HB2436 - 572R

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

Section 1. Section 36-501, Arizona Revised Statutes, is amended to read:

START_STATUTE36-501. Definitions

In this chapter, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Admitting officer" means a psychiatrist or other physician or psychiatric and mental health nurse practitioner with experience in performing psychiatric examinations who has been designated as an admitting officer of the evaluation agency by the person in charge of the evaluation agency.

3. "Authorized transporter" means a transportation entity that is contracted with a city, town or county to provide services pursuant to this chapter and that is either:

(a) An ambulance service that holds a valid certificate of necessity.

(b) A transportation provider authorized by this state to provide safe behavioral health transportation for individuals requiring transportation pursuant to this chapter.

4. "Chief medical officer" means the chief medical officer under the supervision of the superintendent of the state hospital.

5. "Contraindicated" means that access is reasonably likely to endanger the life or physical safety of the patient or another person.

6. "Court" means the superior court in the county in this state in which the patient resides or was found before screening or emergency admission under this title.

7. "Criminal history" means police reports, lists of prior arrests and convictions, criminal case pleadings and court orders, including a determination that the person has been found incompetent to stand trial pursuant to section 13-4510.

8. "Danger to others" means that the judgment of a person who has a mental disorder is so impaired that the person is unable to understand the person's need for treatment and as a result of the person's mental disorder the person's continued behavior can reasonably be expected, on the basis of competent medical opinion, to result in serious physical harm.

9. "Danger to self":

(a) Means behavior that, as a result of a mental disorder:

(i) Constitutes a danger of inflicting serious physical harm on oneself, including attempted suicide or the serious threat thereof of attempted suicide, if the threat is such that, when considered in the light of its context and in light of the individual's previous acts, it is substantially supportive of an expectation that the threat will be carried out.

(ii) Without hospitalization will result in serious physical harm or serious illness to the person.

(b) Does not include behavior that establishes only the condition of having a grave disability.

10. "Department" means the department of health services.

11. "Detention" means the taking into custody of a patient or proposed patient.

12. "Director" means the director of the administration.

13. "Evaluation" means:

(a) A professional multidisciplinary analysis that may include firsthand observations or remote observations by interactive audiovisual media and that is based on data describing the person's identity, biography and medical, psychological and social conditions carried out by a group of persons consisting of at least the following:

(i) Two licensed physicians who are qualified psychiatrists, if possible, or at least experienced in psychiatric matters, who shall examine and report their findings independently. The person against whom a petition has been filed shall be notified that the person may select one of the physicians. A psychiatric resident in a training program approved by the American medical association or by the American osteopathic association may examine the person in place of one of the psychiatrists if the resident is supervised in the examination and preparation of the affidavit and testimony in court by a qualified psychiatrist appointed to assist in the resident's training, and if the supervising psychiatrist is available for discussion with the attorneys for all parties and for court appearance and testimony if requested by the court or any of the attorneys. In a county with a population of less than five hundred thousand persons, the evaluation may be performed by one physician and either one physician assistant who is experienced in psychiatric matters or one psychiatric and mental health nurse practitioner who shall examine and report their findings independently.

(ii) Two other individuals, one of whom, if available, is a psychologist and in any event a social worker familiar with mental health and human services that may be available placement alternatives appropriate for treatment. An evaluation may be conducted on an inpatient basis, an outpatient basis or a combination of both, and every reasonable attempt shall be made to conduct the evaluation in any language preferred by the person.

(b) A physical examination that is consistent with the existing standards of care and that is performed by one of the evaluating physicians or by or under the supervision of a physician who is licensed pursuant to title 32, chapter 13 or 17 or a registered nurse practitioner who is licensed pursuant to title 32, chapter 15 if the results of that examination are reviewed or augmented by one of the evaluating physicians.

14. "Evaluation agency" means either of the following:

(a) A health care agency that is licensed by the department and that has been approved pursuant to this title to provide the services required of that agency by this chapter.

(b) A facility that is exempt from licensure pursuant to section 36-402, that possesses an accreditation from either a national commission on correctional health care or an American correctional association and that has been approved pursuant to this title to provide the services required of that facility by this chapter.

15. "Family member" means a spouse, parent, adult child, adult sibling or other blood relative of a person undergoing treatment or evaluation pursuant to this chapter.

16. "Grave disability" means a condition evidenced by behavior in which a person, as a result of a mental disorder, is likely to come to serious physical harm or serious illness because the person is unable to provide for the person's own basic physical needs.

17. "Health care decision maker" has the same meaning prescribed in section 12-2801.

18. "Health care entity" means a health care provider, the department, the administration or a regional behavioral health authority that is under contract with the administration.

19. "Health care provider" means a health care institution as defined in section 36-401 that is licensed as a behavioral health provider pursuant to department rules or a mental health provider.

20. "Independent evaluator" means a licensed physician, psychiatric and mental health nurse practitioner or psychologist who is selected by the person to be evaluated or by the person's attorney.

21. "Informed consent" means a voluntary decision following the presentation of all facts necessary to form the basis of an intelligent consent by the patient or guardian with no minimizing of known dangers of any procedures.

22. "Least restrictive treatment alternative" means the treatment plan and setting that infringe in the least possible degree with the patient's right to liberty and that are consistent with providing needed treatment in a safe and humane manner.

23. "Licensed physician" means any medical doctor or doctor of osteopathy who is either:

(a) Licensed in this state.

(b) A full-time hospital physician licensed in another state and serving on the staff of a hospital operated or licensed by the United States government.

24. "Medical director of an evaluation agency" means a psychiatrist, or other licensed physician experienced in psychiatric matters, who is designated in writing by the governing body of the agency as the person in charge of the medical services of the agency for the purposes of this chapter and may include the chief medical officer of the state hospital.

25. "Medical director of a mental health treatment agency" means a psychiatrist, or other licensed physician experienced in psychiatric matters, who is designated in writing by the governing body of the agency as the person in charge of the medical services of the agency for the purposes of this chapter and includes the chief medical officer of the state hospital.

26. "Mental disorder" means a substantial disorder of the person's emotional processes, thought, cognition or memory. Mental disorder is distinguished from:

(a) Conditions that are primarily those of drug abuse, alcoholism or intellectual disability, unless, in addition to one or more of these conditions, the person has a mental disorder.

(b) The declining mental abilities that directly accompany impending death.

(c) Character and personality disorders characterized by lifelong and deeply ingrained antisocial behavior patterns, including sexual behaviors that are abnormal and prohibited by statute unless the behavior results from a mental disorder.

27. "Mental health provider" means any physician or provider of mental health or behavioral health services who is involved in evaluating, caring for, treating or rehabilitating a patient.

28. "Mental health treatment agency" means any of the following:

(a) The state hospital.

(b) A health care agency that is licensed by the department and that provides the services that are required of the agency by this chapter.

(c) A facility that is exempt from licensure pursuant to section 36-402, that possesses an accreditation from either a national commission on correctional health care or an American correctional association and that provides the services that are required of the facility by this chapter.

29. "Outpatient treatment" or "combined inpatient and outpatient treatment" means any treatment program that does not requiring require continuous inpatient hospitalization.

30. "Outpatient treatment plan" means a treatment plan that does not require continuous inpatient hospitalization.

31. "Patient" means any person who is undergoing examination, evaluation or behavioral or mental health treatment under this chapter.

32. "Peace officers" means sheriffs of counties, constables, marshals and policemen of cities and towns.

33. "Persistent or acute disability" means a severe mental disorder that meets all the following criteria:

(a) Significantly impairs judgment, reason, behavior or capacity to recognize reality.

(b) If not treated, has a substantial probability of causing the person to suffer or continue to suffer severe and abnormal mental, emotional or physical harm.

(c) Substantially impairs the person's capacity to make an informed decision regarding treatment, and this impairment causes the person to be incapable of understanding and expressing an understanding of the advantages and disadvantages of accepting treatment and understanding and expressing an understanding of the alternatives to the particular treatment offered after the advantages, disadvantages and alternatives are explained to that person.

(d) Has a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment.

34. "Prepetition screening" means the review of each application requesting court-ordered evaluation, including an investigation of facts alleged in the application, an interview with each applicant and an interview, if possible, with the proposed patient. The purpose of the interview with the proposed patient is to assess the problem, explain the application and, when indicated, attempt to persuade the proposed patient to receive, on a voluntary basis, evaluation or other services.

35. "Prescribed form" means a form established by a court or the rules of the administration in accordance with the laws of this state.

36. "Professional" means a physician who is licensed pursuant to title 32, chapter 13 or 17, a psychologist who is licensed pursuant to title 32, chapter 19.1 or a psychiatric and mental health nurse practitioner who is certified pursuant to title 32, chapter 15.

37. "Proposed patient" means a person for whom an application for evaluation has been made or a petition for court-ordered evaluation has been filed.

38. "Prosecuting agency" means the county attorney, attorney general or city attorney who applied or petitioned for an evaluation or treatment pursuant to this chapter.

39. "Psychiatric and mental health nurse practitioner" means a registered nurse practitioner as defined in section 32-1601 who has completed an adult or family psychiatric and mental health nurse practitioner program and who is certified as an adult or family psychiatric and mental health nurse practitioner by the state board of nursing.

40. "Psychiatrist" means a licensed physician who has completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association.

41. "Psychologist" means a person who is licensed under title 32, chapter 19.1 and who is experienced in the practice of clinical psychology.

42. "Records" means all communications that are recorded in any form or medium and that relate to patient examination, evaluation or behavioral or mental health treatment. Records include medical records that are prepared by a health care provider or other providers. Records do not include:

(a) Materials that are prepared in connection with utilization review, peer review or quality assurance activities, including records that a health care provider prepares pursuant to section 36-441, 36-445, 36-2402 or 36-2917.

(b) Recorded telephone and radio calls to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity.

43. "Regional behavioral health authority" has the same meaning prescribed in section 36-3401.

44. "Screening agency" means a health care agency that is licensed by the department and that provides those services required of the agency by this chapter.

45. "Social worker" means a person who has completed two years of graduate training in social work in a program approved by the council of social work education and who has experience in mental health.

46. "State hospital" means the Arizona state hospital.

47. "Superintendent" means the superintendent of the state hospital.

48. "Voluntary evaluation" means the ongoing collection and analysis of a person's medical, psychological, psychiatric and social conditions in order to initially determine if a health disorder exists and if there is a need for behavioral health services and, on an ongoing basis, to ensure that the person's service plan is designed to meet the person's and the person's family's current needs and long-term goals. 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. 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 a county with a population of less than five hundred thousand persons, if no psychiatrist or physician who is experienced in psychiatric matters is available, the psychiatric examination of the patient may be performed by a physician assistant who is experienced in psychiatric matters or by a psychiatric and mental health nurse practitioner. 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.

D. 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. If a hearing is held pursuant to subsection D 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. After a hearing held pursuant to subsection D 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. 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. 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 of the mental health treatment agency has in good faith complied with the requirements of this article. END_STATUTE