In re Z.L.

In re the Detention of: Z.L., Petitioner.

No. 54645-1-II

Court of Appeals of Washington, Division 2

August 17, 2021

UNPUBLISHED OPINION

MAXA J.

ZL appeals the trial court's order committing him to involuntary treatment for up to 180 days under chapter 71.05 RCW after a jury found that he was "gravely disabled" as a result of a mental disorder as defined by former RCW 71.05.020(22) (2019).

We hold that (1) the trial court did not err when it admitted evidence regarding ZL's Type 1 diabetes because his ability to manage his diabetes was relevant to whether he was gravely disabled as a result of a mental disorder; and (2) the trial court erred when it allowed an expert witness to testify that his opinions were supported by clear, cogent and convincing evidence, but that the error was harmless. Accordingly, we affirm the order committing ZL to involuntary treatment for 180 days.

FACTS

Background

At the time of his involuntary commitment, ZL was a 37-year-old man with schizophrenia and antisocial personality disorder. ZL also had Type 1 diabetes, which meant that his body could not make insulin on its own. As a result, ZL relied on regular insulin injections and blood sugar checks, along with a controlled diet. ZL initially was committed for 90 days at Western State Hospital (WSH) in October 2019 pursuant to a superior court commissioner's order.

Petition for Involuntary Treatment

In December 2019, Dr. Susan Lin and Dr. Leslie Sziebert at WSH filed a petition in superior court for involuntary treatment for an additional 180 days on the grounds that ZL remained gravely disabled as a result of a mental disorder. In March 2020, Dr. Lin and Dr. Sziebert filed an amended petition adding that ZL also had threatened, attempted, or inflicted physical harm upon another person or substantial damage to another's property and therefore presented a likelihood of serious harm.

Jury Trial

ZL requested a jury trial. Before the trial started, ZL filed a motion to exclude all testimony regarding his Type 1 diabetes. The trial court denied the motion.

At the commitment trial, Sabrina Bauer, a registered nurse who worked with ZL, testified that she had witnessed ZL be verbally and physically aggressive with other people at WSH. Bauer watched ZL punch another patient in the back of her head, make verbal threats to the patient, and spit on the patient and on other staff members. Bauer also explained that ZL was not compliant 80 percent of the time for his blood sugar checks relating to his diabetes.

Dr. Lin testified that she was ZL's treating psychologist. She stated that ZL's primary diagnosis was schizophrenia which caused him to have grandiose delusions such as believing that he owned mansions and several law firms, had won several Grammy awards, and had cured acquired immunodeficiency syndrome (AIDS). Dr. Lin stated that ZL's secondary diagnosis was antisocial personality disorder. Dr. Lin testified that ZL's demeanor fluctuated from speaking cordially and coherently to speaking to no one in particular. She stated that ZL generally knew where he was and what day it was, but that he did not believe that he was supposed to be at WSH. She noted that ZL had some cognitive and volitional control over his behavior and that he was able to tend to his hygiene.

Dr. Lin opined that ZL was not ready for discharge and that he was gravely disabled as a result of his mental illness because "he would not be able to take care of his own health and safety needs" without support from WSH. 2 Report of Proceedings (RP) at 124. Dr. Lin explained that WSH staff had to prompt ZL several times a day to get out of bed, to eat his meals, and to take his medications. She emphasized that it was necessary for ZL to eat because of his Type 1 diabetes. She stated that if ZL stopped taking his antipsychotropic medications, his psychiatric symptoms would be exacerbated and he would become more aggressive. Finally Dr. Lin opined that ZL presented a likelihood of serious harm to himself or others.

Dr Sziebert testified that he was a psychiatrist and that he was the head of ZL's treatment team. He testified that ZL suffered from schizophrenia and antisocial personality disorder and that he exhibited grandiose delusions and auditory hallucinations. However, ZL did not accept the fact that he had a major psychiatric diagnosis.

Dr. Sziebert also stated that ZL had Type 1 diabetes, which was different than Type 2 diabetes. Specifically, he explained that as a Type 1 diabetic individual, ZL had to be 100 percent compliant with his prescribed medications and treatments, especially blood sugar checks, and had to eat appropriate foods because his body could not create insulin by himself. Dr. Sziebert stated that ZL sometimes was not compliant with his blood sugar checks and insulin injections. He also stated that ZL mostly was non-compliant with his dietary needs. Dr. Sziebert struggled to control ZL's diabetes even in the very structured environment of WSH.

Dr. Sziebert testified that ZL's control of his diabetes was connected to his mental condition. Because of ZL's grandiosity, his attitude was "[r]ules don't apply to me, and if I feel like doing it, it's okay." 2 RP at 219. Dr. Sziebert opined that ZL was gravely disabled because he was unable to manage his diabetes and that failure to control his diabetes could result in the loss of a leg or arm or even death. Dr. Sziebert also testified that he believed that ZL presented a likelihood of repeated acts of violence to a reasonable degree of scientific certainty.

The State then asked Dr. Sziebert whether his opinion that ZL was not ready for discharge was based on a clear, cogent, and convincing degree of certainty, and he agreed. Dr. Sziebert also agreed that his opinions that ZL had a mental condition and that he was gravely disabled were "by clear, cogent, and convincing evidence." 2 RP at 188-89. ZL objected to each of the questions that referenced clear, cogent and convincing evidence, but the trial court overruled the objections.

As part of the jury instructions, the trial court instructed the jury that they were the "sole judges of the credibility of the witness" and the "value or weight to be given to the testimony of each witness." Clerk's Papers at 67. The court also instructed the jury that the petitioners had the burden to prove each element of their case by clear, cogent, and convincing evidence.

The jury found that ZL had a mental disorder and was gravely disabled as a result of a mental disorder. The jury also found that ZL had threatened, attempted, or inflicted physical harm upon another or himself or substantial damage upon another's property and that as a result of his mental disorder, he presented a likelihood of serious harm to himself, others, or property of another. The trial court entered an order to involuntarily treat ZL for up to 180 days.

ZL appeals the trial court's order.

II ANALYSIS

A. INVOLUNTARY TREATMENT ACT

The involuntary treatment act (ITA), chapter 71.05 RCW, governs the temporary detention for evaluation and treatment of persons with mental disorders.

Former RCW 71.05.320(4) (2018) provides that after the initial commitment period, the person in charge of the facility in which a person is committed may file a new petition for involuntary treatment on various grounds. Relevant here, a new petition may be filed on the grounds that he or she continues to be gravely disabled. Former RCW 71.05.320(4)(d). Former RCW 71.05.020(22)^[1] defines "gravely disabled" as a condition in which a person, because of a mental disorder:

(a) Is in danger of serious physical harm resulting from a failure to provide for his or her essential human needs of health or safety; or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety.

This statute provides two alternative definitions of "gravely disabled," and either provides a basis for involuntary commitment. In re Det. of LaBelle, 107 Wn.2d 196, 202, 728 P.2d 138 (1986).

In addition, a new petition for involuntary treatment may be filed when a person who:

(a) During the current period of court ordered treatment: (i) Has threatened, attempted, or inflicted physical harm upon the person of another, or substantial damage upon the property of another, and (ii) as a result of a mental disorder, substance use disorder, or developmental disability presents a likelihood of serious harm.

Former RCW 71.05.320(4)(a) (emphasis added). The term "likelihood of serious harm" means:

(a) A substantial risk that . . . (ii) physical harm will be inflicted by a person upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm; or (iii) physical harm will be inflicted by a person upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; or

(b) The person has threatened the physical safety of another and has a history of one or more violent acts.

Former RCW 71.05.020(35) (2019).

To support an involuntary commitment, a person's grave disability or likelihood of serious harm must be as a result of a "mental disorder." Former RCW 71.05.320(4)(a); former RCW 71.05.020(22). "Mental disorder" is defined in RCW 71.05.020(37)^[2] to mean "any organic, mental, or emotional impairment which has substantial adverse effects on a person's cognitive or volitional functions."

In a civil commitment proceeding, the State has the burden of proving that a person is gravely disabled or presents a likelihood of serious harm by...