';'niin .JF en§i:i?tsi`G-.” zoiéiiov 25 my 8, 37 z-;"_» . _. £_'=! w Ui`= `, ¢. lN THE COURT OF APPEALS OF THE STATE OF WASHINGTON in the Niatter of the Detention of DlVlS|ON ONE C.A.C., No. 77173~6-| Appeilant. PUBLESHED OP|NlON v\_-/'\-_/V'\./‘\~/'\\_/ FlLED: November 26, 2018

DW¥ER, J. _~ C.A.C. appeals from a 14-day involuntary treatment commitment orderl C.A.C. contends that the designated mental health professional who recommended his initial detention did not fulfill the requirement of a statute that required a designated mental health professionat to “consuit With any examining emergency room physician regarding the physicians observations and opinions reiating to the person’s condition.”1 We disagree and affirm. l On June 20, 20t7, Jennifer Palmei', a designated mental health professional (DMHP), received a referral regarding C.A.C. Whiie C.A.C. Was staying in his father’s horne VVhen Palrner arrived, she found that C.A.C. had barricaded himself in the home and refused to ieave, ieading Paimer to request police assistance After poiice arrived, Paimer evaiuated C.A.C. in the horne without a physician present Palrner directed that C.A.C. be piaced in emergency

1 Former RCVV 71.05.154 (2013).

No. 77173-6-¥/2 custody for no more than 72 hours pursuant to former RCW 71.05.153 (2015).

C.A.C. was taken to Fairfax Hospitai.

Within the 72 hour-period, Sonia i<otti<e, a psychiatric advanced registered nurse practitioner at i=airfax |-iospitai, filed a petition in superior court, requesting a 14-day commitment for invoiuntary treatment C.A.C. rnoved to dismiss the petition on the ground that the DMHP had violated former RCW 71 .05.154 (2013)2 by not consulting with an emergency room physician before recommending detention The triai court heard arguments on this motion and denied it, reasoning that former RCW 71.05.154 did not “create[] an affirmative obligation [tor a DiVii-IP] to seek out an emergency room physician where the . . . investigation . . . is happening in the field." Atter denying C.A.C.’s motion, the trial court heid a probable cause hearing as to the 14-day invoiuntary treatment petition pursuant to RCW 71.05.240. The triai court ordered the commitment C.A.C. appeals from that order. li C.A.C. avers that Pa|mer violated former RCW 71 .05.154 by not consulting with an emergency room physician before making the decision to detain him. l-ie contends that this failure amounted to a total disregard of the

2 Former RCW 71.05.154 was amended effective April 1, 2018, removing the language "rnust consult with any examining emergency room physician regarding the physicians observations and opinions relating to tire person's condition, and whether, in the view of the physician, detention is appropriate” at issue herein. Tne current statute requires the designated crisis responder to take serious consideration or “observations and opinions by an examining emergency room physician, advanced registered nurse practitioner, or physician assistant." RCW 71.05.154 (2018). ..2- NO. 77t73-6-|l3 requirements of the involuntary treatment act (lTA)3 and, thus, that his detention was unlawfui. We disagree1 The meaning of the statute is a question of law that we review de novo.5 State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). The statutory language at issue herein is part of the statutory scheme of the lTA.

When construing the requirements of this chapter the court must focus on the merits of the petition, except where requirements have been totaiiy disregarded, as provided in ln re C.W., 147 Wn,2d 259, (2002). A presumption in favor of deciding petitions on their merits furthers both public and private interests because the mental and physicai well-being of individuais as weil as public safety may be implicated by the decision to reiease an individual and discontinue his or her treatment.

Former RCW 71 .05.0i 0(2) (2€)15).6 Pursuant to former RCW 71.05.153(1) (20‘i 5),7 a "designated mental health protessional” who received “information aileging that a person, as the result of a mentai disorder, presents an imminent likelihood of serious harm, or is in imminent danger because of being gravely disabled . . . rnay take such person, or cause by oral or Written order such person to be taken into emergency custody

3 Cn. 71.05 RCW.

4 The parties agree that this issue is not moot and is properly before us on review. §e_e ln re Det. of Nl.K., 168 Wn. App. 821l 628, 279 P.3d 897 (2012) ("iE]ach commitment order has a collateral consequence in subsequent petitions and hearings, aliowing us to render relief if we hold that the detention under a civii commitment order was not Warranted.") in making our determination, we are not bound by prior decisions of other divisions of the Court of Appeals. |n re Pers. Restraint ofArnold, 190 Wn.2d 136, 138, 410 P.3d 1133 (2018).

6 RCW 71.05.010 Was subsequentiy amended effective April 1, 2018, to extend its scope to persons with substance use disorders. No changes were made to the language of RCW .05.010(2). §g_e_ RCW 71.05.010 (2018).

7 RCW 71.05.153 was subsequently amended effective April 1, 2018. The changes to RCW 71 .05.153(1) consist solely of replacing the term "designated mental health professiona|" with "designated crisis responder.” §gg RCW 71 .05.153(1) (20t8). _3_ No. 77173-6-»l/4 in an evaiuation and treatment facility for not more than seventy~two hours.” in turn, former RCW 71 .05.154 provided that: A [DlVlHP] conducting an evaluation of a person under RCW 71.05.150 or 71.05.153 must consuit with any examining emergency room physician regarding the physicians observations and opinions relating to the person’s condition, and whether, in the view of the physician, detention is appropriate The [DIV|HP] shall take serious consideration of observations and opinions by examining emergency room physicians in determining whether detention under this chapter is appropriate The [Di\/li-|P} must document the consultation with an examining emergency room physician, including the physician’s observations or opinions regarding whether detention of the person is appropriate Division Two has held that former RCW 71.05.154 required a DMHP to consult with an emergency room physician every time a decision to detain is made See in re Detention of K.R., 195 Wn. App. 843, 846, 381 P.3d 158 (2016). The respondent in that case had been taken to a hospital8 but had then been transferred to a rehabilitation center wherein the DlVli-iP consulted With a registered nurse and a certified rehabilitation counselor. K.R., 195 Wn. App at 845-48. The DlVlHP subsequently petitioned for a 72-hour detention K.R., 195 Wn. App at 846. in holding that K.R.’s detention Was improper, Division “i‘wo rejected an interpretation of former RCW 7‘i .05.154 that would not require DNli-iPs to consult with physicians where none were available At oral argument, the State argued that because RCW 71 .05.153 allows a person to be taken to places other than a hospita|, a DMHP is not actually required to consult with an examining physician 'l'he State’s argument ignores the explicit requirement in RCW 71.05.154 that a DNil-lP “must consult with any examining emergency room physician” and that the DlVll-lP “musf document the consultation with an examining emergency room physician,

8 The opinion states only that "K.R. was transported by the sheriffs deputy first to a hospital in Vancouver_” K.R., 195 Wn. App. at 845. lt does not indicate the nature or length of K.R.’s stay at the hospital or whether K.R. was treated in an emergency room. -4, No. 77173-6-|/5 including the physicians observations or opinions regarding whether detention of the person is appropriate,” RCW 71 .05.154 (emphasis added).

K.R., 195 Wn. App. at 848 n.5. it is undisputed that, when C.A.C. was initially detained, there was no examining emergency room physician present or involved in his care C.A.C. relies on K.R. and its strict interpretation of former RCW 71.05.154 to contend that his initial detention was improper. l-iowever, such an interpretation could render detentions made outside of hospital emergency room settings onerous or even impossible Pursuant to the interpretation adopted by the K.R. court, a DlVlHP would be unabie to make the decision to detain a person without first transporting that person to a hospital emergency room and waiting until a physician became available Confronted with this issue, the trial court herein interpreted former RCW .05.154 as follows: l have ruled before and would rule again today that it’s really the word “any" in the first sentence of [RCVV 71 .05.154] that drives the court’s analysis that this is not a statute that creates an affirmative obligation to seek out an emergency room physician where the interaction, investigation, and decision is happening in the fieid, rather it places an affirmative responsibility on the Dll/iHP to seek out, consult with, and consider the input of an emergency room physician who, given the circumstances of a particular case, is engaged in the evaluation and care of the patient.

We agree with the trial court that the phrase “any examining emergency room physician” indicates that the legislature contemplated situations in which a detention would have to be commenced outside the presence of an examining physician The term “any” indicates one of an existing set of physicians, _5_ No. 77173-6-|/6 “indicat[ing] a positive but undetermined number or amount.” WEBsTER’s Tl-iiao Nsw lhTERNArloNAL DicrioNARY 97 (2002). When there is no “positive . . . number or amount” of physicians available it follows that there is not “any” one physician with whom to consult Thus, given that no examining emergency room physician had observed the respondentl the physician consultation requirement of subsection .154 did not apply to the DMl-IP’s determination This interpretation is consistent with RCW 71.05.153(1), which both anticipated DMHPs making decisions to detain outside cfa hospital setting and the transportation of respondents to places other than hospital emergency rooms. it is also consistent with the legislative intent of the lTA “[t]o provide prompt evaluation and timely and appropriate treatment of persons With serious mental disorders.” Forrner RCW 71 .05.010(1)(0) (2015).

Given that there was not “any examining emergency room physician” at C.A.C.’s father’s house when the decision to detain was made, the DIVlHP herein acted lawfully in evaluating C.A.C. and directing his detention The trial court did not err by denying C.A.C.’s motion to dismiss9

9 As this holding concerns an iteration of a statute that is no longer in effectl there is a possibility that the construction of former RCW 71.05.154 may not resurface as an issue in our courts. We operated on such an understanding when deciding in re Det. of G.S.Y_, No. 76267-2-|, (Wash. Ct. App. .June 18, 2018) (unpubiished), http:lfwww.courts.wa.govi'opinionslpdfl762672.pdf, an opinion that declined to follow Division Two’s holding in M but that was not published We now have yet another case We recognize that trial courts in Division One are left without clear guidance as to how former RCW 71 .05.1 54 is to be applied, due to the existence of an unpublished opinion from this division that is not in accord with another division’s published opinion Hence, this published opinion. _6_ No. 77173-6-|/7 Atfirmed.

We concur: l