ARIZONA STATE SENATE
Forty-seventh Legislature, Second Regular Session
FACT SHEET FOR H.B. 2828
prisoners; medical treatment guardians
Purpose
Prescribes procedures for appointing a treatment guardian to an inmate who is unable to make his or her own treatment decisions about psychotropic medications.
Background
The Arizona Department of Corrections (ADC) has an ADC Order establishing standards and procedures for mental health services of inmates with mental illness/disorders, for voluntary or involuntary mental health treatment and for referrals and treatment of inmates in the Sex Offender Treatment Program (ADC Order Manual, Chapter 1100). Specifically, the Order contains procedures for prescribing psychotropic medications. However, under the ADC Order inmates currently are not appointed a treatment guardian to make decisions about the administration of psychotropic medications to the inmate.
If a psychiatrist prescribes psychotropic medication, the psychiatrist must complete an informed consent form and allow the inmate to sign the form. If an inmate refuses to sign it, a notation is made of the form stating that the inmate refused to sign. According to ADC, approximately 24 inmates refused psychotropic medication treatment during the past 12 months.
An inmate may be involuntarily medicated with psychotropic medication if an emergency exists, alternative methods of restraint are inade1quate and, as a last resort, forced medication is required to address the emergency. Additionally, if an inmate refuses medication in a non-emergency situation, the treating psychiatrist must give the inmate at least 24 hours written notice of the psychiatrist’s intent to convene an involuntary medication hearing before the Psychotropic Medication Review Board (PMRB). The PMRB must meet between 24 and 72 hours after the psychiatrist requests to involuntarily medicate the inmate. The inmate has a right to attend or refuse to attend the meeting, present evidence and cross-examine staff witnesses. The inmate also has the right to the assistance and presence of a lay advisor in the form of the inmate’s correctional officer. A decision must be rendered within 8 hours of the hearing. If the PMRB determines, by a majority vote, that the inmate suffers from a mental disorder and is severely impaired or poses a likelihood of serious harm to self, other or property, the inmate may be involuntarily medicated, so long as the PMRB psychiatrist is in the majority opinion. The inmate has a right to appeal the decision to the Deputy Director for Inmate Health Services (ADC Order 1103.08). According to ADC, of the 24 inmates that refused psychotropic medications in the past 12 months, all but one were treated through the involuntary medical hearing process. One inmate appealed the involuntary treatment decision and the appeal was upheld.
The Joint Legislative Budget Committee (JLBC) issued a fiscal note stating that the fiscal impact of H.B. 2828 cannot be determined with certainty, but appears to be minimal. Also, according to ADC, this bill is estimated to have minimal or no state fiscal impact.
Provisions
Informed Consent
1. Prohibits the administration of any psychotropic medication or psychosurgery, convulsive therapy or experimental treatment program without a prisoner’s consent.
2. Requires, if the prisoner is capable of giving consent, that consent be obtained before a prisoner undergoes treatment.
3. Specifies that a prisoner shall not be presumed to be incapable of giving consent solely because the prisoner was involuntarily admitted to a mental health inpatient treatment facility operated by the Department of Corrections (DOC), was involuntarily admitted to the state hospital or is awaiting a hearing on whether the prisoner should be involuntarily committed.
Appointment of Treatment Guardians
4. Allows a psychiatrist or physician to petition the court to appoint a treatment guardian if the psychiatrist or physician recommends a course of treatment for the prisoner and believes that the prisoner is incapable of giving informed consent.
5. Requires the petition to be served on the prisoner and the prisoner’s attorney.
6. Requires the court to hold the treatment guardian hearing within 45 calendar days.
7. Stipulates that the prisoner has the right to be present at the hearing, and that the prisoner has the right to counsel, to present witnesses and to cross-examine opposing witnesses.
8. Allows the court to appoint a treatment guardian if the court finds that the prisoner is incapable of making his or her own treatment decisions.
9. Allows the court, whether the court appoints a treatment guardian or not, to order that the person who petitioned for the appointment of a treatment guardian be required to pay costs relating to the hearing, including transportation costs incurred by the DOC.
10. Allows the court to consider the following persons for appointment as a treatment guardian, in the following manner:
a) a guardian or conservator of the prisoner, or a fiduciary appointed or recognized by the appropriate court of any jurisdiction in which the prisoner resides.
b) an individual or corporation nominated by the prisoner if the prisoner has sufficient mental capacity to make an intelligent choice.
c) the person nominated in the prisoner’s most recent durable power of attorney.
d) the spouse of the prisoner.
e) an adult child of the prisoner.
f) a parent of the prisoner, including a person nominated by will or other writing signed by a deceased parent.
g) any relative of the prisoner with whom the prisoner has resided for more than six months before the filing of the petition.
h) the nominee of a person who is caring for or paying benefits to the prisoner.
i) if the prisoner is a veteran, the spouse of a veteran, the minor child of a veteran or the Department of Veterans’ Services.
j) a fiduciary, guardian or conservator.
11. Allows a spouse, an adult child, a parent or a relative of the prisoner to nominate in writing a person to serve in lieu of the spouse, adult child, parent or relative.
12. Requires the court to select the best-qualified candidate in the event of persons who have equal priority.
13. Allows the court to pass over a person who has priority in favor of a person who has lower priority or no priority if the court has good cause.
Reappointment of Treatment Guardians
14. Requires the court to specify the length of time during which a treatment guardian may exercise the treatment guardian’s powers.
15. Requires the treatment guardian to petition the court for reappointment or for the appointment of a new treatment guardian if at the end of the guardian’s tenure the guardian feels the prisoner is still incapable of making informed treatment decisions.
16. Requires the court to extend the guardianship or to appoint a new guardian if the court finds that the prisoner is incapable of understanding and expressing an opinion with respect to treatment decisions.
17. Stipulates that the prisoner must be present, represented by counsel and able to present evidence at all guardianship appointment hearings.
Duties and Powers of the Treatment Guardian
18. Requires a treatment guardian to make decisions on behalf of the prisoner as to whether to accept treatment recommended by a psychiatrist or physician based on whether the treatment appears to be in the prisoner’s best interest and is the most effective means of accomplishing the treatment objective.
19. Requires the treatment guardian to consult with the prisoner and to consider the prisoner’s expressed opinions, even if those opinions do not constitute valid consent to or rejection of treatment.
20. Requires the treatment guardian to consider any previous decisions that were made by the prisoner in similar circumstances in which the prisoner was able to make treatment decisions.
21. Requires the treatment guardian to consult with the psychiatrist, physician or other professional who is proposing treatment, the prisoner’s attorney and any interested friends or relatives of the prisoner.
22. Allows the treatment guardian to petition the court for an enforcement order if the prisoner refuses to comply with the treatment guardian’s decision.
23. Allows the court to order that the treatment be forcibly administered.
24. Allows the prisoner’s attorney, or a psychiatrist, physician or other professional, to appeal the treatment guardian’s decision within 45 calendar days, and allows the court to overrule the treatment guardian’s decision if it finds that the decision is against the best interest of the prisoner.
25. Allows a treatment guardian, the prisoner, the prisoner’s attorney, the treatment provider or a member of the prisoner’s family to petition the court to terminate the treatment guardianship if it is thought that the prisoner has regained competence.
26. Requires the court to terminate the power of the treatment guardian and to restore the treatment decision power to the prisoner if the court finds that the prisoner is capable of making his or her own treatment decisions.
27. Allows a psychiatrist or physician to petition the court for the appointment of a different treatment guardian if it is thought that the current guardian is not acting in the prisoner’s best interest.
28. Specifies that a treatment guardian has only the powers enumerated by this bill, unless the treatment guardian has been appointed as a guardian pursuant to any other law.
29. Specifies that a treatment guardian is not liable in any civil or criminal action unless the treatment guardian acted in bad faith or with malice.
Emergency Situations
30. Allows a psychiatrist or physician to administer treatment on an emergency basis if a treatment guardian has not yet been appointed and the psychiatrist or physician believes that the treatment is necessary to protect the prisoner from serious harm.
31. Requires the psychiatrist or physician to place in the prisoner’s medical record a report explaining the nature of the emergency and the reason that the treatment was necessary to protect the prisoner from serious harm.
32. Allows a court to issue an order that permits the treating psychiatrist or physician to continue to administer psychotropic treatment until a treatment guardian is appointed.
Miscellaneous
33. Specifies that a prisoner has the right to be present at any hearing.
34. Allows the court to conduct a hearing telephonically or by videoconference for safety reasons or if it is in the prisoner’s best interest.
35. Specifies that this bill does not prevent DOC from using incentive-based programs that involve behavior modification.
36. Allows DOC to adopt rules to implement the provisions of this bill.
37. Defines “psychiatrist, physician or other professional” as a psychiatrist, physician or other professional who is acting on behalf of DOC.
38. Defines “serious mental illness” as a condition that:
a) as a result of a mental disorder, causes a prisoner to constitute a danger to self or others or to be in danger of serious physical harm as a result of the prisoner’s failure to use resources that provide essential human needs or health or safety.
b) manifests severe deterioration in routine functioning as evidenced by, among other things, repeated and escalating loss of cognitive or volitional control over the prisoner’s actions.
c) noncompliance with taking psychotropic medication prescribed by the treating psychiatrist in the prisoner’s best medical interest.
39. Becomes effective on the general effective date.
House Action
PIR 2/20/06 DP 8-0-0-1
3rd Read 3/13/06 55-5-0-0
Prepared by Senate Research
March 28, 2006
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