SB1243 - 572R

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

Section 1. Section 36-541.01, Arizona Revised Statutes, is amended to read:

START_STATUTE36-541.01. Release or discharge from treatment before expiration of period ordered by court; notification of intent to release or discharge; hearing; immunity

A. A patient who is found to have a grave disability or a persistent or acute disability and who is ordered to undergo treatment pursuant to this article may be released from inpatient treatment when, in the opinion of the medical director of the mental health treatment agency, the level of care offered by the mental health treatment agency is no longer required. The patient may agree to continue treatment voluntarily. If the patient is to be released, the medical director of the mental health treatment agency shall arrange for an appropriate alternative placement. If the patient who is to be released from inpatient treatment is under a guardianship, the medical director of the mental health treatment agency shall notify the guardian and any relevant regional behavioral health authority at least ten days before the intended release date that the patient no longer requires the level of care that is offered by the mental health treatment agency. The guardian and, if relevant, the regional behavioral health authority shall arrange alternative placement with the advice and recommendations of the medical director of the mental health treatment agency.

B. A patient who is ordered to undergo treatment pursuant to this article may be released from treatment before the expiration of the period ordered by the court if, in the opinion of the medical director of the mental health treatment agency, the patient no longer is, as a result of a mental disorder, a danger to others or a danger to self or no longer has a persistent or acute disability or a grave disability. A person who is ordered to undergo treatment as a danger to others or who has had a petition filed by a prosecutor pursuant to section 13-4517 may not be released or discharged from treatment before the expiration of the period for treatment ordered by the court unless the medical director first gives notice of intention to do so as provided by this section. If the patient who is to be released from treatment is under a guardianship, at least ten days before the intended release date the medical director of the mental health treatment agency shall notify the guardian that in the opinion of the medical director of the mental health treatment agency the patient no longer is, as a result of a mental disorder, a danger to others or a danger to self or no longer has a persistent or acute disability or a grave disability and that the mental health treatment agency intends to release the patient from treatment. A guardian is not required to file a demand for notice pursuant to this subsection.

C. Before the release or discharge of a patient who is ordered to undergo treatment pursuant to this article and BEFORE the expiration of the period for treatment ordered by the court, the medical director of the mental health treatment agency shall notify the following of the medical director's intention of the medical director of the mental health treatment agency to release or discharge the patient:

1. The presiding judge of the court that entered the order for treatment.

2. Any relative or victim of the patient who has filed a demand for notice with the treatment agency court.

3. Any person found by the court to have a legitimate reason for receiving notice.

4. The patient's guardian.

D. If the patient is undergoing court-ordered treatment as the result of a petition filed by a prosecuting agency prosecutor pursuant to section 13-4517, all of the following apply:

1. The person may not be released or discharged from treatment before the expiration of the period for treatment ordered by the court unless the medical director of the mental health TREATMENT agency first gives notice as provided in this subsection.

2. The medical director of the mental health treatment agency shall notify the court and the prosecuting agency if a civil commitment order issued pursuant to this chapter expires or is terminated, or if the patient is discharged to outpatient treatment.

3. The medical director of the mental health treatment agency shall provide this notice by mail at least five days before the anticipated date of the expiration, termination or discharge.

4. This subsection does not apply to amended orders that are a result of the patient's need for acute or emergency care during the period of court-ordered treatment.

E. If the medical director of the mental health treatment agency is unable to determine, based on the information submitted pursuant to subsection F of this section, that a person who has filed a demand for notice is a victim, the medical director shall inform that person that that person's demand for notice is denied and that notice will not be given unless ordered by the court pursuant to subsection G of this section.

F. E. A demand for notice by a relative or victim, and a petition for notice by other persons, shall be filed with the court and shall be made on a form prescribed by the administration, and shall include including the following information:

1. The full name of the PATIENT and the MEntal health number assigned to the case by the superior court.

1. 2. The full name of the person to receive notice.

2. 3. The address to which notice is to be mailed.

3. 4. The telephone number of the person to receive notice.

4. 5. The familial relationship of the person to the patient, if any, or the reasons why the person believes the person has a legitimate reason to receive notice.

6. The factual basis for the person's claim that the person is a victim entitled to notice pursuant to this section.

7. The reasons why the person believes the person has a legitimate reason to receive notice.

5. 8. A statement that the person will advise the mental health treatment agency in writing by certified mail, return receipt requested, of any change in the address to which notice is to be mailed.

6. The full name of the patient who is ordered to undergo treatment as a danger to others or who has had a petition filed by a prosecutor pursuant to section 13-4517.

7. The mental health number assigned to the case by the superior court.

G. F. If When the court receives a demand for notice by a relative or victim, if the court determines that the relative or victim filing the demand for notice is entitled to notice before releasing or discharging the patient, the court shall order the medical director of the mental health treatment agency not to release or discharge the patient before the expiration of the period of court-ordered treatment without first giving notice to the relative or victim as provided in subsection H G of this section. After considering a petition for notice, if the court finds that the petitioner has a legitimate reason for receiving prior notice, the court may order the medical director of the mental health treatment agency not to release or discharge the patient from inpatient treatment before the expiration of the period of court-ordered treatment without first giving notice to the petitioner as provided in subsection H G of this section. Any order for notice shall be delivered to the mental health treatment agency and shall be filed with the patient's clinical record. If the patient is transferred to another agency or institution, any orders for notice shall be transferred with the patient.

H. G. A notice of intention to release or discharge shall include the following information:

1. The name of the patient to be released or discharged.

2. The type of release or discharge.

3. The date of anticipated release or discharge. Notices

H. A notice of intention to release or discharge shall be placed in the mail, postage prepaid and addressed to the court and to each person for whom notice has been ordered or who is entitled to receive notice pursuant to this section, at least ten days before the date of intended release or discharge, except that notice shall be sent to the prosecuting agency at least five days before the date of intended release or discharge. For purposes of computing the notice requirement, the day of mailing shall not be counted.

I. Any person for whom prior notice is required pursuant to this section, or the court, may make a motion within the notification period that requires the court to determine whether the standard for release of the patient before the expiration of the period for court-ordered treatment has been met. A determination that the standard for release has been met may be made by the court based on a review of the record and any affidavits submitted without further hearing. For good cause, the court may order an evidentiary hearing. Whether or not a hearing is held, the court shall make a determination at the earliest possible time but no not longer than three weeks after the anticipated date of release pursuant to subsection H G of this section, and the patient shall be retained for the additional time required for the court's determination. In making its determination the court may order an independent examination of the patient. If a motion is not made, the patient may be released in accordance with the terms set forth in the notice without further court order. If a hearing is held pursuant to this subsection, the court shall order the medical director of the mental health treatment agency to provide the patient's records, including medical and treatment records, to the court, any independent examiner and the prosecuting agency.

J. If the court determines that the standard for release has not been met, the court shall order the patient to continue treatment under the court order for treatment until the expiration of the court order.

J. K. If a motion has not been made pursuant to subsection I of this section, the patient may be released or discharged and the medical director of the mental health treatment agency shall send to the court a certificate that the patient is no longer a danger to others or a danger to self or no longer has a persistent or acute disability or a grave disability as the result of a mental disorder and therefore is released before the expiration of the period ordered for treatment. The court shall enter an order terminating the patient's court-ordered treatment.

K. L. The medical director of the mental health treatment agency shall not be held civilly liable for any acts committed by a patient who is released before the expiration of the period of court-ordered treatment if the medical director of the mental health treatment agency has in good faith followed the requirements of this section. END_STATUTE

Sec. 2. Section 36-543, Arizona Revised Statutes, is amended to read:

START_STATUTE36-543. Annual review; patients with a grave disability or a persistent or acute disability; notice; court order for continued treatment; rules; immunity

A. Within ninety days before the expiration of a court order for treatment, the medical director of the mental health treatment agency shall conduct an annual review of a patient who has been found to have a grave disability or a persistent or acute disability and who is undergoing court-ordered treatment to determine whether the continuation of court-ordered treatment is appropriate and to assess the needs of the patient for guardianship or conservatorship, or both. The annual review shall consist of the mental health treatment and clinical records contained in the patient's treatment file. In determining whether a continuation of court-ordered treatment is appropriate, as part of its annual review the mental health treatment agency shall solicit, accept and consider information relevant to the history of the patient's behavior during and before the period of court-ordered treatment from persons known to the mental health treatment agency who have a significant relationship with the proposed patient, including family members and guardians. The mental health treatment agency shall keep a record of the annual review. If the medical director of the mental health treatment agency believes that a continuation of court-ordered treatment is appropriate, the medical director of the mental health treatment agency shall appoint one or more psychiatrists to carry out a psychiatric examination of the patient. In any proceeding conducted pursuant to this section, a patient has the right to have an analysis of the patient's mental condition by an independent evaluation pursuant to section 36-538.

B. Each examiner participating in the psychiatric examination of the patient shall submit a report to the medical director of the mental health treatment agency that includes the following:

1. The examiner's opinions as to whether the patient continues to have a grave disability or a persistent or acute disability as the result of a mental disorder and be in need of continued court-ordered treatment. In evaluating the patient's need for continued court-ordered treatment, the examiner must consider, along with all other evidence, the patient's history before and during the current period of court-ordered treatment, the patient's compliance with recommended treatment and any other evidence relevant to the patient's ability and willingness to follow recommended treatment with or without a court order.

2. A statement as to whether suitable alternatives to court-ordered treatment are available.

3. A statement as to whether voluntary treatment would be appropriate.

4. A review of the patient's status as to guardianship or conservatorship, or both, the adequacy of existing protections of the patient and the continued need for guardianship or conservatorship, or both. If the examiner concludes that the patient's needs in these areas are not being adequately met, the examiner's report shall recommend that the court order an investigation into the patient's needs.

5. If the patient has an existing guardian who does not have the mental health powers authorized pursuant to section 14-5312.01, a recommendation as to whether the additional mental health powers authorized by section 14-5312.01 should be imposed on the existing guardian and whether the patient's needs can be adequately addressed by a guardian with mental health powers without the need for a court order for treatment or whether the court order for treatment should continue regardless of the additional mental health powers imposed on the guardian.

6. The results of any physical examination conducted during the period of court-ordered treatment if relevant to the psychiatric condition of the patient.

C. After conducting the annual review as prescribed in this section, if the medical director of the mental health treatment agency believes that continued court-ordered treatment is necessary or appropriate, not later than thirty days before the expiration of the court order for treatment, the medical director of the mental health treatment agency shall file with the court an application for continued court-ordered treatment alleging the basis for the application and shall file simultaneously with the application any psychiatric examination conducted as part of the annual review. If the patient is under guardianship, the medical director of the mental health treatment agency shall mail a copy of the application to the patient's guardian. After conducting the annual review as prescribed in this section, if the patient is under a guardianship and the medical director of the mental health treatment agency decides not to file an application for continued court-ordered treatment, the mental health treatment agency shall notify the patient's guardian of this decision at least thirty days before the expiration of the court order for treatment. The guardian may request that the patient be evaluated by an independent evaluator pursuant to section 36-538.

D. At least fifteen days before the expiration of the court order for treatment, the patient's guardian may file with the court an application for continued court-ordered treatment alleging the basis for the application and shall file simultaneously with the application any psychiatric examination conducted on the patient to support the application. The application and any hearing held pursuant to this subsection shall comply with subsections E, F and G of this section.

D. E. If an application for continued court-ordered treatment is filed, all of the following apply:

1. If the patient does not have an attorney, the court shall appoint an attorney to represent the patient.

2. Within ten days after appointment, an attorney appointed pursuant to this subsection, to the extent possible, shall fulfill the duties imposed pursuant to section 36-537, review the medical director's report of the medical director of the mental health treatment agency and the patient's medical records, interview any physician who prepared a report on the annual review and file a response requesting a hearing or submitting the matter to the court for a ruling based on the record without a hearing.

3. If a hearing is not requested, the court shall rule on the application or set the matter for hearing. If a hearing is requested, the hearing shall be held within three weeks after the request for hearing is filed. The hearing may be continued for good cause on motion of a party or on the court's own motion, and the expiration of the current court order for treatment may be extended until a ruling by the court on an application filed pursuant to this subsection.

4. The patient's attorney must be present at all hearings and may subpoena and cross-examine witnesses and present evidence. The patient has the right to attend all hearings, but may choose not to attend a hearing. The patient's attorney may waive the patient's presence after speaking with the patient and confirming that the patient understands the right to be present and does not desire to attend. If the patient is unable to be present at the hearing for medical or psychiatric reasons and the hearing cannot be conducted where the patient is being treated or confined, or the patient cannot appear by another reasonably feasible means, the court shall require clear and convincing evidence that the patient is unable to be present at the hearing and on such a finding may proceed with the hearing in the patient's absence.

5. The evidence presented by the applicant includes the testimony of one or more witnesses acquainted with the patient during the period of court-ordered treatment, which may be satisfied by a statement agreed on by the parties, and the testimony of any physician who performed an annual review of the patient, which may be satisfied by stipulating to the admission of the examining physicians' written report prepared pursuant to subsection B of this section. The court may waive the need for the applicant to present the testimony of witnesses acquainted with the patient as required by this subsection, if it finds that the need for a continued court order for treatment has been established by clear and convincing evidence from the other testimony and evidence presented at the hearing.

6. At a hearing held pursuant to this subsection, the court, with notice, may impose on an existing guardian additional powers pursuant to section 14-5312.01. If the court finds that the patient's needs can be adequately met by an existing guardian with the additional powers pursuant to section 14-5312.01 and that a court order for treatment is not necessary to ensure compliance with necessary treatment, the court may terminate the court order for treatment or decline to issue an order continuing court-ordered treatment. The court may also order an investigation into the need for guardianship or conservatorship, or both, and may appoint a suitable person or agency to conduct the investigation. The appointee may include a court-appointed guardian ad litem, a court-appointed investigator pursuant to section 14-5308 or the public fiduciary if there is no person willing and qualified to act in that capacity. The court shall give notice of the appointment to the appointee within three days after the appointment. The appointee shall submit the report of the investigation to the court within twenty-one days. The report shall include recommendations as to who should be guardian or conservator, or both, and the findings and reasons for the recommendation. If the investigation and report so indicate, the court may authorize an appropriate person to file a petition for appointment of a guardian or conservator for the patient.

E. F. If a hearing is held pursuant to subsection D E of this section, the party seeking the renewal of the court order must prove all of the following by clear and convincing evidence:

1. The patient continues to have a mental disorder and, as a result of that disorder, has either a persistent or acute disability or a grave disability.

2. The patient is in need of continued court-ordered treatment.

3. The patient is either unwilling or unable to accept treatment voluntarily.

F. G. After a hearing held pursuant to subsection D E of this section, the court may order the patient to be released from court-ordered treatment or to undergo continued court-ordered treatment for a period not to exceed the time periods prescribed in section 36-540, subsection D.

G. H. The director shall create and operate a program to ensure that the examination and review of persons with grave disabilities or persistent or acute disabilities under court order are carried out in an effective and timely manner. The director shall adopt rules needed to operate this program.

H. I. The medical director of the mental health treatment agency is not civilly liable for any acts committed by the released patient if the medical director has in good faith complied with the requirements of this article. END_STATUTE