36-546. Judicial review; right to be informed; request; jurisdiction

A. A patient receiving court-ordered treatment or any person acting on the patient's behalf may request that the court review whether the patient is still in need of continued court-ordered treatment.  The rights and procedures prescribed in this section are in addition to the rights and procedures for applying for a writ of habeas corpus as provided in title 13, chapter 38, article 26.

B. A request for judicial review may not be made sooner than sixty days after the original order for court-ordered treatment is entered. except for requests for judicial review made pursuant to section 36-540, subsection E, paragraphs 5 and 6 and section 36-540.01, subsection K, a request for a subsequent judicial review may not be made sooner than sixty days after an order deciding a previous request for judicial review is entered.

C. The patient shall be informed by the medical director of the mental health treatment agency of the patient's right to judicial review and the patient's right to consult with an attorney at least once each sixty days while the patient is undergoing court-ordered treatment. The notification required by this subsection shall be recorded in the clinical record of the patient by the individual who gave the notice.

D. A request for judicial review shall be made in the following manner:

1. A written request for judicial review may be presented to any member of the treatment staff of the mental health treatment agency providing the patient's treatment. The request may be made by the patient, an attorney representing the patient or a health care decision maker acting on behalf of the patient. The request may be made on a prescribed form that is prepared by the mental health treatment agency and made available for use by any person.  The completed form shall identify:

(a) The name and date of birth of the patient being treated.

(b) The mental health treatment agency assigned to supervise and administer the patient's treatment program and, if the patient is being treated as an inpatient, the inpatient mental health treatment agency at which the patient is being treated.

(c) The name of the person to whom the request for judicial review was presented and the date the request was received.

(d) Whether the person making the request is the patient being treated or someone acting on the patient's behalf.  If the request is made by someone other than the patient, the form must identify the name and contact information of the person making the request and in what capacity the person is acting on behalf of the patient.

2. A mental health treatment staff member who receives a written request for judicial review shall promptly deliver the request to the medical director of the mental health treatment agency. If the person presenting the request refuses to sign it, the medical director of the mental health treatment agency shall proceed as if the request had been signed and shall note on the request the circumstances why the request was not signed.

3. Within seven business days after receiving the request, the medical director of the mental health treatment agency or the medical director's designee shall deliver the request, along with a current psychiatric report of the patient's condition, to be filed with the clerk of the court. The current psychiatric report shall express the opinion of the medical director of the mental health treatment agency as to whether the patient continues to meet the criteria for court-ordered treatment.  If the medical director of the mental health treatment agency is of the opinion that a court order for treatment is no longer needed because, although the patient continues to have a mental disorder, the patient is willing to accept voluntary treatment, the medical director of the mental health treatment agency shall state an opinion regarding the patient's ability to accept and follow through with recommended treatment voluntarily.  In rendering such an opinion, the medical director of the mental health treatment agency shall consider the patient's history of behavior and compliance with treatment both before and after the court order was entered.

E. If the patient is under a guardianship, within three days after receiving a request for judicial review, the medical director of the mental health treatment agency shall notify the guardian that a request for judicial review has been presented to the mental health treatment agency and is being filed with the court for further action.

F. Delivery of the notice required by subsection E of this section shall be accomplished by any reasonable means designed to impart immediate notice of the action taken, such as electronic transmission with receipt confirmed by the person to whom it is sent or hand delivery.  The medical director of the mental health treatment agency shall certify the delivery and receipt of delivery by a statement in the documents delivered to the court for filing pursuant to subsection D of this section or by a separate written certificate filed with the court. If delivery is not accomplished, the mental health treatment agency shall certify all efforts to accomplish delivery and state the reasons delivery could not be accomplished.  A person who is entitled to notice may waive delivery.

G. The patient shall be informed, at the time the patient makes the request, of the patient's right to consult an attorney by the person or court to whom the patient makes the request for release and, in the case of confinement in a mental health treatment agency, by the reviewing court within one day after the court's receipt of notice from the medical director of the mental health treatment agency where the patient is being treated.  The patient shall be allowed to consult an attorney to assist in preparation of a petition for the writ of habeas corpus and to represent the patient in the hearing. If the patient is not represented by an attorney, the reviewing court, within two days after the court's notice to the patient of the patient's right to counsel, shall appoint an attorney to assist the patient in the preparation of a petition and to represent the patient in the hearing.

H. The mental health treatment agency has the burden of proving, by clear and convincing evidence, that the patient continues to need court-ordered treatment. Unless the court finds that the patient's treatment is illegal on other grounds, the patient shall not be released from court-ordered treatment unless the court finds that court-ordered treatment is no longer required because the patient is no longer, as the result of a mental disorder, a danger to self or a danger to others or no longer has a persistent or acute disability or a grave disability and is no longer in need of court-ordered treatment or is willing and able to accept and follow through with any treatment needed voluntarily.

I. Judicial review shall be in the superior court in the county in which the patient is being treated. Within five judicial days after the request for judicial review is filed, the court shall review the additional material presented and may enter its order without necessity of a hearing.

J. The reviewing court may order a hearing on its own motion, on the motion of the attorney for the patient or on the motion of the person filing the request for judicial review on behalf of the patient, setting forth the need for an evidentiary hearing. The court may order an independent evaluation of the patient pursuant to section 36-538. If the court orders a hearing, the hearing shall be held as soon as possible but not later than fifteen calendar days after the request for judicial review was filed with the court.  The hearing may be continued for good cause.  Unless otherwise ordered, if the patient is receiving treatment as an inpatient, the patient shall remain in inpatient treatment until the court has made its determination.  The court shall notify the parties of the time and place of the hearing.

K. The medical director of the mental health treatment agency, at least twenty-four hours before the hearing, shall provide the patient's attorney with a copy of the patient's medical records.

L. The patient's attorney shall fulfill all of the following minimal duties:

1. Within twenty-four hours after appointment, conduct an interview with the patient.

2. At least twenty-four hours before the hearing, interview the patient's treatment physician or psychiatric and mental health nurse practitioner if available.

3. Before the hearing, examine the clinical record of the patient.

4. Before the hearing, examine the patient's court records as to the patient's involuntary treatment.

M. An attorney who does not fulfill the duties prescribed by subsection L of this section is subject to contempt of court.