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Mental Health Law

Psychiatric Boarding: How Some Arizona Hospitals Misuse the Law to Involuntarily Detain Patients

Involuntary civil commitment of suspected mental health patients is an extreme infringement of a person’s liberty and cannot be accomplished without strict compliance to due process procedures designed to protect the individual.

Josh Mozell, Mental Health Attorney



By Joshua Mozell


In June 2016, Phoenix-area residents “John Doe” and his wife “Jane” got into a heated discussion at their home. Each had a few too many drinks, and their discussion soon became an argument. Admittedly intoxicated and therefore not careful with her words, Jane told John that she was going to leave him. John, understandably surprised and upset, and also intoxicated, told Jane that if she left him he would jump in front of a bus.

When John made this quasi-suicidal statement, the conversation came to a screeching halt. Both John and Jane were concerned about where the comment came from, why he made such a statement, and if it was actually his intention to hurt himself. Because they wanted to have the situation addressed properly, they asked their son to drive them to the nearest emergency room.

After John and Jane waited at the emergency room for several hours, John’s intoxication cleared. He explained to staff that, at the time of the statement, he was drunk, was upset at the thought of his wife leaving him, but never intended to kill himself. He told the staff that he did not need inpatient treatment, and that he would be leaving.

Illegal Detention

Upon hearing John’s explanation and decision, the hospital labeled him unwilling to undergo inpatient treatment and filed an Application for Involuntary Evaluation, or petition, pursuant to Title 36 of the Arizona Revised Statutes. The hospital then took John’s clothes, put him in nothing but a blue hospital gown, and isolated him in a room filled with others clothed in blue hospital gowns. Security guards were posted at each door.

Twenty-four hours later, a social worker met with John and incorrectly explained the Title 36 process. John was told that the hospital had the right to hold him until a bed was available for him elsewhere and that, if he tried to leave, hospital security would physically restrain him and he would be taken to “UPC” (urgent psychiatric care). There was no explanation of what or where this was.

John waited. And waited. During his week of confinement, he did not see a psychiatrist or psychiatric nurse or receive psychiatric treatment of any kind. He was not allowed to leave the room except to go to the bathroom across the hall, and even then, he was accompanied and watched by security. John asked for a shower, but after being told that security must watch him while he showered, he decided not to do so.

John repeatedly told staff that he was not suicidal and that he would be willing to accept outpatient mental health treatment. Nonetheless, the hospital repeatedly told John it would not release him. Finally, after missing a week with his wife and two kids and a week of work, John called our law office, and with our help he was released within three hours.

If this nightmare seems implausible, our experience in these matters tells us that it is not. While the facts of John and Jane’s experience are exceedingly egregious, the facts of these cases are always egregious. A person in need reaches out for help; rather than receiving it, he or she is held involuntarily, illegally, and without treatment. This type of psychiatric boarding, or involuntary civil commitment, is not permitted under Arizona law.

“Extreme Infringement”

Our courts have repeatedly held that the involuntary civil commitment process is an extreme infringement of a person’s liberty and cannot be accomplished without strict compliance to due process procedures designed to protect the individual. While upholding the constitutionality of Arizona’s civil commitment laws, the courts have stated clearly that the laws must be “strictly followed” and that failure to do so will render the commitment proceedings void.

Most hospital emergency rooms in Maricopa County are not licensed to participate in the involuntary civil commitment process under Title 36 and have no authority under Arizona law to “hold” a person in their facility until a bed in another licensed facility is available. Therefore, the hospital’s process is likely void, and the patient is entitled to be released.

Over the last several years our firm has handled dozens of situations similar to John Doe’s. In his case, our firm contacted the hospital and, based on our reputation in this area and our relationships with the hospital and their counsel, he was promptly released. In other cases, we are forced to go to court to seek a release. In all cases, the involuntary confinement of a mental health patient in an emergency room is not permitted under Title 36.

If you have questions about this process, please do not hesitate to contact us.