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AGLO 1976 No. 53 - September 02, 1976
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

INSANE PERSONS ‑- MENTAL ILLNESS ‑- RECOMMITMENT OF VOLUNTARY PERSONS UNDER CHAPTER 71.05 RCW

Right of a mentally ill person who has been involuntarily committed to apply for voluntary status; procedures to be followed in recommitment of such a person to an involuntary patient.

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                                                               September 2, 1976

Honorable Don Herron
Prosecuting Attorney
Pierce County
946 County-City Building
Tacoma, Washington 98402                                                                                                               Cite as:  AGLO 1976 No. 53

Dear Sir:

            By letter previously acknowledged you have requested our opinion on certain questions regarding the rights of mentally ill persons who have been civilly committed for treatment under the provisions of chapter 71.05 RCW.  We paraphrase those questions as follows:

            (1) May a mentally ill person who has been involuntarily committed under chapter 71.05 RCW apply for and be placed on voluntary status ‑

            (a) During the initial 72-hour period covered by RCW 71.05.150 and 71.05.170?

            (b) During the additional 14-day period of possible involuntary commitment provided for by RCW 71.05.230?

            (c) During the further additional periods which are covered by RCW 71.05.280, et seq.?

            (2) To the extent that the foregoing question is answered in the affirmative and a mentally ill person, while on voluntary status during the uncompleted portion of a court ordered 90-day period of involuntary detention under RCW 71.05.280, seeks to be released, may he nevertheless be detained for the remainder of the period covered by the applicable order of commitment without the reinitiation of involuntary commitment proceedings?

            We answer your first question in the manner set forth in our analysis and your second question in the negative.

                                                                     ANALYSIS

            Question (1):

            Chapter 71.05 RCW codifies the relevant portions of  [[Orig. Op. Page 2]] the Civil Commitment Act of 1973, as enacted pursuant to §§ 6-63, chapter 142, Laws of 1973, 1st Ex. Sess.  Under this act (together with subsequent amendments thereto which are now also codified in chapter 71.05 RCW) a basic distinction is drawn between voluntary and involuntary commitment.  Thus, at the outset, RCW 71.05.050 provides that:

            "Nothing in this chapter shall be construed to limit the right of any person to apply voluntarily to any public or private agency or practitioner for treatment of a mental disorder, either by direct application or by referral. . . ."

            Involuntary commitments, on the other hand, are covered by RCW 71.05.150-71.05.340.  Under this series of statutes a mental health professional1/ designated by the county in which the person alleged to be suffering from a mental disorder is living has the initial authority to cause such person to be involuntarily committed for a period not in excess of 72 hours for the purpose of evaluation and treatment.  See, RCW 71.05.150(2) and RCW 71.05.170.  During or upon completion of this first period of detention the patient may either be released, retained on a voluntary basis, or held for a further 14-day period of involuntary evaluation and treatment.  RCW 71.05.230 and RCW 71.05.290.  Among the conditions which must be met in order for this additional 14-day period of involuntary treatment to be imposed is the following, as set forth in RCW 71.05.230(2):

            "The person has been advised of the need for voluntary treatment and the professional staff of the facility has evidence that he has not in good faith volunteered; . . ."

            Thus, in answer to the first part of your opening question it appears clear that during the 72-hour period of involuntary detention covered by RCW 71.05.150 and 71.05.170,supra, the patient does have, in effect, an express statutory  [[Orig. Op. Page 3]] ability to convert, in good faith, to voluntary status.  If, on the other hand, the patient does not so convert (and is not released) but, instead, is detained for an additional 14 days in accordance with RCW 71.05.230, the applicable statute with respect to a release or change in status during that period is RCW 71.05.260 which reads as follows:

            "(1) Involuntary treatment ordered at the time of the probable cause hearing shall be for no more than fourteen days, and shall terminate sooner when, in the opinion of the professional person in charge of the facility or his professional designee, (a) the person no longer constitutes a likelihood of serious harm to himself or others, or (b) no longer is gravely disabled, or (c) is prepared to accept voluntary treatment upon referral, or (d) is to remain in the facility providing intensive treatment on a voluntary basis.

            "(2) A person who has been detained for fourteen days of intensive treatment shall be released at the end of the fourteen days unless one of the following applies:  (a) Such person agrees to receive further treatment on a voluntary basis; or (b) such person is a patient to whom RCW 71.05.280 is applicable."

            Again, however, the language of this statute implies an ability on the part of a patient who is covered thereby, to be switched from the status of an involuntarily committed person to that of one agreeing to receive voluntary treatment during the additional 14-day period of detention to which the statute applies.  A somewhat different problem, however, is posed at the next stage of the proceedings.  RCW 71.05.280 provides that:

            "At the expiration of the fourteen day period of intensive treatment, a person may be confined for further treatment pursuant to RCW 71.05.320 for an additional period, not to exceed ninety days if:

            "(1) Such person has threatened, attempted,  [[Orig. Op. Page 4]] or inflicted physical harm upon the person of another or himself after having been taken into custody for evaluation and treatment, and, as a result of mental disorder presents a likelihood of serious harm to others or himself; or

            "(2) Such person was taken into custody as a result of conduct in which he attempted or inflicted physical harm upon the person of another or himself, and continues to present, as a result of mental disorder, a likelihood of serious harm to others or himself; or

            "(3) Such person is in custody because he has committed acts constituting a felony, and as a result of a mental disorder, presents a substantial likelihood of repeating similar acts.  In any proceeding pursuant to this subsection it shall not be necessary to show intent, wilfulness, or state of mind as an element of the felony; or

            "(4) Such person is gravely disabled.

            "For the purposes of this chapter 'custody' shall mean involuntary detention under the provisions of this chapter or chapter 10.76 RCW, uninterrupted by any period of unconditional release from a facility providing involuntary care and treatment."

            In the case of patients whose period of involuntary commitment has been extended for an additional 90 days under the provisions of this statute (or for that matter in the case of patients committed for an additional 180 days pursuant to RCW 71.05.320) there is no specific statutory provision, comparable to RCW 71.05.230(2) or RCW 71.05.260, supra, under which a "right" to go voluntarily may be asserted.  Nevertheless, in our opinion, essentially the same result may be reached in a somewhat indirect manner.

            RCW 71.05.330, which governs releases from both 90 day and 180 day commitments, provides that:

            "Nothing in this chapter shall prohibit the superintendent or professional person in charge of the hospital or facility in which the person is being involuntarily treated from releasing him prior to the expiration of the commitment period when,  [[Orig. Op. Page 5]] in the opinion of the superintendent or professional person in charge, the person being involuntarily treated no longer presents a likelihood of serious harm to others.

            "Whenever the superintendent or professional person in charge of a hospital or facility providing involuntary treatment pursuant to this chapter releases a person prior to the expiration of ninety days, the superintendent or professional person in charge shall in writing notify the court which committed the person for treatment."

            And, as earlier noted, RCW 71.05.050, supra, states that:

            "Nothing in this chapter shall be construed to limit the right of any person to apply voluntarily to any public or private agency or practitioner for treatment of a mental disorder, either by direct application or by referral. . . ."

            In order to be released from an involuntary commitment pursuant to the first of these two statutes, of course, the specific condition set forth therein must be met; i.e., the superintendent or professional in charge of the particular facility must be of the opinion that ". . . the person being involuntarily treated no longer represents a likelihood of serious harm to others."  But once such a release has been obtained the patient may be viewed as having the same right, under RCW 71.05.050, supra, to receive further treatment on a voluntary basis as would a person who had not previously been involuntarily committed.  Moreover, while a patient can be released pursuant to RCW 71.05.330 regardless of his or her willingness to remain at the facility on a voluntary basis, a good faith willingness to continue treatment on a voluntary basis could well be accepted as valid evidence that the patient no longer presents a likelihood of serious harm to others ‑ thus justifying a release from involuntary commitment under that statute.

            In summary, then, our answer to your first question is as follows:

            An involuntary patient may apply for voluntary treatment at any time.  Such a patient, however, only has a capacity to be converted directly to voluntary status under certain specified circumstances during the initial, 72-hour, period of detention covered by RCW 71.05.150(2) and 71.05.170, supra, or  [[Orig. Op. Page 6]] the additional 14-day period provided for by RCW 71.05.230, supraThereafter, an involuntary patient ‑ in order to "go voluntary" ‑ must first obtain a release from detention in accordance with RCW 71.05.330,supra, and then become, in effect, a voluntary patient in accordance with RCW 71.05.050, supra.

            Question (2):

            With these conclusions in mind we turn, next, to your second question.  Repeated for ease of reference, this question (as above paraphrased) asks:

            To the extent that the foregoing question [i.e., question (1)] is answered in the affirmative and a mentally ill person, while on voluntary status during the uncompleted period of a court ordered 90-day period of involuntary detention under RCW 71.05.280, seeks to be released, may he nevertheless be detained for the remainder of the period covered by the applicable order of commitment without the reinitiation of involuntary commitment proceedings?

            WAC 275-55-210, a regulation promulgated by the department of social and health services under RCW 71.05.070(1) and RCW 71.05.560, provides that:

            "Patients committed by court order to involuntary treatment shall have all rights of voluntary patients where the facility has converted the patient to voluntary status and the patient has signed an application to receive voluntary treatment."

            One of the rights of a voluntary patient under RCW 71.05.050,supra, is that of being released immediately upon request ‑ subject only to the following proviso:

            ". . .  Provided however, That if the professional staff of any public or private agency regards a person voluntarily admitted who requests release as presenting, as a result of a mental disorder, an imminent likelihood of serious harm to himself or others, or is gravely disabled, they may detain such person for sufficient time to notify the designated county mental health professional of such person's condition to enable such mental health professional to authorize such person being further held in custody or transported to an evaluation and treatment center pursuant to the provisions of this chapter, which shall in ordinary circumstances be no later than the next judicial day."

             [[Orig. Op. Page 7]]

            There are two types of release from a 90-day commitment.  These are early release pursuant to RCW 71.05.330, supra, and conditional release pursuant to RCW 71.05.340.  The conditional release provisions of the latter include specific procedures for revocation of release for the remainder of the court ordered commitment period where the patient violates the conditions of his release.  There are, however, no provisions in the Civil Commitment Act for revocation of releases which are not conditional.  A release which is not conditional by its very nature cannot be revoked because it is not based on any conditions to be followed by the patient.

            The authority of a county designated mental health professional is totally dependent on the terms of the Civil Commitment Act.  There is no statutory authority for such a person to take action other than that of causing an initial 72-hour detention to commence and then later petitioning for an additional 14-day involuntary treatment order to detain the committed individual under RCW 71.05.230(4).

            Before or after unconditional release from a 90-day involuntary commitment a patient may choose to seek treatment on a voluntary basis, as we have above seen.  The fact that a patient seeking voluntary treatment was previously committed does not change in any respect his rights as a voluntary patient.  If, as a voluntary patient, the individual sought to be released, he could however be detained pursuant to RCW 71.05.050, supra, so that the county designated mental health professional could take appropriate action.  But the detention of a voluntary patient under that statute is limited to those cases where the professional staff views the patient as presenting an imminent likelihood of serious harm or as being gravely disabled.

            Thus, the only means by which an individual who has become a voluntary patient may be returned to the legal status of an involuntary patient is through the reinstitution of the commitment procedures covered by RCW 71.05.150, et seq.,supra.  The mere fact that the time period covered by the previous order of involuntary commitment for 90 days under RCW 71.05.280, et seq., is still running is immaterial, in our opinion, because the legal status of the patient has, in the meantime, so changed as to cause that order no longer to be applicable.  Therefore, in short, we believe  [[Orig. Op. Page 8]] that your second question must be answered in the negative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

STEVEN HOSCH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Defined by RCW 71.05.020(11) to mean:

            ". . . a psychiatrist, psychologist, psychiatric nurse, or social worker, and such other mental health professionals as may be defined by rules and regulations adopted by the secretary pursuant to the provisions of this chapter;"

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