IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Involuntary Treatment 

of

W.H.

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No. 36119-5-III

UNPUBLISHED OPINION

SIDDOWAY, J. — W.H. appeals an order involuntarily committing him to 14 days 

intensive mental health treatment after he exhibited aggressive, manic behavior at a 

hospital emergency room. At the probable cause hearing the court commissioner found 

that W.H. was on the road to recovery but reasonably found that he was still suffering 

from a grave disability within the meaning of RCW 71.05.020(22)(b). For that reason, 

and because any error in failing to give a statutorily-required notice of loss of firearm 

rights early in the probable cause hearing was not preserved, we affirm.

FILED

JULY 18, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36119-5-III

In re Involuntary Treatment of W.H.

2

FACTS AND PROCEDURAL BACKGROUND

In May 2018, W.H., a resident of Indiana, was traveling with his father through

Washington State when he lost his medications. Among them were psychiatric 

medications and pain medications for his back. Upon arriving in Spokane, he had been 

without his medications for several days and was suffering from headaches, nausea, and 

chills. He attributed the shivering and nausea to withdrawal from the opiates prescribed 

for his back pain. 

Having decided that an urgent care clinic or emergency room might be able to 

contact his providers in Indiana and provide him with his prescribed opiates and 

benzodiazepine, W.H. walked from his hotel to Sacred Heart Hospital. According to 

him, the admitting nurse in the hospital emergency room kept him waiting for a couple of 

hours and, when he eventually asked if he could have a blanket because of his chills, told 

him no. Sacred Heart staff’s version of his emergency room visit was that W.H. yelled, 

screamed, spit, and threw a urinal at staff, demanding that he be treated immediately. His 

behavior resulted in his being placed in restraints and a spit mask. 

A hospital psych triage nurse requested that W.H. be evaluated by a crisis 

responder designated by the county, based on concerns that he was gravely disabled and a 

danger to others. The psych triage nurse passed along information that W.H. had been 

diagnosed with bipolar disorder, but W.H. disputed the diagnosis. 
No. 36119-5-III

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After evaluating W.H., the crisis responder prepared a petition for his initial 

detention, asserting that W.H. presented an imminent likelihood of serious harm to others 

and was in imminent danger because of being gravely disabled.

Two days later, a physician and a mental health professional on Sacred Heart staff 

filed a petition seeking to commit W.H. to 14 day intensive involuntary treatment. The 

petition stated that W.H.’s current diagnosis at Sacred Heart was bipolar disorder. The 

petition described W.H., following detention, as 

present[ing] with irritability, labile affect, grandiosity, agitation, threats to 

punch security, tangential thought process, loose associations, pressured 

and rambling speech, poor insight and poor judgment. [W.H.] is hostile 

and threatening with nursing staff, refuses assessments, continuously yells

out over staff during assessments, and refuses as needed medications. 

Sealed Clerk’s Papers (SCP) at 15. The petition expressed the opinion of the 

examining physician and mental health professional that W.H. continued to 

present a likelihood of serious harm to others and was gravely disabled. It stated 

that W.H. had declined voluntary treatment.

At the probable cause hearing on the petition, the hospital’s witness was Dr. 

Rachel Wix, a court evaluator and staff psychologist for Frontier Behavioral Health. Dr. 

Wix testified that in preparing for her testimony, she met with W.H., reviewed W.H.’s 

chart at Sacred Heart, spoke with the treating psychiatrists, and reviewed medical records 

of some of W.H.’s care in Indiana. 
No. 36119-5-III

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4

Dr. Wix testified that W.H. suffers from bipolar disorder, for which he was 

currently prescribed Risperidone, Depakote, Latuda, Valium, Lamictal, and Gabapentin. 

She testified that he had previously been hospitalized in Indiana in 2014 under 

circumstances similar to his detention at Sacred Heart: he had reported to the hospital 

after he stopped taking his medications. 

Dr. Wix testified that when W.H. came to Sacred Heart, he was experiencing a 

manic episode. She said he had remained agitated, labile, and unpredictable during the 

period of his detention. She testified that he had not been medication compliant when he 

first arrived at the hospital, so forced medication was ordered if he refused. He then 

acceded to taking medication and by the time of the hearing was medication compliant. 

But she characterized him as regularly “argumentative around taking his medication,” 

saying that he “often tries to negotiate and bargain when given medications.” Sealed 

Report of Proceedings (SRP) at 17. 

Dr. Wix said that W.H. had made minimal improvement since being admitted. He 

had gone from sleeping only 45 minutes a night when first detained to sleeping 3 and a 

half hours the night before the hearing. Dr. Wix said she nonetheless had concerns about 

W.H. if he was released into the community, stating he had no family or resources to help 

him in Spokane, and because “he doesn’t believe that he has bipolar disorder or needs 

medications to treat that disorder, I have no faith that he would follow through with 

mental health follow up in the community.” SRP at 19. She observed that the fact that 
No. 36119-5-III

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he disputed the diagnosis of a psychiatrist who had treated him for 14 years demonstrated 

his poor insight into his mental health needs. She testified she was also concerned that 

because W.H. was so easily agitated and had threatened hospital staff, he was a serious 

risk of harm to others. At the time of the hearing, W.H. had been released from restraints 

but was still being held in seclusion. 

Asked about the treatment plan for W.H., Dr. Wix testified that it was to get his

symptoms stabilized and discharge him appropriately. 

Following Dr. Wix’s testimony, W.H. testified on his own behalf. Because of 

W.H.’s prior behavior, three Sacred Heart security employees were present at the hearing 

and the court commissioner strongly cautioned W.H. at the outset that if he lost control or 

was disruptive he would be removed, and the hearing would continue without him. W.H.

stated that he understood, and the transcript reveals that he was in control, responsive and 

respectful throughout the hearing. 

W.H. recounted his reasons for going to Sacred Heart and said of the admitting 

nurse that he “gave her time” but “[s]till [got] nothing from her,” characterizing the nurse

as “chitchatting with the security guards and one of her technicians” when she refused his 

request for a blanket. SRP at 31. He conceded that his psychiatrist from Indiana believes

he has bipolar disorder, but testified, “[W]e’ve been discussing that. There’s nothing in 
No. 36119-5-III

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the DSM 5[1]that indicates that I do have bipolar.” Id. In W.H.’s view, he has 

experienced depression from growing up in a dysfunctional family and has “a very, very 

low tolerance for being disrespected.” Id. Despite admitting that he “get[s] easily 

offended,” he said he had an “absolutely clean record” and had not assaulted anyone 

since high school. SRP at 32.

W.H. testified that if released, his father would pick him up, “no problem 

whatsoever.” SRP at 33. He testified that following release, “I’ll call my doctor, have 

him get me my regular medications, and I’ll stay on those until we have an opportunity to 

discuss whether they’re needed, and I’ll work closely with him.” SRP at 34. Asked by 

the court commissioner how he supports himself, W.H. said that he receives a total of 

about $4,400 a month in Social Security and rental property income.

The commissioner orally ruled at the conclusion of the hearing, stating that no risk 

of harm to others had been proved, nor had the petitioners “spent much energy” trying to 

prove that W.H. was gravely disabled within the meaning of RCW 71.05.020(22)(a). 

SRP at 46. As to the definition of “gravely disabled” provided by RCW 

71.05.020(22)(b), however, the commissioner stated, 

[W]hat’s troubling is that [W.H.] seems to resist the idea of being 

diagnosed with bipolar disorder. And, frankly, this is somewhat 

remarkable in light of the fact that, after a many-year relationship with a 

 

1 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013).
No. 36119-5-III

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board certified psychiatrist who disagrees with him, [W.H.] persists. And 

this may be an obstacle to his effective treatment.

We see an incident very similar to his current situation back in 2014 

where he presented at a hospital in Indiana, similar symptoms, you know, 

very agitated, delusional, having a manic episode.

SRP at 46. Although acknowledging that W.H. seemed to be responding to treatment, the 

commissioner stated that on arriving at the hospital, W.H. had refused to take psychiatric 

medications, indicating a lack of insight into his mental health needs. He also observed 

that W.H. had been a difficult patient to manage, “all of which is somewhat different 

from how he presents today.” SRP at 47. The commissioner concluded:

The Court would find that [W.H.]’s apparently on the road to 

recovery. He’s getting stabilized, may not be quite there today. I think 

there would be a risk, if the petition were dismissed, that he would not be 

able to obtain necessary treatment in a timely fashion, particularly given 

that his doctor is in Indiana. He’s kind of in a transient status here in 

Spokane. It’s a little unclear, you know, what—what would happen, and 

the Court would find that grave disability exists under part [(b)] of the 

statute, to detain him for further stabilization so that a plan can be worked 

out for his kind of smooth and safe transition back into the community.

Id. The commissioner added that if W.H.’s medications were working and he was

sufficiently stable, he could be released within a matter of days. 

At the conclusion of his ruling, the commissioner stated that W.H. “should also 

understand that, with the entry of the order today, that his right to possess firearms will be 

suspended.” SRP at 48. Written findings and conclusions were presented and entered 

after the commissioner closed the record of the hearing. 
No. 36119-5-III

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Nine days later, the civil commitment order was dismissed on a joint motion of the 

parties. W.H. appeals. 

ANALYSIS

W.H. makes two assignments of error: he contends first, that the commissioner 

failed to provide a statutorily-required notice of the risk of a loss of his firearm rights, 

and second, that insufficient evidence supports the finding that he was gravely disabled 

within the meaning of RCW 71.05.020(22)(b). We address the issues in the order stated.2

I. ERROR, IF ANY, IN FAILING TO PROVIDE THE NOTICE REQUIRED BY RCW

71.05.240(2) WAS NOT PRESERVED

A person who is involuntarily committed for mental health treatment for 14 days 

under RCW 71.05.240 may not possess a firearm unless his or her right to do so is 

restored. RCW 9.41.040(2)(a)(iv), .047. Because an individual’s agreement to voluntary

treatment will avoid the loss of firearm rights, RCW 71.05.240(2) provides that if a 

petition for a 14 day civil commitment is for mental health treatment,

the court at the time of the probable cause hearing and before an order of 

commitment is entered shall inform the person both orally and in writing 

that the failure to make a good faith effort to seek voluntary treatment as 

 

2 The State’s response presents a threshold argument that the appeal is moot in 

light of the dismissal of the commitment order and W.H.’s release. “An individual’s 

release from detention does not render an appeal moot where collateral consequences 

flow from the determination authorizing such detention,” however. In re Det. of M.K., 

168 Wn. App. 621, 626, 279 P.3d 897 (2012). Under RCW 71.05.012, .212, and .245, 

“each order of commitment entered up to three years before the current commitment 

hearing becomes a part of the evidence against a person seeking denial of a petition for 

commitment.” M.K., 168 Wn. App. at 626.
No. 36119-5-III

In re Involuntary Treatment of W.H.

9

provided in RCW 71.05.230[3] will result in the loss of his or her firearm 

rights if the person is subsequently detained for involuntary treatment under 

this section.

W.H. argues that it was only at the conclusion of his probable cause hearing—

after the commissioner had orally granted the petition—that the commissioner informed 

him of his loss of firearm rights. He argues that the failure of the commissioner to 

provide earlier notice requires that the commitment order be reversed. In the proceeding 

below, no objection was made to the commissioner’s failure to provide the notice at an 

earlier time.

RAP 2.5(a) states the general rule that appellate courts will not entertain issues not 

raised in the trial court. State v. Guzman Nunez, 160 Wn. App. 150, 157, 248 P.3d 103 

(2011) (citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)), aff’d, 174 

Wn.2d 707, 285 P.3d 21 (2012). The reason for the rule is to afford the trial court an 

opportunity to correct errors as they are raised, thereby preserving the use of judicial 

resources. Scott, 110 Wn.2d at 685.

An exception applies where the claimed error is “manifest error affecting a 

constitutional right.” RAP 2.5(a)(3). To establish manifest constitutional error, a 

criminal defendant must identify a constitutional error and additionally show that the 

 

3 RCW 71.05.230(2) provides that before a petition for such a commitment may be 

filed, the person must be advised of the need for voluntary treatment and given an 

opportunity to volunteer. 
No. 36119-5-III

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error negatively affected his rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 

155 P.3d 125 (2007). “It is this showing of actual prejudice that makes the error 

‘manifest,’ allowing appellate review.” Id. at 927 (citing State v. McFarland, 127 Wn.2d 

322, 333, 899 P.2d 1251 (1995)). 

The error assigned by W.H. is not constitutional error. Traditionally, individuals 

who were mentally ill were considered dangerous to the public and to themselves, and for 

that reason were held to be outside the scope of protection by the Second Amendment to 

the United States Constitution. E.g., Beers v. Att’y Gen. U.S., 927 F.3d 150, 2019 WL 

2529248, at *5 (3d Cir. June 2019) (upholding federal law prohibiting the possession of 

firearms by anyone previously adjudicated as mentally ill). The right to bear arms 

conferred by article 1, section 24 of the Washington Constitution is likewise subject to 

reasonable limitation by the legislature, including when an individual has been 

involuntarily committed for mental health treatment. Morris v. Blaker, 118 Wn.2d 133, 

145, 821 P.2d 482 (1992). At issue is not the constitutional issue of whether W.H. can be 

forbidden to possess a firearm, but the commissioner’s alleged violation of a statutory

duty to provide notice at an earlier time.

It is not clear that the statute was violated. The record suggests that while the 

commissioner provided the required oral and written notice after orally ruling, it was 

provided before the order of commitment was signed. See SRP at 48; SCP at 66. 
No. 36119-5-III

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Assuming the statute requires earlier notice, W.H.’s lawyer could have objected before 

entry of the order of commitment. The error, if any occurred, was waived.

II. SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSIONER’S FINDING THAT W.H.

WAS GRAVELY DISABLED WITHIN THE MEANING OF RCW 71.05.020(22)(b)

Under chapter 71.05 RCW, persons may be involuntarily committed for treatment 

of mental disorders if, as a result of such disorders, they either (1) pose a substantial risk 

of harm to themselves, others, or the property of others, or (2) are gravely disabled. In re 

Det. of LaBelle, 107 Wn.2d 196, 201-02, 728 P.2d 138 (1986) (citing former RCW 

71.05.020(1), .020(3), .150, .240, .280, .320 (1986)). RCW 71.05.020(22) provides a 

twofold definition of “gravely disabled” as meaning 

a condition in which a person, as a result 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.

LaBelle, 107 Wn.2d at 202 (footnote omitted) (quoting former RCW 71.05.020(17) 

(LAWS OF 2016, ch. 255, § 1)). Either alternative may serve as the basis for involuntary 

commitment. Id. 

When the State proceeds under RCW 71.05.020(22)(b), the basis for W.H.’s 

commitment,

it is particularly important that the evidence provide a factual basis for 

concluding that an individual “manifests severe [mental] deterioration in 

routine functioning”. Such evidence must include recent proof of 
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significant loss of cognitive or volitional control. In addition, the evidence 

must reveal a factual basis for concluding that the individual is not 

receiving or would not receive, if released, such care as is essential for his 

or her health or safety. It is not enough to show that care and treatment of 

an individual’s mental illness would be preferred or beneficial or even in 

his best interests. 

LaBelle, 107 Wn.2d at 208 (alteration in original).

Because a 14 day commitment is at issue, the burden of proof is by a 

preponderance of the evidence. RCW 71.05.240(3)(a). “Preponderance of the evidence 

means that considering all the evidence, the proposition asserted must be more probably 

true than not true.” State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 (2009). 

“[W]here the trial court has weighed the evidence, appellate review is limited to 

determining whether substantial evidence supports the findings and, if so, whether the 

findings in turn support the trial court’s conclusions of law and judgment.” LaBelle, 107 

Wn.2d at 209. We defer to the trial court’s determination of the weight of the evidence 

and credibility of witnesses. In re Estate of Barnes, 185 Wn.2d 1, 16, 367 P.3d 580 

(2016).

The State relied in this case on the testimony of Dr. Wix, a licensed psychologist, 

who expressed her opinion that W.H. was gravely disabled and explained the reasons for 

her opinion. Her testimony was based on almost an hour spent with W.H. in the prior 

week, a review of the medical charting prepared during the period of his detention, and 
No. 36119-5-III

In re Involuntary Treatment of W.H.

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review of medical records of some of his care in Indiana, including his 2014 

hospitalization. She had also spoken with his treating psychiatric providers twice. 

There was substantial evidence that W.H. suffers from bipolar disorder and 

undisputed evidence that he had quit taking his medication for the disorder for several 

days before presenting at Sacred Heart. There was substantial evidence that he had 

exhibited agitated, aggressive, manic behavior during the week preceding the hearing, to 

the point of being in restraints for a time and in seclusion thereafter. The evidence 

established that he was only begrudgingly medication compliant. Among the most 

concerning evidence was that he did not accept the diagnosis that he suffered from 

bipolar disorder and did not believe he needed the medication prescribed to treat it.

The evidence that he had been previously hospitalized in Indiana in 2014 after he 

stopped taking his bipolar medications foreclosed the possibility that this was an isolated 

crisis attributable to his losing his medication. 

Dr. Wix testified that W.H. had made only minimal improvement during his 

detention, continued to be easily agitated, and his emotions continued to swing wildly. 

She said that in a single conversation with her, W.H. ranged from being calm and 

cooperative, to tearful and emotional, to being so angry that his face and torso were red, 

fists clenched, and he had to speak through clenched teeth. She expressed strong concern 

that if released into the community, W.H. would not follow through with care essential to 

his health and safety.
No. 36119-5-III 

In re Involuntary Treatment of WH. 

Under a preponderance of evidence standard, this evidence supported the 

commissioner's finding that W.H. was gravely disabled within the meaning of RCW 

71.05 .020(22)(b ). 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

1J?Uow. -~· 

oway,J. ~ I CONCUR: 

I CONCUR IN RESULT ONLY: 

Lawrence-Berrey, C.J. 

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