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FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
JULY 27, 2023
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
JULY 27, 2023
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
IN THE MATTER OF THE ) No. 100668-3
DETENTION OF ) (consol. with No. 100690-0)
A.C. )
_______________________________ )
En Banc
)
IN THE MATTER OF THE )
DETENTION OF ) Filed: July 27, 2023
N.G. and C.M. )
_______________________________)
GONZÁLEZ, C.J. –Washington State has the power, as currently codified in the
involuntary treatment act (ITA), ch. 71.05 RCW, to involuntarily detain a person
suffering from a behavioral health disorder for evaluation and treatment under certain
limited circumstances. But involuntary detention, even when done for the person’s
own good, is a profound deprivation of liberty that the State may not impose without
due process of law.
Due to the important liberty and safety issues implicated, the ITA and its
statutory predecessors impose highly specific restrictions on the exercise of that
power. To ensure that power is exercised under law and due process is satisfied, the
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No. 100668-3 (consol. w/ No. 100690-0)
ITA’s requirements are strictly construed. The ITA allows for a brief, emergency
detention on the authority of a designated crisis responder without prior judicial
oversight. This brief emergency detention is designed for situations when a person is
in crisis and effective alternatives to emergency detention do not exist. The person so
held, however, must be promptly provided counsel and brought before a judge. If the
State seeks to involuntarily detain a person for more than a brief period of time, it
must establish its case by clear, cogent, and convincing evidence and may be required
to do so before a jury. We are asked today when and whether an ITA petition should
be dismissed when the State or its agents violate the ITA.
NG, CM, and AC were all involuntarily detained under the ITA. NG and CM
were confined at Western State Hospital for more than a month after the court orders
authorizing their continued civil commitments expired. Even after hospital staff
realized the court orders had expired, they continued to hold NG and CM. Staff
summoned designated crisis responders to initiate “new” ITA proceedings. AC was
detained under a valid court order but was involuntarily medicated at an evaluation
and treatment center before a court hearing despite asserting her statutory right to not
be. The trial judge continued the hearing for a day to allow AC to appear un-
medicated.
We hold that when the State totally disregards the requirements of the ITA by
holding someone despite lacking the authority under the ITA to do so, the ITA
petition shall be dismissed. Beginning “new” ITA proceedings while someone is
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No. 100668-3 (consol. w/ No. 100690-0)
being held without authority of law is not an acceptable remedy. In NG’s and CM’s
cases, we conclude the requirements of the ITA were totally disregarded and therefore
reverse the Court of Appeals and remand to the trial courts for dismissal. In AC’s
case, we conclude that the requirements of the ITA were not totally disregarded and
that she was not held without authority of law. In that case, we affirm the courts
below.
BACKGROUND
This case involves three patients, NG, CM, and AC, who were involuntarily
detained under the ITA and whose rights under the act were plainly violated. NG and
CM had both been involuntarily detained at Western State Hospital on court orders
authorizing the State to hold them for up to 180 days. AC was held on a court order
directing she be involuntarily detained at Telecare North Sound Evaluation and
Treatment Center for 14 days.
The court order authorizing NG’s involuntary detention expired in December
2019. Western State Hospital continued to hold NG without an authorizing court
order for more than a month after the order expired. A witness later testified that the
order was allowed to expire, at least in part, because the State failed to properly
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No. 100668-3 (consol. w/ No. 100690-0)
manage and maintain computer databases. The record does not reveal whether this
problem has been remedied.
Problems at Western State Hospital persisted, and six months later, the court
order authorizing the State to involuntarily detain CM expired. As with NG, Western
State Hospital continued to hold CM without an authorizing court order for more than
a month after the order expired. The record suggests that staff had timely prepared a
petition for another 180 days of involuntary detention but had failed to file it with the
court due to a problem with their email.
Once staff at Western State Hospital noticed that the orders authorizing NG’s
and CM’s involuntarily detentions had expired, they started the ITA procedures over.
NG and CM were examined by the designated crisis responders as if the initial
emergency procedures of the ITA applied. Based on their evaluations, the responders
placed NG and CM in emergency custody. The emergency custody provisions of the
ITA do not provide for prior judicial review and are designed for the beginning of the
ITA proceedings, not for after someone has already been involuntarily detained.
RCW 71.05.153, .310. Shortly afterward, Western State Hospital filed new ITA
petitions in court to detain NG and CM for 14 days.
At their first court hearings under the new petitions, NG and CM each moved
to dismiss on the grounds that the ITA’s requirements had been totally disregarded.
In NG’s case, the State successfully argued that the legislature would not have
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No. 100668-3 (consol. w/ No. 100690-0)
intended dismissal as the appropriate remedy given how gravely disabled she was. In
CM’s case, the State unsuccessfully argued that the legislature intended money
damages under RCW 71.05.510,1 not dismissal, as a penalty for violation of the ITA. 2
A Pierce County commissioner granted CM’s motion to dismiss.
While CM’s and NG’s cases were pending, AC was involuntarily detained
under the ITA for 14 days at the Telecare North Sound Evaluation and Treatment
Center. AC formally invoked her right not to be medicated 24 hours before her next
court hearing. Despite her invocation of her right, AC was involuntarily medicated
the day before the hearing. Once the court realized that AC had been involuntarily
medicated, it continued the hearing for 24 hours, extended her detention, and directed
that AC not be involuntarily medicated before the continued hearing. Sealed Clerk’s
Papers (CP) at 29.
1
Under that provision, “Any individual who knowingly, willfully or through gross negligence
violates the provisions of this chapter by detaining a person for more than the allowable number
of days shall be liable to the person detained in civil damages.” RCW 71.05.510. The ITA also
provides, “Any person making or filing an application alleging that a person should be
involuntarily detained, certified, committed, treated, or evaluated pursuant to this chapter shall
not be rendered civilly or criminally liable where the making and filing of such application was
in good faith.” RCW 71.05.500. That section broadly exempts those involved in implementing
the ITA from liability as long as they act “in good faith and without gross negligence.” RCW
71.05.120(1), (2). Even though this has been a part of the ITA since it was enacted in 1973, we
are unaware of any case where a successful action for damages has been brought under RCW
71.05.510. LAWS OF 1973, 1st Ex. Sess., ch. 142, § 56.
2
The State also argued that the motion to dismiss was filed under the wrong cause number. The
motion had been filed under the cause number associated with the expired court order, not the
new cause number associated with the State’s new petition. This argument did not prevail.
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No. 100668-3 (consol. w/ No. 100690-0)
At that continued hearing, AC moved to dismiss the ITA petition on the
grounds the treatment center violated the ITA. The court denied the motion,
concluding that the State’s failure to comply with the statute was outweighed by the
State’s interest in reaching the merits. AC appealed denial of her motion to dismiss.
Based on the merits of the petition, the intent of the statute, and its determination of
whether the State totally disregarded the statutory requirements, Division One of the
Court of Appeals affirmed. In re Det. of A.C., No. 82653-1-I, slip op. at 1 (Wash. Ct.
App. Jan. 18, 2022) (unpublished),
https://www.courts.wa.gov/opinions/pdf/826531.pdf.
NG appealed both the denial of her motion to dismiss and the order granting the
State’s ITA petition. The State appealed the Pierce County commissioner’s grant of
CM’s motion to dismiss. NG’s and CM’s cases were consolidated on appeal and
heard by Division Two. In re Det. of N.G., 20 Wn. App. 2d 819, 822, 503 P.3d 1
(2022). The State argued that dismissal of the “new” ITA petitions was not an
appropriate remedy for allowing a previous involuntary commitment order to expire.
Division Two held “that dismissal of a new 14-day petition for involuntary treatment
under a new cause number is an available remedy when a committed person is
detained improperly beyond the end date of an involuntary commitment order, but
only if the petitioner has totally disregarded ITA requirements.” Id. Division Two
proposed a totality of the circumstances test that required the court to balance the
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No. 100668-3 (consol. w/ No. 100690-0)
violation of the ITA against the merits of the petition, among other things, and
remanded to the trial courts to apply this new approach. Id.
AC, NG, and CM all sought review, which we granted. The cases for AC, NG,
and CM were consolidated, and a related case, In re Detention of D.H., No. 100716-7,
was set as a companion. The American Civil Liberties Union of Washington,
Disability Rights Washington, the King County Department of Public Defense and
Washington Defender Association filed an amici brief in support of AC, NG and CM.
ANALYSIS
First, we must decide when and whether dismissal is required when the ITA has
been violated. This is a question of law we review de novo. Jametsky v. Olsen, 179
Wn.2d 756, 761, 317 P.3d 1003 (2014) (citing Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). Next, we must decide whether the
trial courts properly applied the law in these cases. Application of the law to a
particular set of disputed facts is reviewed for an abuse of discretion. State v.
Sisouvanh, 175 Wn.2d 607, 620, 290 P.3d 942 (2012) (citing State v. Lord, 117
Wn.2d 829, 901, 822 P.2d 177 (1991)). Discretion is abused if, among other things, it
is exercised on untenable grounds, such as a misunderstanding of the law. See id. at
623 (citing State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
While the parties frame their arguments around the statutory requirements of
the ITA, we are mindful that those statutory requirements are rooted in our common
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No. 100668-3 (consol. w/ No. 100690-0)
law and constitutions. “Involuntary commitment for mental disorders constitutes a
significant deprivation of liberty that requires due process protections.” In re Det. of
C.W., 147 Wn.2d 259, 277, 53 P.3d 979 (2002) (citing Addington v. Texas, 441 U.S.
418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979)). “The State’s lawful power to hold
those not charged or convicted of a crime is strictly limited.” In re Det. of D.W., 181
Wn.2d 201, 207, 332 P.3d 423 (2014) (citing Oviatt ex rel. Waugh v. Pearce, 954
F.2d 1470, 1474 (9th Cir.1992)). The State may not take a person’s liberty without
according them due process of law. WASH. CONST. art. I, § 3.
Due process also requires regular judicial review to ensure the restrictions on
liberty do not persist longer than necessary given the State’s legitimate purposes. See
State v. McCuistion, 174 Wn.2d 369, 385, 275 P.3d 1092 (2012) (citing Jones v.
United States, 463 U.S. 354, 368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983)).
Involuntary detention under a civil commitment statute like the ITA is “constitutional
only when both initial and continued confinement are predicated on the individual’s
mental abnormality and dangerousness,” among other constitutional requirements. Id.
at 387 (citing Foucha v. Louisiana, 504 U.S. 71, 77-78, 112 S. Ct. 1780, 118 L. Ed. 2d
437 (1992)).
What process is due is shaped in part by the processes established by the
legislature. Nearly a century ago, this court reversed a civil commitment order under
an earlier version of the ITA, reasoning, “‘Where a statute prescribes a certain method
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No. 100668-3 (consol. w/ No. 100690-0)
of procedure to determine whether persons are insane, such inquiries must be
conducted in the mode prescribed, and the statute regulating such proceedings must be
followed strictly.’” In re Welfare of Eastman, 151 Wash. 321, 322, 275 P. 724 (1929)
(quoting 14 RULING CASE LAW Insanity, § 8, at 556-57 (1916)). As we put it more
recently, “[t]he ITA impacts liberty interests and thus is strictly construed.” D.W.,
181 Wn.2d at 207 (citing In re Det. of G.V., 124 Wn.2d 288, 296, 877 P.2d 680
(1994)).
This strict construction comes with consequences. In a case involving a person
involuntarily detained at Harborview Medical Center, we observed that “[i]f
Harborview had totally disregarded the requirements of the statute or had failed to
establish legal grounds for Swanson’s commitment, certainly dismissal would have
been proper. Indeed, it would have been required.” In re Det. of Swanson, 115
Wn.2d 21, 31, 804 P.2d 1 (1990) (emphasis added).
But not every violation of the ITA necessitates dismissal. “The [legislative]
goals of ensuring continuity of care and protecting the public are decidedly not met if
dismissal of properly filed and factually supported petitions turns on [things other]
than on the court’s determination of whether or not legal grounds for commitment
exist.” Id. at 29. Accordingly, “[u]nderlying the involuntary treatment act is a tacit
presumption in favor of deciding issues on the merits.” G.V., 124 Wn.2d at 296.
These tensions are reflected in the legislature’s statement of intent:
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No. 100668-3 (consol. w/ No. 100690-0)
(a) To protect the health and safety of persons suffering from behavioral
health disorders and to protect public safety through use of the parens patriae
and police powers of the state;
(b) To prevent inappropriate, indefinite commitment of persons living
with behavioral health disorders and to eliminate legal disabilities that arise
from such commitment;
(c) To provide prompt evaluation and timely and appropriate treatment
of persons with serious behavioral health disorders;
(d) To safeguard individual rights;
(e) To provide continuity of care for persons with serious behavioral
health disorders;
(f) To encourage the full use of all existing agencies, professional
personnel, and public funds to prevent duplication of services and unnecessary
expenditures; and
(g) To encourage, whenever appropriate, that services be provided
within the community.
RCW 71.05.010(1). Prompted by our opinion in D.W., the legislature added
subsection (a), which asserts the State’s parens patriae and police power over those
afflicted by serious behavior health conditions, and a new provision:
When construing the requirements of this chapter the court must focus on
the merits of the petition, except where requirements have been totally
disregarded, as provided in In re C.W., 147 Wn.2d 259, 281 (2002). A
presumption in favor of deciding petitions on their merits furthers both
public and private interests because the mental and physical well-being of
individuals as well as public safety may be implicated by the decision to
release an individual and discontinue his or her treatment.
RCW 71.05.010(2); S.B. REP. ON ENGROSSED SECOND SUBSTITUTE S.B. 5649, at 2,
64th Leg., Reg. Sess. (Wash. 2015) (citing D.W., 181 Wn.2d 201).
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No. 100668-3 (consol. w/ No. 100690-0)
In D.W., the State had appealed a commissioner’s determination that using
single bed certifications to hold patients in institutions that did not provide
evaluation and treatment (sometimes called psychiatric boarding) was
unconstitutional and unlawful. 181 Wn.2d at 211. The commissioner had clearly
been disturbed by the number of people who had been brought before him from
single bed certifications in institutions that were not providing appropriate
treatment. Id. at 205. In the court papers, he strongly suggested civil damages or
injunctive relief would be appropriate to remedy the State’s failure to provide
appropriate evaluation and treatment for those it involuntarily detained. We
affirmed the commissioner and held that patients involuntarily detained under the
ITA had to be placed in a treatment facility unless they needed treatment, such as
dialysis, that was not available in a certified setting. Id. at 211. Since then, the
Department of Social and Health Services (DSHS) expanded the number of
certified beds and promulgated a rule that allows ITA detentions in noncertified
institutions that have the capacity to treat those detained. S.B. REP. ON ENGROSSED
SECOND SUBSTITUTE S.B. 5649, at 2; WAC 182-300-0100. 3
3
Despite our opinion and the legislature’s actions, a recent government report suggests that there
are about 850 single bed certifications a month, and about 80 cases where no bed can be found,
in Washington State. WASH. STATE HEALTH CARE AUTH., SINGLE BED CERTIFICATION AND
UNAVAILABLE DETENTION FACILITY REPORT (NO BED REPORT) QUARTERLY UPDATE (2022),
https://www.hca.wa.gov/assets/program/single-bed-certification-quarter-1.pdf
[https:perma.cc/GQF8-L8DG]. It also appears that people of color are significantly
overrepresented among those involuntarily detained under the ITA. LAINA POON ET AL., KING
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No. 100668-3 (consol. w/ No. 100690-0)
The post-D.W. amendment to the legislature’s statement of intent highlights
the tension between the constitutional requirement that liberty not be taken without
due process of law, the rights of those involuntarily detained under the ITA to
appropriate treatment, and the fact that our involuntary mental health system has
been consistently overwhelmed and legal requirements regularly disregarded. See
WASH. CONST. art. I, § 3; RCW 71.05.010(2); D.W., 181 Wn.2d at 204 (citing
Mary L. Durham & John Q. La Fond, The Empirical Consequences and Policy
Implications of Broadening the Statutory Criteria for Civil Commitment, 3 YALE L.
& POL’Y REV. 395, 411-12 (1985)); see also Trueblood ex rel. Badayos v. Dep’t of
Soc. & Health Servs., 822 F.3d 1037, 1044 (9th Cir. 2016) (noting that in the
related context of competency restoration for those charged with a crime, the State
“has ‘demonstrated a consistent pattern of intentionally disregarding court orders . .
. and [has] established a de facto policy of ignoring court orders which conflict
with [its] internal policies’” (alterations in original) (quoting Trueblood v. Wash.
State Dep’t of Soc. & Health Servs., 101 F. Supp. 3d 1010, 1024 (W.D. Wash.
2015))). It is also at odds with the original purpose and deep structure of the ITA:
“to provide specific procedural protections for mentally ill persons subject to
involuntary mental [health] treatment” through a process that includes stages of
COUNTY AUDITOR’S OFF., INVOLUNTARY TREATMENT ACT COURT: REENTRY AND COURT
OUTCOMES 7 (2019), https://kingcounty.gov/~/media/depts/auditor/new-web-docs/2019/ita-
court-2019/ita-2019.ashx?la=en [https://perma.cc/MD4A-YFUJ].
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No. 100668-3 (consol. w/ No. 100690-0)
detentions that increase in length. In re Det. of A.S., 138 Wn.2d 898, 909, 982 P.2d
1156 (1999) (citing RCW 71.05.030); In re Det. of Dydasco, 135 Wn.2d 943, 947,
959 P.2d 1111 (1998).
With these considerations in mind, we turn to the specific cases before us.
I. NG & CM
Under both RCW 71.05.010 and long-standing precedent of this court rooted
in due process, the State may not totally disregard the requirements of the ITA
when involuntarily detaining a person. Swanson, 115 Wn.2d at 31. When it does
totally disregard those requirements, dismissal is required. Id.; see also C.W., 147
Wn.2d at 283 (“Furthermore, allowing dismissal in cases where the professional
staff totally disregarded the statutory requirements serves as a general safeguard
against abuse.”); In re Det. of K.R., 195 Wn. App. 843, 847, 381 P.3d 158 (2016)
(dismissing ITA petition because the designated mental health provider failed to
consult with the examining emergency room physician as required under former
RCW 71.05.154 (2013)). In such circumstances, no weighing of the merits of the
ITA petition is appropriate.
We recognize that in some cases, it will be difficult to determine whether the
requirements of the ITA have been totally disregarded. Neither “totally” nor
“disregarded” is defined in the ITA. See RCW 71.05.020 (definitions). “Totally”
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is defined in Merriam-Webster as “in a total manner : to a total or complete
degree.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/totally (last visited June 16, 2023). “Disregard” is defined
as “to pay no attention to : treat as unworthy of regard or notice” and as “the act of
treating someone or something as unworthy of regard or notice : the state of being
disregarded.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/disregard (last visited June 16, 2023). In the admittedly
very different context of negligent homicide, we observed that:
disregard . . . implies an aggravated kind of negligence or carelessness,
falling short of recklessness but constituting a more serious dereliction than
the hundreds of minor oversights and inadvertences encompassed within the
term “negligence.” Every violation of a positive statute, from a defective
taillight to an inaudible horn may constitute negligence under the motor
vehicle statutes, yet be unintentional, committed without knowledge, and
amount to no more than oversight or inadvertence but would probably not
sustain a conviction of negligent homicide. To drive with disregard for the
safety of others, consequently, is a greater and more marked dereliction than
ordinary negligence. It does not include the many minor inadvertences and
oversights which might well be deemed ordinary negligence under the
statutes.
State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967). Taken together, we
conclude that the requirements of the ITA have been totally disregarded when a
person is involuntarily detained without legal authority under the act.4 The
4
We respectfully disagree with the dissent that the critical question is whether a mandatory
provision of the act has been violated. See dissent at 7-8 (listing some mandatory provisions of
the ITA). Certainly, the violation of some mandatory provisions of the ITA would require
dismissal by the plain terms of the act. E.g., RCW 71.05.040 (“Persons with developmental
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No. 100668-3 (consol. w/ No. 100690-0)
requirements of the ITA are not totally disregarded in every case where some
aspect of the act has been violated.
But the orders giving the State legal authority to involuntarily detain NG and
CM had expired. Continuing to involuntarily detain them after the orders expired
was without authority of law. The ITA itself mandates release in such
circumstances. Most relevantly, the ITA provides:
(4) The person shall be released from involuntary treatment at the
expiration of the period of commitment imposed under subsection (1)[5] or
(2)[6] of this section unless the superintendent or professional person in
charge of the facility in which he or she is confined, or in the event of a less
restrictive alternative, the designated crisis responder, files a new petition for
involuntary treatment.
....
(8) No person committed under this section may be detained unless a
valid order of commitment is in effect. No order of commitment under this
section may exceed 180 days in length except as provided in subsection (7)
of this section.[7]
RCW 71.05.320 (emphasis added). Plainly, the ITA requires patients shall be
released once the court order authorizing their detention expires unless a judge
disabilities, impaired by substance use disorder, or suffering from dementia shall not be detained
for evaluation and treatment or judicially committed solely by reason of that condition.”) The
critical question is whether a person is being held without authority of law—in CM’s and NG’s
cases, because the court orders authorizing their detentions had expired.
We stress, however, that we do not mean to describe the entire universe of cases where a
violation of the ITA might amount to a total disregard of the requirements of the act. We address
only the factual circumstances before us here.
5
Providing for full custody of DSHS or an approved program for no more than 180 days. RCW
71.05.320(1).
6
Providing for a less restrictive alternative. RCW 71.05.320(2).
7
Providing for up to a year of less restrictive treatment upon release from intensive impatient
treatment at a state hospital. RCW 71.05.320(7).
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enters a new civil commitment order that extends their involuntary detention.
RCW 71.05.320(4). NG and CM should have been released before any new
proceeding was initiated.8 Initiating new proceedings while the person is still
involuntarily detained under an expired court order is not permitted by the ITA and
is not a remedy for this total disregard of the ITA’s requirements. It ignores the
State’s escalating burdens. The person must be released from custody into the
community before a new evaluation is appropriate.
The State totally disregarded the ITA when it held NG and CM for more
than a month after the civil commitment orders authorizing their involuntary
detentions expired. Under these circumstances, filing a “new” petition for custody
was merely an attempt to extend the existing custody that had long previously
expired. Under both Swanson and RCW 71.05.010(2), their dismissal motions
should have been granted.
8
A court order committing someone under the ITA for involuntary treatment is not like a one
year lease that expires but allows tenants to stay at the sufferance of the property owner.
Compare Marsh-McLennan Bldg., Inc. v. Clapp, 96 Wn. App. 636, 644, 980 P.2d 311 (1999),
with ch. 71.05 RCW. Once the ITA commitment order expires, the authority of law expires.
Once a lease expires, the property owner may suffer the tenant, with whom they had a voluntary
contractual relationship, to remain. There was nothing voluntary about NG’s and CM’s
commitments under the involuntary treatment act.
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No. 100668-3 (consol. w/ No. 100690-0)
II. AC
AC’s rights under the ITA were plainly violated. Staff at the evaluation and
treatment center violated her right to decline medication before a court hearing.
This should not have happened.
AC contends that an ITA petition should be dismissed if the ITA, strictly
construed, was not followed. But this approach would be at odds with both the
ITA and our case law. The legislature has directed courts to focus on the merits of
the petition unless the requirements of the ITA have been totally disregarded.
RCW 71.05.010(2). This standard, ultimately, is rooted in our opinion in Swanson.
See Swanson,115 Wn.2d at 31. Codification does not lessen Swanson’s
precedential value.
AC also argued that her due process and statutory rights were totally
disregarded when she was forcibly medicated. But unlike NG and CM, AC was
never held without authority of law. AC was brought before a judge on the
appointed day. The court acted promptly to remedy, as much as possible, the
violation of the ITA. In such a case, a court considering a motion to dismiss must
consider the totality of the circumstances in determining whether the requirements
of the act have been totally disregarded. In this case, given the relatively brief time
AC was held, the fact she was brought before a judge on the appointed day, the
17
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No. 100668-3 (consol. w/ No. 100690-0)
fact the judge extended her detention, and her clear need for additional treatment,
we hold that the trial court did not abuse its discretion in denying the motion to
dismiss. 9
CONCLUSION
Power must be exercised under law. Under the ITA, the State has the power,
without prior judicial review, to briefly detain a patient for evaluation and
treatment in emergency circumstances. RCW 71.05.150, .153. Once involuntarily
detained, the patient must be afforded a lawyer and promptly brought before a
judge to determine whether, based on a preponderance of the evidence, an
additional 14 days of evaluation and treatment is required. RCW 71.05.240(4)(a).
Once a patient has been involuntarily detained for 14 days, a court may authorize,
after a hearing, and based on clear, cogent, and convincing evidence, an additional
90 or 180 days of civil commitment. RCW 71.05.310.
The State totally disregarded these requirements in NG’s and CM’s cases
when they were each held for more than a month after the court orders authorizing
their civil commitments expired. When the requirements of the ITA have been
totally disregarded, the ITA petition must be dismissed. See Swanson, 115 Wn.2d
at 31. Accordingly, we reverse the Court of Appeals in N.G. and C.M., reverse
9
We stress that on the record before us, AC was never held without authority of law. She was at
all times detained either under the emergency provisions of the ITA or by court order.
18
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No. 100668-3 (consol. w/ No. 100690-0)
Commissioner Kiesel’s denial of NG’s motion to dismiss, and affirm Commissioner
Adams’ grant of CM’s motion to dismiss.
We affirm the Court of Appeals on different grounds in AC’s case. Though
the ITA was violated when she was involuntarily medicated, she was not detained
without authority of law.
We remand these cases to the trial courts for any further proceedings
necessary consistent with this opinion.
19
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No. 100668-3 (consol. w/ No. 100690-0)
____________________________
WE CONCUR:
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
20
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In re Det. of A.C., N.G., & C.M.
No. 100668-3
(consol. w/100690-0)
MADSEN, J. (concurring/dissenting)—This case turns on the meaning of statutory
terms, legislative intent, and public policy. The involuntary treatment act (ITA), ch.
71.05 RCW, states that the requirements of the chapter must be construed such that
petitions are decided on the merits, “except where requirements have been totally
disregarded.” RCW 71.05.010(2) (emphasis added). The legislature adopted the phrase
“totally disregarded” from a decision of this court, In re Detention of C.W., which
provides that dismissal is not an appropriate remedy for every violation but “may be
appropriate in the few cases where [providers] ‘totally disregarded the requirements of
the statute.’” 147 Wn.2d 259, 283, 53 P.3d 979 (2002) (emphasis added) (quoting In re
Det. of Swanson, 115 Wn.2d 21, 31, 804 P.2d 1 (1990)).
Here, the majority concludes that a total disregard occurs when a person is
involuntarily detained without legal authority under the ITA, requiring dismissal of the
petitions for commitment. Majority at 13-14; RCW 71.05.320(8).
I disagree. Instead, the term “totally disregarded” must be read together with the
legislative intent of the ITA, the presumption in favor of deciding cases on the merits,
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
and the public policy of providing mental health services to gravely disabled persons and
protecting the public. See C.W., 147 Wn.2d at 283. We should hold that the
requirements of the ITA are totally disregarded only when the action or inaction
complained of thwarts the fundamental purposes of the act. For the violations here,
dismissal is not warranted and, instead, the remedy is refiling a petition, as was done in
this case. I respectfully dissent. 1
DISCUSSION
Rules of Statutory Construction
The meaning of a statute is a question of law reviewed de novo. Dep’t of Ecology
v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). A court’s fundamental
objective is to ascertain and carry out the legislature’s intent. Id. If the statute’s meaning
is plain, then we give effect to that plain meaning as an expression of legislative intent.
Id. at 9-10. Plain meaning is derived from what the legislature has said in the statute,
related statutes, and context of the statutory scheme as a whole. Id. at 11; Lake v.
Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Absent a
specific statutory definition, words in a statute are given their ordinary meaning and we
may discern that meaning from the dictionary. State v. Chester, 133 Wn.2d 15, 22, 940
P.2d 1374 (1997); State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010).
Washington’s civil commitment statutes involve a deprivation of liberty, and therefore
they should be strictly construed. C.W., 147 Wn.2d at 272. But courts must also “‘keep
1
As discussed below, I concur with the majority in affirming A.C.’s case.
2
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
in mind the need to satisfy the intent of the statute while avoiding absurd results.’” Id.
(quoting Swanson, 115 Wn.2d at 28).
Meaning of “Totally Disregarded”
Subsection (2) of RCW 71.05.010 provides the language at issue: “[w]hen
construing the requirements of this chapter the court must focus on the merits of the
petition, except where requirements have been totally disregarded, as provided in In re
C.W.” (Emphasis added.) The ITA does not define “totally disregarded,” thus we turn to
the dictionary.
Webster’s defines the verb to “disregard” as “to treat without fitting respect or
attention,” “to treat as unworthy of regard or notice,” and “to give no thought to : pay no
attention.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 655 (2002). The word
“totally” is defined as “in a total manner : COMPLETELY, WHOLLY,” and the word “total”
is defined as “unqualified in extent or degree : ABSOLUTE, UTTER.” Id. at 2414-15.
Together, the terms “totally disregarded” mean to treat something as utterly or wholly
unworthy of regard or notice. Under chapter 71.05 RCW, the ITA is totally disregarded
when it is treated as wholly unworthy of respect or notice.
When considering the remedy for violations of the ITA, the act and C.W., which
the legislature relied on, say that the court should “focus on the merits of the petition, the
intent of the statute, and whether the State ‘totally disregarded the requirements of the
statute.’” C.W., 147 Wn.2d at 281 (emphasis added) (quoting Swanson, 115 Wn.2d at
31).
3
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
Understanding C.W. is critical to interpreting “totally disregarded” because the
legislature adopted that term from C.W. The case teaches that dismissal may be
appropriate in a “few cases,” id. at 283, but it should be used rarely and only after
considering legislative intent and the presumption that petitions be decided on their
merits. Id. at 281. That presumption furthers public and private interests because
releasing an individual who is in need of treatment implicates the well-being of those
individuals as well as public safety. RCW 71.05.010(2). These dual purposes are
reflected in the legislative intent of the ITA: to protect the health and safety of persons
suffering from behavioral health disorders and protecting public safety; preventing
inappropriate and indefinite commitments; providing prompt evaluation and timely and
appropriate treatment; safeguarding individual rights; providing continuity of care; and
encouraging full use of existing agencies, personnel, and public funds to prevent
duplication of services. RCW 71.05.010(1)(a)-(f).
Relevant here, this court has declined to dismiss commitment petitions for
timeliness violations in controlling ITA cases. In C.W., we held that hospitals had
violated the ITA’s six-hour time limit to refer patients for evaluations by designated
mental health professionals but concluded that dismissal of their commitment petitions
was not the appropriate remedy. 147 Wn.2d at 282. Swanson concerned the timing of a
probable cause hearing for a 14-day involuntary treatment petition. 115 Wn.2d at 23. In
that case, Swanson’s attorney moved unsuccessfully to dismiss the petition because the
initial 72-hour hold had expired prior to the court’s ruling. Id. at 23-24. On appeal, this
4
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
court held that for civil commitment purposes, a hearing begins when the court calendar
begins and parties’ attorneys are ready to proceed rather than when a hearing on a
specific petition begins. Id. at 31. Thus, Swanson concluded dismissal of the 14-day
petition was unwarranted because the State had not totally disregarded the ITA. Id. at 28.
Both C.W. and Swanson involved the failure to adhere to a time limit set out in the
ITA; and in both cases, this court held that dismissal was inappropriate when weighed
against the presumption of deciding cases on their merits and considering the intent of the
act. See C.W., 147 Wn.2d at 283. The court in both cases also recognized that the
detentions violated the ITA, but in neither case did this court consider the mental state
underlying the violation and in neither case did the court dismiss the petition.
Guided by C.W., the remedy of dismissal is available only in those few cases
where the action or inaction complained of disregards the fundamental purposes and
intent of the ITA. Id. at 281. This standard considers the presumption in favor of
deciding petitions on the merits, the goals of the ITA, and whether the requirements of
the ITA have been treated as wholly unworthy of respect or notice. 2
2
In examining whether the action or inaction complained of disregards the fundamental purposes
and intent of the ITA, it may be appropriate to consider some of the factors outlined by the Court
of Appeals. These factors may include the extent to which the petitioner’s conduct and the
committed person’s requested remedy safeguard the committed person’s health and safety,
ensure appropriate treatment, and are protective of public safety. Other considerations may be
whether the petitioner has a process in place to comply with statutory requirements; the extent to
which the petitioner attempted to comply with that process; and the actions of the petitioner upon
discovering a statutory violation—which concern the safeguarding of individual rights. See
Suppl. Br. of Resp’t N. Sound Telecare E&T Ctr. at 16; RCW 71.05.010(1)(d). Relevant
considerations should reflect the legislative intent of the ITA as set out in RCW 71.05.010(1).
5
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
In contrast with C.W. and Swanson, the majority concludes that the ITA has been
“totally disregarded” when a person is detained without legal authority under the act.
Majority at 14. Though it recites the dictionary definitions of the terms, the majority
takes a left turn analogizing “disregard” to the “very different context of negligent
homicide.” Id. In doing so, the majority seems to conclude that “total disregard” means
more than “‘minor oversights and inadvertences,’” and is instead a “‘more marked
dereliction than ordinary negligence.’” Id. (quoting State v. Eike, 72 Wn.2d 760, 765-66,
435 P.2d 680 (1967)).
This is a puzzling, inapt, and unnecessary analogy. It implies that criminal
negligence has a place in a court’s review of the civil commitment statutes. The majority
“[t]ake[s]” the dictionary definitions and, presumably, the negligent homicide analogy
“together” to hold that the ITA is totally disregarded when a person is involuntarily
detained without legal authority under the act. Id. But the majority does not return to the
criminal negligence analogy nor does it apply its apparent mental element to the facts of
this case, providing no guidance as to how that element fits into the analysis. The
negligent homicide discussion is a confusing detour.
In addition, the majority’s analogy to the criminal law fails to consider the
purposes of the ITA and the legislative intent that dismissal is an extraordinary remedy to
be seldom used. The court should not analogize to a different area of the law and
potentially further complicate matters, especially when the dictionary definitions provide
all the meaning necessary and more closely align with the legislature’s intent that
6
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
petitions be decided on the merits for the benefit of the detained person, their families,
and the public at large.
The majority also reasons that the ITA itself requires dismissal: “No person
committed under this section may be detained unless a valid order of commitment is in
effect.” Majority at 15 (emphasis omitted) (quoting RCW 71.05.320(8)). But this misses
the point.
There is no dispute that the civil commitment orders for the detained persons in
this case expired and they were held over in violation of the ITA. 3 The question before
us is whether that violation is a “total disregard” of the ITA and, if so, whether dismissal
is the appropriate remedy. Where a person is still in need of treatment, is receiving
treatment, and is eligible for a new commitment period, the failure to timely refile for a
new commitment period is not a “total disregard” of the purposes of the ITA.
The majority’s test for total disregard is also unhelpful because it is circular. The
involuntary commitment process is highly regulated, and the ITA is replete with
mandatory language. E.g., RCW 71.05.040 (“Persons with developmental disabilities,
impaired by substance use disorder, or suffering from dementia shall not be detained for
evaluation and treatment or judicially committed solely by reason of that condition.”
(emphasis added)), .110 (“Attorneys appointed for persons pursuant to this chapter shall
3
The majority adds that a judicial order involuntarily detaining a person under the ITA “is not
like a one year lease that expires but allows tenants to stay” over the time period of the lease.
Majority at 16 n.8. I agree. But I am, and no doubt readers of both opinions are, left puzzled as
to why the majority even raises this analogy considering neither the dissent nor any party
mentions residential leases and to do so risks making its opinion more confusing.
7
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
be compensated for their services.” (emphasis added)), .153(4) (“Within three hours after
arrival [at a designated treatment facility], not counting time periods prior to medical
clearance, the person must be examined by a mental health professional.” (emphasis
added)), .210(1)(a)(i), (ii) (“Each person involuntarily detained and accepted or admitted
at an evaluation and treatment facility . . . : . . . Shall, within twenty-four hours of [their]
admission or acceptance at the facility, not counting time periods prior to medical
clearance, be examined and evaluated by: . . . One physician, physician assistant, or
advanced registered nurse practitioner; and . . . One mental health professional.”
(emphasis added)). Thus, any time a provider fails to follow any mandatory provision of
the ITA (such as those listed above) they lack authority of law. Under the majority’s
holding, any misstep would result in dismissal. In other words, there will never be an
exception, only the rule. The ITA, however, plainly contemplates that dismissals will be
rare.
The majority’s test is also overly broad. Here, the mental health providers for
N.G., C.M., and A.C. filed new commitment petitions when the original orders expired.
The parties agree that new petitions could be filed. 4 The majority applies its rule not just
to the previously expired petitions but to the new petitions as well. This remedy of
dismissal attaches not only to actions taken without “authority of law”—it “remedies”
actions that are wholly compliant with the ITA.
4
N.G., C.M., and A.C. disagree as to when those petitions could be filed and whether release
was required prior to filing.
8
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
Applying the Majority’s “Totally Disregarded” Standard to a Subsequent, Properly
Filed Petition
The State argues, and the parties appear to agree, that new petitions for evaluation
and treatment are not precluded by prior ITA violations. Joint Suppl. Br. of the Att’y
Gen’s Off. & Pierce County Prosecuting Att’y’s Off. at 28-29 (noting N.G. and C.M. do
not argue that they are not redetainable in the future); Reply Br. of Appellant (Wash. Ct.
App. No. 82653-1-I (2021)) at 7 (“If A.C. continued to meet the criteria for commitment,
the State could simply file a new petition.”). The ITA permits the use of a person’s
recent history to determine whether that person should be civilly committed, that is,
whether they are gravely disabled, present a likelihood of serious harm, or are in need of
treatment. RCW 71.05.245(1). This history can include violent acts and, relevant here,
“recent history of one or more commitments” under the ITA or equivalent provisions in
another state. RCW 71.05.245(3)(a)-(b). Consideration of past commitments,
irrespective of whether those commitments included ITA violations, aligns with the
ITA’s intent. It furthers the goals of protecting persons with behavioral health disorders
based on their current behavior and recent history, which also assists in preventing
inappropriate commitments. RCW 71.05.010(1)(a)-(b).
As the parties acknowledge, the detained persons could be released for a minute or
two and then properly detained for new commitment proceedings. See Sealed Rep. of
Proc. (RP) (Aug. 5, 2020) at 3, 18 (noting C.M. could be released for minutes in the
community before almost immediate redetention). Inexplicably, the majority says these
new proceedings cannot commence without a physical release. But this makes little
9
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
sense since these new proceedings can properly include the individuals’ most recent
commitment history under RCW 71.05.245. While the majority’s holding would allow
the detained persons to have their liberty, it is a fleeting liberty. Apparently, the majority
would have mental health providers wait at the door for these individuals, who are clearly
in need of continued treatment, to be released and then refile for continued detention.
Undoubtedly, the ITA involves substantial curtailments of due process rights, but
nowhere does the act contemplate release for mere moments as a meaningful remedy for
total disregard of statutory requirements. The majority’s solution is an empty remedy.
Instead, the remedy of commencing a new petition while an individual is detained
is sensible and does not undermine the ITA’s goal of preventing indefinite commitments.
The commencement of new petitions involves numerous safeguards. Designated crisis
responders file petitions only after they determine the person meets the criteria for civil
commitment. RCW 71.05.150, .153. Holding a person past the expiration of their
original commitment orders does not create indefinite commitments. That individual is
entitled to multiple reviews of their current mental and behavioral status, from the
designated crisis responder to a judicial officer. At each point in this process, the
detained individual must be found to meet criteria for continued commitment or be
released. E.g., RCW 71.05.260 (mandating release if a professional determines the
person no longer meets criteria for detention). The individual’s need for treatment drives
the process, which requires additional protections as the potential commitment period
becomes longer. In re Det. of E.S., 22 Wn. App. 2d 161, 179, 509 P.3d 871 (2022)
10
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Madsen, J., concurring/dissenting
(quoting In re Det. of Dydasco, 135 Wn.2d 943, 947, 959 P.2d 1111 (1998) (“The act is
intended to be applied ‘in stages,’ with increasing terms of involuntary treatment and
detention to be accompanied by increasing procedural protections.”).
In civil commitment cases, courts must balance the interests of the detained person
with the interests of the State, as detailed in the ITA. See C.W., 147 Wn.2d at 281. When
persons are in obvious need of behavioral health services and pose serious risks of harm
to themselves or others, like the individuals in this case, the ITA’s purpose counsels
continued detention for treatment rather than release. Release without regard for the
individual’s needs and safety or that of the public upends the foundational purposes of the
ITA.
Application to N.G., C.M., and A.C.
Turning to the facts of this case, I would hold that the continued detention of N.G.,
C.M., and A.C. did not totally disregard the ITA. N.G.’s 180-day commitment expired
on December 24, 2019, but due to a computer error at Western State Hospital and a
mental health provider who moved positions, N.G.’s additional commitment petition was
not filed. About a month later, hospital staff discovered that the original order had
expired and because N.G.’s provider was concerned that release would place N.G. at
“serious risk of mortality,” summoned a designated crisis responder to conduct an
immediate investigation. Sealed Clerk’s Papers (CP) at 1-3; RP (Jan. 29, 2020) at 17.
The responder took N.G. into emergency custody, and the superior court subsequently
granted the hospital’s petition for 14 days of involuntary treatment over N.G.’s motion to
11
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dismiss. Western State staff testified that N.G. was dependent on them for health and
safety; the staff ensured N.G. would eat and provided continuous observation to prevent
N.G. from assaulting other patients and/or staff. Hospital staff further testified that N.G.
was aggressive on a continuous basis and that N.G. would frequently answer questions
with incoherent statements. If released, N.G. had no way to obtain shelter, had no
financial resources, was physically frail, and would not know to seek out resources or
assistance. One of N.G.’s providers testified that outside the hospital setting (without
security and staffing), N.G. would be at risk of self-harm and of harming others.
The holding over of N.G. was not a total disregard of the ITA when considering
the intent and purpose of the act. N.G.’s mental health provider was concerned that N.G.
would be at risk of mortality if released. Western State Hospital staff testified that N.G.
depended on them completely to meet N.G.’s health and safety needs, in addition to
protecting others from N.G.’s assaultive behavior. N.G. was physically frail, often
communicated incoherently, and lacked the cognitive ability to independently seek out
essential resources. Continuing detention protected N.G.’s health and safety, as well as
the general public. RCW 71.05.010(1)(a). Immediately commencing new commitment
procedures when the expired order was discovered prevented inappropriate and indefinite
commitment, and provided prompt evaluation and appropriate treatment by recalling a
designated crisis responder for a new evaluation and subsequent judicial oversight. RCW
71.05.010(1)(b)-(c). It also ensured the continuity of care for N.G.—continuing to work
with providers familiar with N.G. and their needs. See RCW 71.05.010(1)(e). Staff
12
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Madsen, J., concurring/dissenting
testimony made clear that N.G. could not, at that point, receive services outside the
hospital. See RCW 71.05.010(1)(f).
Moreover, Western State Hospital’s actions did not demonstrate a total disregard
for the ITA. The movement of staff to a new position and problems with the hospital
database led to the lapse of N.G.’s original commitment order. These were oversights to
be sure. But they do not evince an utter and complete lack of respect or regard for ITA
requirements. Even by the majority’s reasoning, Western State’s staffing and computer
problems amount to inadvertences rather than a “‘more serious dereliction.’” See
majority at 14 (quoting Eike, 72 Wn.2d at 765).
C.M. was diagnosed with schizoaffective bipolar disorder and had been detained
at Western State Hospital since 2016. C.M.’s 180-day commitment expired on June 23,
2020. C.M.’s providers had prepared a petition for additional commitment, but for
reasons unknown, the court hearing scheduler’s e-mails to the parties did not reach them,
and the scheduler was not aware of the error. Western State later investigated the cause
of that error and has undertaken steps to fix it. Nevertheless, C.M.’s commitment
expired, and no new order was issued for continuing treatment. Four days later, Western
State discovered the error and initiated new proceedings by calling for a crisis responder,
who evaluated and placed C.M. in emergency detention. As with N.G., C.M.’s providers
petitioned for additional treatment, and C.M. moved to dismiss the new petition, which
the court granted.
13
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I would also conclude that C.M.’s continued detention was not a total disregard of
the ITA. The record shows that C.M. has schizoaffective bipolar disorder, required two-
to-one staff monitoring, and was described as one of the most assaultive patients at
Western State Hospital. During C.M.’s commitment, C.M. was continuously assaultive,
except for a six-month period from 2019 to 2020. The assaults were apparently
“indiscriminate” and occurred with and without provocation. CP at 91. When C.M. was
transferred to a different ward, specifically created to work with the most assaultive
patients at the hospital, C.M.’s behavior resulted in the use of restraints to ensure the
safety of C.M. and others.
Releasing C.M. in light of the violent and assaultive behaviors posed a risk of
danger to public safety. See RCW 71.05.010(1)(a). After Western State discovered that
C.M.’s commitment order had elapsed, the hospital initiated new proceedings and called
for a crisis responder, who conducted a new evaluation and determined C.M. should be
placed in emergency detention. As with N.G., commencing new proceedings for C.M.
ensured against inappropriate and indefinite commitment, provided speedy evaluation
and proper treatment, as well as continuity of care with staff in the same hospital. See
RCW 71.05.010(1)(b), (c), (e), (f).
While Western State’s actions in C.M.’s case show mismanagement, they do not
show a total disregard for the ITA. As noted, the hospital prepared a new commitment
petition weeks before the original order expired and properly sent it to the court hearing
scheduler. The scheduler also followed the proper procedure, but technology issues
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prevented completion of that procedure. Indeed, the scheduler was not notified of the
error and thus had no opportunity to timely fix it. This is not a complete lack of notice or
regard for the ITA, rather, it is evidence of an attempt to comply with the act and a
technology failure.
A.C. has been diagnosed with schizoaffective disorder and sometimes has
paranoia and delusions. During one such incident, A.C. was evaluated by a designated
crisis responder and detained for treatment. A.C.’s 14-day commitment expired on
April 21, 2021, but A.C. agreed to a 6-day continuance until April 27, 2021. On
April 26, 2021, 1 day before A.C.’s hearing on that commitment, A.C. declined to be
medicated, yet nurses still administered medication. At the April 27 hearing, the parties
agreed that this was an error. The State sought a 1-day continuance so A.C. could appear
unmedicated, which the court granted. On April 28, 2021, the commissioner ordered
A.C. to undergo 90 days of additional treatment.
On appeal, A.C. argued that a continuance was improper because the commitment
period had expired and the forced medication totally disregarded the ITA. In re Det. of
A.C., No. 82653-1-I, slip op. at 6-7 (Wash. Ct. App. Jan. 18, 2022) (unpublished),
https://www.courts.wa.gov/opinions/pdf/826531.pdf. The Court of Appeals disagreed,
noting that RCW 71.05.280, which governs 14-day commitments, does not contain
mandatory release language and that RCW 71.05.236 expressly allows continuances in
commitment proceedings. Id. at 7. This shows that the legislature contemplated
continuances that extend a 14-day commitment can occur and that dismissal is not
15
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
required. Id. The court also concluded that the commissioner in A.C.’s case examined
the competing factors in the ITA and properly found that deciding the case on the merits
was more important than the policy considerations in the statute, and the safety of A.C.
was more important than the strict statutory time requirement of the act. Id. at 9.
I agree with the Court of Appeals below and the majority here that in A.C.’s case,
the ITA’s requirements were not totally disregarded. See majority at 17-18. However, I
depart from the majority’s statement that A.C., unlike C.M. and N.G., was “never held
without authority of law.” Id. at 17. A.C. was brought before a judge on the day the
original commitment order expired, April 27, 2021, but A.C. had been improperly
medicated, and the court granted a continuance until April 28. This plainly violated the
ITA’s time requirements. By the majority’s own reasoning, A.C. was held without
authority under the ITA, and accordingly, A.C. should have been released. But, because
the court was involved and the medication violation required only 24 hours to remedy,
the majority is satisfied that the ITA was not totally disregarded. See id.
Without saying so, the majority appears to create a “de minimis” exception to its
rule that holding a person without lawful authority is a total disregard of the ITA and
merits dismissal. This undefined standard is unhelpful to court commissioners and trial
judges working every day to interpret Washington’s civil commitment statutes properly
and justly. The majority cannot have it both ways—either authority of law in the form of
a valid commitment order is required to hold over individuals under the ITA or it is not.
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
Our case law and the ITA itself, however, do not require such a rule. Instead, we
should consider whether the action or inaction complained of prevents the fundamental
purposes of the ITA when determining whether the act’s requirements have been totally
disregarded. See RCW 71.05.010(2). I would hold that the detention of the individuals
here was not a total disregard of the ITA and that dismissal was not the appropriate
remedy. 5
With these considerations in mind, I respectfully concur in part and dissent in part.
5
While dismissal is a remedy to be rarely used, persons held over their commitment periods are
not without recourse. Relevant here, detention “for more than the allowable number of days”
can result in civil damages. RCW 71.05.510. As the State details, other remedies may be sought
such as 42 U.S.C. § 1983 actions, habeas corpus or personal restraint petitions, and professional
discipline for providers who fail to abide by the ITA. Joint Suppl. Br., supra, at 21-22. Another
remedy could be a motion to vacate prior involuntary commitment orders. Courts considering
future involuntary commitment petitions may consider prior orders and a person’s recent history
when making a commitment determination. Thus, seeking to vacate a past involuntary
commitment would ensure against relying on those improper commitments in subsequent
actions. See In re Det. of M.K., 168 Wn. App. 621, 629, 279 P.3d 897 (2012). Unlike dismissal,
these remedies better serve the legislative intent to focus on the merits of the petition, an
individual’s needs and safety, and safety of the public.
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No. 100668-3 (consol. w/100690-0)
Madsen, J., concurring/dissenting
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