HB2923 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 14-5312.01, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5312.01. Inpatient treatment; rights and duties of ward and guardian

A. Except as provided in subsection B of this section, a guardian of an incapacitated person may consent to psychiatric and psychological care and treatment, including the administration of psychotropic medications, if the care and treatment take place outside an inpatient psychiatric facility licensed by the department of health services.

B. On clear and convincing evidence that the ward is an incapacitated person and is likely to be in need of inpatient mental health care and treatment within the period of the authority granted pursuant to this section, the court may authorize a guardian appointed pursuant to this title to give consent for the ward to receive inpatient mental health care and treatment, including placement in an inpatient psychiatric facility licensed by the department of health services and medical, psychiatric and psychological treatment associated with that placement. The evidence shall be supported by the opinion of a mental health expert who is either a physician licensed pursuant to title 32, chapter 13 or 17 and who is a specialist in psychiatry or a psychologist who is licensed pursuant to title 32, chapter 19.1.

C. In making its decision to grant authority to a guardian pursuant to subsection B of this section, the court shall consider the cause of the ward's disability and the ward's foreseeable clinical needs. The court shall limit the guardian's authority to what is reasonably necessary to obtain the care required for the ward in the least restrictive treatment alternative. The court may limit the duration of the guardian's authority to consent to inpatient mental health care and treatment and include other orders the court determines necessary to protect the ward's best interests.

D. Within forty-eight hours after placement of the ward pursuant to this section, the guardian shall give notice of this action to the ward's attorney. When the attorney receives this notice the attorney shall assess the appropriateness of the placement pursuant to section 36-537, subsection B and section 36-546, subsection H K. If requested by the attorney, the court shall hold a hearing on the appropriateness of the placement within three days after receiving that request.

E. The inpatient psychiatric facility shall assess the appropriateness of the ward's placement every thirty days and shall provide a copy of the assessment report to the ward's attorney on request. The ward's attorney may attend the ward's evaluation, staffing, treatment team and case management meetings.

F. When the ward is admitted to an inpatient psychiatric facility pursuant to this section, the guardian shall provide the facility with the name, address and telephone number of the ward's attorney. The facility shall include this information in the ward's treatment record.

G. Within twenty-four hours after the facility receives any writing in which the ward requests release from the facility, any change in placement or a change in the type or duration of treatment, the facility shall forward this information to the ward's attorney.

H. All health care providers, treatment facilities and regional behavioral health authorities shall allow the ward's attorney access to all of the ward's medical, psychiatric, psychological and other treatment records.

I. The ward's guardian shall place the ward in a least restrictive treatment alternative within five days after the guardian is notified by the medical director of the inpatient facility that the ward no longer needs inpatient care. The ward, a representative of the inpatient treatment facility, the ward's attorney, the ward's physician or any other interested person may petition the court to order the facility to discharge the ward to a least restrictive treatment alternative if the guardian does not act promptly to do so.

J. If the ward is in an inpatient psychiatric facility at the time of the initial hearing on the petition for appointment of a guardian, the court investigator and the ward's attorney shall advise the court of the appropriateness of the placement.

K. An attorney appointed pursuant to section 14-5303, subsection C remains the attorney of record until the attorney is discharged by the court. The court shall ensure that a ward whose guardian has been granted inpatient mental health treatment authority is represented by an attorney at all times the guardian has that authority. Unless the court finds that the ward has insufficient assets to meet the ward's reasonable and necessary care and living expenses, the ward shall pay the attorney's reasonable fees.

L. If deemed necessary to adequately assess a request for inpatient mental health treatment authority or to review the ward's placement in an inpatient psychiatric facility, the court may order an independent evaluation by either a physician who is licensed pursuant to title 32, chapter 13 or 17 and who is a specialist in psychiatry or a psychologist who is licensed pursuant to title 32, chapter 19.1. If the ward has insufficient funds to pay the total cost of this evaluation, the court may deem all or any part of the evaluator's fee to be a county expense after determining the reasonableness of that fee.

M. Instead of ordering an independent evaluation pursuant to subsection L of this section, the court may accept a report conducted on behalf of the inpatient psychiatric facility if the court finds that the report meets the requirements of an independent evaluation.

N. The court may decide that the ward's right to retain or obtain a driver license and any other civil right that may be suspended by operation of law is not affected by the appointment of a guardian.

O. If the court grants the guardian the authority to consent to inpatient mental health care and treatment pursuant to this section, the medical director of an inpatient psychiatric facility licensed by the department of health services may admit the ward at the guardian's request.

P. A guardian who is authorized by the court to consent to inpatient mental health care and treatment pursuant to this section shall file with the annual report of the guardian required pursuant to section 14-5315 an evaluation report by a physician or a psychologist who meets the requirements of subsection B of this section. The evaluation report shall indicate if the ward will likely need inpatient mental health care and treatment within the period of the authority granted pursuant to this section. If the guardian does not file the evaluation report or if the report indicates that the ward will not likely need inpatient mental health care and treatment, the guardian's authority to consent to this treatment ceases on the expiration of the period specified in the prior court order. If the report supports the continuation of the guardian's authority to consent to inpatient treatment, the court may order that the guardian's authority to consent to this treatment continues. If the report supports the continuation of the guardian's authority to consent to this treatment, the ward's attorney shall review the report with the ward. The ward may contest the continuation of the guardian's authority by filing a request for a court hearing within ten business days after the report is filed. The court shall hold this hearing within thirty calendar days after it receives the request. The guardian's authority continues pending the court's ruling on the issue. At the hearing the guardian has the burden of proving by clear and convincing evidence that the ward is likely to be in need of inpatient mental health care and treatment within the period of the authority granted pursuant to this section.

Q. The court may discharge an attorney who was appointed pursuant to section 14-5303, subsection C subsequent to the appointment of a guardian if it clearly appears from specific facts presented by affidavit or verified petition that continued representation of the ward is no longer necessary or desirable. The factual basis must include, at a minimum, consideration of the following:

1. The nature and history of the ward's illness.

2. The ward's history of hospitalization.

3. The ward's current and anticipated living arrangements.

4. Whether the ward's inpatient treatment is anticipated to be a one-time onetime hospitalization for the purpose of stabilizing the ward's condition and further hospitalizations are not likely to be necessary.

5. Whether the ward's current and anticipated living arrangements are the least restrictive alternatives possible. END_STATUTE

Sec. 2. Section 36-546, Arizona Revised Statutes, is amended to read:

START_STATUTE36-546. Judicial review; right to be informed; request; jurisdiction

A. In addition to the procedure for applying for a writ of habeas corpus, as provided in title 13, chapter 38, article 26, A patient receiving court-ordered treatment or any person acting on the patient's behalf may request the patient's release pursuant to the following:

1. A request in writing may be presented to any member of the treatment staff of the agency providing the patient's treatment. The request may be made on a prescribed form that shall be prepared by the facility and made available for use by any person. The completed form shall identify:

(a) The patient being treated and the agency at which the patient is being treated.

(b) The person to whom the request for release was made.

(c) The person making the request for release, indicating whether the person is the patient being treated or someone acting on the person's behalf.

2. The request, when signed and dated by the person making the request for release, shall be delivered to the medical director of the agency. Within three days of receipt of the request, the medical director shall deliver the form, along with a current psychiatric report of the patient's condition, to the clerk of the court. If the person presenting the request refuses to sign the form, the medical director of the agency shall proceed as if the form had been signed and shall note on the form the circumstances as to why the form was not signed. that the court review whether the patient is still in need of continued court-ordered treatment. Judicial review is not available for an issue that has an administrative remedy pursuant to rules adopted by the Arizona health care cost containment system. 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 ninety 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.

B. C. The patient shall be informed by the medical director of the mental health treatment agency of the patient's right to judicial review by the medical director of the agency and the patient's right to consult with counsel 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.

C. With the exception of requests made pursuant to section 36-540, subsection E, paragraphs 5 and 6 and section 36-540.01, subsection K for judicial review, a request for judicial review may not be made sooner than sixty days after the issuance of the order for treatment or a hearing on a previous petition for habeas corpus or the issuance of the court order or other final resolution determining a previous request for judicial review by the patient.

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.

(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 three days after receiving the request, the medical director of the mental health treatment agency 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 compliance with treatment both before and after the court order was entered, including information relevant to the history of patient's behavior during and before the court order was entered from persons known to the mental health treatment agency who have a significant relationship with the patient, including family members and guardians.

4. Within three days after receiving a request for judicial review, the medical director of the mental health treatment agency shall notify the following 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:

(a) The guardian of the patient.

(b) Any relative or victim of the patient who has filed a demand for notice and any other person found by a court to have a legitimate reason for receiving notice pursuant to section 36-541.01.

(c) If the patient is undergoing treatment as the result of a petition filed by a prosecuting agency pursuant to section 13-4517, to the prosecuting agency that filed the petition.

E. Delivery of the notice required by subsection D 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.

F. A patient receiving court-ordered treatment has the right to consult with and receive assistance of an attorney to prepare a request for judicial review or a petition for habeas corpus and to represent the patient at any hearing as set forth in this section. At the time the patient makes a request for judicial review, the patient shall be informed of the patient's right to consult an attorney by the person to whom the patient makes the request. If the patient is not represented by an attorney and requests that an attorney be appointed, the mental health treatment agency where the patient is being treated shall promptly notify the reviewing court of the patient's request for appointment of an attorney. Within two business days after receiving notice of the patient's request, the court shall appoint an attorney to assist the patient in preparing a petition and to represent the patient in any hearing.

G. The patient or the person acting on the patient's behalf has the burden of proving, by clear and convincing evidence, that the patient is entitled to release from 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.

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

E. I. The reviewing court may order a further hearing on its own motion or on the affidavit motion of the attorney for the patient, the motion of the person filing the request for judicial review on behalf of the patient or the motion of any party who received notice pursuant to subsection D, paragraph 4 of this section, setting forth the need for further an evidentiary hearing and the reasons why the hearing is necessary before the time set for the release of the patient. 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 any person entitled to notice pursuant to subsection D, paragraph 4 of this section of the time and place of the hearing. Regardless of whether the court sets a hearing, a person prescribed in subsection D, paragraph 4 of this section who receives notice may submit additional materials for the court to consider and may participate in any hearing scheduled on the request for judicial review. Copies of any additional materials submitted to the court shall be given to the other parties by the parties submitting the materials. The court may order an independent examination of the patient.

F. The patient shall be informed of the patient's right to consult an attorney by the person or court to whom the patient makes the request for release at the time the patient makes the request and, in the case of confinement in an agency, by the reviewing court within one day of its receipt of notice from the medical director of the agency where the patient is being treated. The patient shall be permitted 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 of its 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.

G. J. 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.

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

1. Within twenty-four hours of 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.

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