the person is neither detained nor free to leave.” Swanson, 115 Wn.2d at 32. Affording the statute a strict construction, we agreed with the prisoner, holding the 72-hour period includes travel time.
The statute at issue in this case affirmatively furnishes the necessary lawful authority to hold, “detain,” restrain, or imprison one in a hospital emergency room under the statutory criteria. Equally as apparent is the limitation on the grant of that authority: six hours from the time staff “regard [s]” or “determine [s]” that as a result of a mental disorder the individual presents an imminent danger to himself or others.
But here more than six hours elapsed from the time each of these individuals was imprisoned (sometimes shackled to a gurney by each wrist and each ankle) until seen by a designated mental health professional.
The majority opines that the clock doesn’t start running at the first point of imprisonment but rather from some later point of time when a more considered judgment might be made. Although this is a plausible interpretation of the statute, I posit it is a tortured one which misses the point, and yields other problems which the majority does not acknowledge.
*287If someone is imprisoned upon his arrival at the emergency room for some hours before the staff “regards” him as potentially committable, what is the lawful authority for that initial period of “predetention restraint” (majority at 276)?18 The majority doesn’t tell us and I am aware of none.
Rather, it would appear that this “unspecified period of time when the person is neither detained nor free to leave”19 is imprisonment without lawful authority and— therefore—unlawful imprisonment. Certainly this initial period is no less a massive curtailment of liberty than any subsequent period and is thus subject to the same constitutional concerns and safeguards. Without benefit of statute it is accomplished by brute force alone, affording the victim neither prior judicial hearing, counsel, nor the rudiments of humane respect and decency.
By the majority’s logic the statute provides neither lawful justification for the initial imprisonment nor even an abstraction of necessity based upon the victims’ mental state, as the majority holds this initial detention occurs without “regard” for such a justification. I hasten to qualify, however, that while necessity may be the mother of invention, it is a poor relation to legality.
The alternative approach, where the clock starts ticking from the first moment of imprisonment in the emergency room, seems not only faithful to reality and less problematic for all concerned, but in perfect keeping with the statutory text.
It is faithful to reality because it seems quite apparent that the individual is being restrained because, in fact, the hospital staff “regards” him as a mental case necessarily imprisoned to prevent his escape. Why else are they keeping him? Moreover, the hospital and staff rely upon the statute at issue here to furnish the lawful justification for imposing and maintaining that restraint until the mental health professionals take him off their hands.
*288I assume, in the normal course of events, six hours is ample time for the emergency room staff to operate within this legal window of authority. However if I assume wrong, the remedy is for the legislature to determine by way of statute and/or constitutional amendment, not this court.
Quixotically, under the majority’s theory even if the total length of imprisonment were under six hours, almost invariably the initial period of that detention would be outside the statutory authorization, i.e., before the staff "regarded” the prisoner as committable. Thus in almost every situation as seen by the majority, incarceration in the emergency room would necessarily begin with some period of incarceration not lawfully justified by the statute. This is an intolerable offense against liberty.
A society committed to liberty must demand prompt assessment of the alleged mentally ill by emergency room staff. The majority contemplates individuals may be restrained against their will without lawful authority for an indefinite period before making a determination that an examination by the county designated mental health professional is even necessary. Such unlawful restraint is inconsistent with the statute and violates the due process of law clauses of our state and federal constitutions.
I dissent.
Chambers, J., concurs with Sanders, J.
An Orwellian term if there ever was one.
In re Det. of Swanson, 115 Wn.2d 21, 32, 793 P.2d 962, 804 P.2d 1 (1990).