Bill Text: AZ SB1315 | 2015 | Fifty-second Legislature 1st Regular | Introduced
Bill Title: Incompetent and dangerous defendants; treatment
Spectrum: Slight Partisan Bill (Republican 6-2)
Status: (Introduced - Dead) 2015-02-24 - Senate majority caucus: Do pass [SB1315 Detail]
Download: Arizona-2015-SB1315-Introduced.html
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REFERENCE TITLE: incompetent and dangerous defendants; treatment |
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State of Arizona Senate Fifty-second Legislature First Regular Session 2015
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SB 1315 |
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Introduced by Senators Driggs, Kavanagh; Representative Steele: Senators Barto, Farley, Worsley; Representatives Boyer, Fann
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AN ACT
Amending sections 13‑3994, 13‑4501, 13‑4505, 13‑4507, 13‑4509, 13‑4515 and 13‑4517, Arizona Revised Statutes; Amending title 13, chapter 41, Arizona Revised Statutes, by adding section 13‑4518; amending sections 36‑509, 36‑520, 36‑522, 36‑523, 36‑529, 36‑531, 36‑533, 36‑534, 36‑540 and 36‑540.01, Arizona Revised Statutes; amending title 36, chapter 5, article 5, Arizona Revised Statutes, by adding section 36‑540.03; amending sections 36-541.01, 36‑542, 36‑543, 36‑544, 36‑546 and 36‑3701, Arizona Revised Statutes; relating to incompetent and dangerous defendants.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-3994, Arizona Revised Statutes, is amended to read:
13-3994. Commitment; hearing; jurisdiction; definition
A. A person who is found guilty except insane pursuant to section 13‑502 shall be committed to a secure state mental health facility under the department of health services for a period of treatment.
B. If the criminal act of the person committed pursuant to subsection A of this section did not cause the death or serious physical injury of or the threat of death or serious physical injury to another person Except for persons who have committed a serious offense or violent or aggravated felony as defined in section 13‑706 or an offense under chapter 14 or 35.1 of this title, the court shall set a hearing date within seventy‑five days after the person's commitment to determine if the person is entitled to release from confinement or if the person meets the standards for civil commitment pursuant to title 36, chapter 5. The court shall notify the medical director of the mental health facility, the attorney general, the county attorney, the victim and the attorney representing the person, if any, of the date of the hearing. Fourteen days before the hearing the director of the mental health facility shall submit to the court a report addressing the person's mental health and dangerousness.
C. At a hearing held pursuant to subsection B of this section:
1. If the person proves by clear and convincing evidence that the person no longer suffers from a mental disease or defect and is not dangerous, the court shall order the person's release and the person's commitment ordered pursuant to section 13‑502, subsection D shall terminate. Before determining to release a person pursuant to this paragraph, the court shall consider the entire criminal history of the person and shall not order the person's release if the court determines that the person has a propensity to reoffend.
2. If the court finds that the person still suffers from a mental disease or defect, may present a threat of danger to self or others, has a grave, persistent or acute disability or has a propensity to reoffend, it shall order the county attorney to institute civil commitment proceedings pursuant to title 36 or refer the person to a behavioral health advisory board established pursuant to section 13‑4518 and the person's commitment ordered pursuant to section 13‑502, subsection D shall terminate.
D. If the court finds that the criminal act of the person committed pursuant to subsection A of this section caused the death or serious physical injury of or the threat of death or serious physical injury to another person has committed a serious offense or violent or aggravated felony as defined in section 13‑706 or an offense under chapter 14 or 35.1 of this title, the court shall place the person under the jurisdiction of the psychiatric security review board. The court shall state the beginning date, length and ending date of the board's jurisdiction over the person. The length of the board's jurisdiction over the person is equal to the sentence the person could have received pursuant to section 13‑707 or section 13‑751, subsection A or the presumptive sentence the defendant could have received pursuant to section 13‑702, subsection D, section 13‑703, section 13‑704, section 13‑705, section 13-706, subsection A, section 13‑710 or section 13‑1406. In making this determination the court shall not consider the sentence enhancements for prior convictions under section 13‑703 or 13‑704. The court shall retain jurisdiction of all matters that are not specifically delegated to the psychiatric security review board for the duration of the presumptive sentence.
E. A person who is placed under the jurisdiction of the psychiatric security review board pursuant to subsection D of this section is not eligible for discharge from the board's jurisdiction until the board's jurisdiction over the person expires.
F. A person who is placed under the jurisdiction of the psychiatric security review board pursuant to subsection D of this section is not entitled to a hearing before the board earlier than one hundred twenty days after the person's initial commitment. A request for a subsequent release hearing may be made pursuant to subsection H of this section. After the hearing, the board may take one of the following actions:
1. If the psychiatric security review board finds that the person still suffers from a mental disease or defect and is dangerous, the board shall order that the person remain committed at the secure state mental health facility.
2. If the person proves by clear and convincing evidence that the person no longer suffers from a mental disease or defect and is not dangerous, the psychiatric security review board shall order the person's release. The person shall remain under the jurisdiction of the board. Before determining to release a person pursuant to this paragraph, the board shall consider the entire criminal history of the person and shall not order the person's release if the board determines that the person has a propensity to reoffend.
3. If the psychiatric security review board finds that the person still suffers from a mental disease or defect or that the mental disease or defect is in stable remission but the person is no longer dangerous, the board shall order the person's conditional release. The person shall remain under the board's jurisdiction. The board in conjunction with the state mental health facility and behavioral health community providers shall specify the conditions of the person's release. The board shall continue to monitor and supervise a person who is released conditionally. Before the conditional release of a person, a supervised treatment plan shall be in place, including the necessary funding to implement the plan.
4. If the person is sentenced pursuant to section 13‑704, section 13‑710 or section 13‑751, subsection A and the psychiatric security review board finds that the person no longer needs ongoing treatment for a mental disease and the person is dangerous or has a propensity to reoffend, the board shall order the person to be transferred to the state department of corrections for the remainder of the sentence imposed pursuant to section 13‑502, subsection D. The board shall consider the safety and protection of the public.
G. Within twenty days after the psychiatric security review board orders a person to be transferred to the state department of corrections, the person may file a petition for a judicial determination. The person shall serve a copy of the request on the attorney general. If the person files a petition for a judicial determination, the person shall remain in a state mental health facility pending the result of the judicial determination. The person requesting the judicial determination has the burden of proving the issues by clear and convincing evidence. The judicial determination is limited to the following issues:
1. Whether the person no longer needs ongoing treatment for a mental disease.
2. Whether the person is dangerous or has a propensity to reoffend.
H. A person who is placed under the jurisdiction of the psychiatric security review board pursuant to subsection D of this section may not seek a new release hearing earlier than twenty months after a prior release hearing, except that the medical director of the state mental health facility may request a new release hearing for a person under the jurisdiction of the psychiatric security review board at any time. The person shall not be held in confinement for more than two years without a hearing before the board to determine if the person should be released or conditionally released.
I. At any hearing for release or conditional release pursuant to this section:
1. Public safety and protection are primary.
2. The applicant has the burden of proof by clear and convincing evidence.
J. At least fifteen days before a hearing is scheduled to consider a person's release, or before the expiration of the board's jurisdiction over the person, the state mental health facility or supervising agency shall submit to the psychiatric security review board a report on the person's mental health. The psychiatric security review board shall determine whether to release the person or to order the county attorney to institute civil commitment proceedings pursuant to title 36.
K. The procedures for civil commitment govern the continued commitment of the person after the expiration of the jurisdiction of the psychiatric security review board.
L. Before a person is released or conditionally released, at least three of the five psychiatric security review board members shall vote for the release or conditional release.
M. If at any time while the person remains under the jurisdiction of the psychiatric security review board it appears to the board, the chairman or vice‑chairman of the board or the medical director of the state mental health facility that the person has failed to comply with the terms of the person's conditional release or that the mental health of the person has deteriorated, the board or the chairman or vice‑chairman of the board for good cause or the medical director of the state mental health facility may order that the person be returned to a secure state mental health facility for evaluation or treatment. A written order of the board, the chairman or vice‑chairman of the board or the medical director is sufficient warrant for any law enforcement officer to take the person into custody and to transport the person accordingly. Any sheriff or other peace officer shall execute the order and shall immediately notify the board of the person's return to the facility. Within twenty days after the person's return to a secure state mental health facility the board shall conduct a hearing and shall give notice within five days before the hearing of the time and place of the hearing to the person, the victim, the attorney representing the person, the county attorney and the attorney general.
N. The director of a facility that is providing treatment to a person on conditional release or any other person who is responsible for the supervision of the person may take the person or request that the person be taken into custody if there is reasonable cause to believe that the person's mental health has deteriorated to the point that the person's conditional release should be revoked and that the person is in need of immediate care, custody or treatment or that deterioration is likely because of noncompliance with a treatment program. A person who is taken into custody pursuant to this subsection shall be transported immediately to a secure state mental health facility and shall have the same rights as any person appearing before the psychiatric security review board.
O. Before the initial hearing or any other hearing before the psychiatric security review board on the release or conditional release of the person, the person, the attorney who is representing the person and the attorney general or county attorney who is representing the state may choose a psychiatrist licensed pursuant to title 32, chapter 13 or 17 or a psychologist licensed pursuant to title 32, chapter 19.1 to examine the person. All costs in connection with the examination shall be approved and paid by the county of the sentencing court. The written examination results shall be filed with the board and shall include an opinion as to:
1. The mental condition of the person.
2. Whether the person is dangerous.
P. Notwithstanding subsection O of this section, the board or the chairman of the board for good cause may order an independent mental health evaluation by a psychiatrist licensed pursuant to title 32, chapter 13 or 17 or a psychologist licensed pursuant to title 32, chapter 19.1. The written examination results shall be filed with the board pursuant to subsection O of this section.
Q. If a person is found guilty except insane pursuant to section 13‑502, the department of health services shall assume custody of the person within ten days after receiving the order committing the person pursuant to subsection A of this section. The Arizona state hospital shall collect census data for guilty except insane treatment programs to establish maximum capacity and the allocation formula required pursuant to section 36‑206, subsection D. If the Arizona state hospital reaches its funded capacity for forensic programs, the department of health services may defer the admission of the person found guilty except insane for up to an additional twenty days. The department of health services shall reimburse the county for the actual costs of each day the admission is deferred. If the department of health services is not able to admit the person found guilty except insane at the conclusion of the twenty day deferral period, the department of health services shall notify the sentencing court, the prosecutor and the defense counsel of this fact. On receipt of this notification, the prosecutor or the person's defense counsel may request a hearing to determine the likely length of time admission will continue to be deferred and whether any other action should be taken. On receipt of the request for hearing, the court shall set a hearing within ten days.
R. For the purposes of this section, "state mental health facility" means a secure state mental health facility under the department of health services.
Sec. 2. Section 13-4501, Arizona Revised Statutes, is amended to read:
13-4501. Definitions
In this chapter, unless the context otherwise requires:
1. "Clinical liaison" means a mental health expert or any other individual who has experience and training in mental health or developmental disabilities and who is qualified and appointed by the court to aid in coordinating the treatment or training of individuals who are found incompetent to stand trial. If intellectual disability is an issue, the clinical liaison shall be an expert in intellectual disabilities.
2. "Dangerous" means, except as used in paragraph 6 of this section, charged with a serious offense or violent or aggravated felony as defined in section 13‑706 and, as a result of a mental illness, defect or disability, likely to commit another serious offense or violent or aggravated felony or cause serious physical injury to another person.
2. 3. "Incompetent to stand trial" means that as a result of a mental illness, defect or disability a defendant is unable to understand the nature and object of the proceeding or to assist in the defendant's defense. In the case of a person under eighteen years of age when the issue of competency is raised, incompetent to stand trial also means a person who does not have sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the person. The presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial.
3. 4. "Mental health expert" means a physician who is licensed pursuant to title 32, chapter 13 or 17 or a psychologist who is licensed pursuant to title 32, chapter 19.1 and who is:
(a) Familiar with this state's competency standards and statutes.
(b) Familiar with the treatment, training and restoration programs that are available in this state.
(c) Certified by the court as meeting court developed guidelines using recognized programs or standards.
4. 5. "Mental illness, defect or disability" means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including congenital mental conditions, conditions resulting from injury or disease and developmental disabilities as defined in section 36‑551.
5. 6. "Threat to public safety" means charged with the commission of any of the following:
(a) A crime involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the infliction of physical injury on another person.
(b) A dangerous crime against children pursuant to section 13‑705.
(c) Two or more nondangerous felonies within a period of twenty‑four months.
Sec. 3. Section 13-4505, Arizona Revised Statutes, is amended to read:
13-4505. Appointment of experts; examinations; evaluation; costs; immunity
A. If the court determines pursuant to section 13‑4503 that reasonable grounds exist for a competency examination, the court shall appoint two or more mental health experts to examine the defendant, issue a report and, if necessary, testify regarding the defendant's competency. The court, on its own motion or upon motion of any party, may order that one of the mental health experts appointed shall be a physician specializing in psychiatry and licensed pursuant to title 32, chapter 13 or 17. The state and the defendant, upon approval of the court, may stipulate to the appointment of only one expert.
B. The court may order the defendant to submit to physical, neurological or psychological examinations, if necessary, to adequately determine the defendant's mental condition.
C. If the defendant is charged with a sexually violent offense as defined in section 36-3701 and the county attorney requests, the court may order the defendant to be evaluated as a sexually violent person as defined in section 36-3701. One of the mental health experts appointed by the court shall be a competent professional as defined in section 36-3701. If that expert determines that the defendant is incompetent to stand trial and not restorable to competency within twenty‑one months, the expert shall determine whether the defendant may be a sexually violent person.
C. D. The court shall order the defendant to pay the costs of the court ordered examination, except that if the court finds the defendant is indigent or otherwise unable to pay all or any part of the costs or if the prosecution requested the examination, the court shall order the county to pay the costs of the examination or, if the case is referred by a municipal court judge, the court shall order the city to pay the costs of the examination.
D. E. This section does not prohibit any party from retaining its own expert to conduct any additional examinations at its own expense.
E. F. A person who is appointed as a mental health expert or clinical liaison is entitled to immunity, except that the mental health expert or clinical liaison may be liable for intentional, wanton or grossly negligent acts that are done in the performance of the expert's or liaison's duties.
Sec. 4. Section 13-4507, Arizona Revised Statutes, is amended to read:
13-4507. Examination of competency to stand trial
A. The court shall set and may change the conditions under which the examination is conducted.
B. The defense attorney shall be available to the mental health expert conducting the examination.
C. A proceeding to determine if a defendant is competent to stand trial shall not delay a judicial determination of the defendant's eligibility for pretrial release. A defendant who is otherwise entitled to pretrial release shall not be involuntarily confined or taken into custody solely because the issue of the defendant's competence to stand trial is raised and an examination is ordered unless the court determines that the defendant's confinement is necessary for the evaluation process.
D. If a defendant is released from custody under any pretrial release provision, the court may order the defendant to appear at a designated time and place for an outpatient examination. The court may make the appearance a condition of the defendant's pretrial release.
E. The court may order that the defendant be involuntarily confined until the examination is completed if the court determines that any of the following applies:
1. The defendant will not submit to an outpatient examination as a condition of pretrial release.
2. The defendant refuses to appear for an examination.
3. An adequate examination is impossible without the confinement of the defendant.
4. The defendant is a threat to public safety or is charged with a serious offense or violent or aggravated felony as defined in section 13‑706.
F. If a defendant is committed for an inpatient examination, the length of the commitment shall not exceed the period of time that is necessary for the examination. The commitment for examination shall not exceed thirty days, except that the commitment may be extended by fifteen days if the court finds that extraordinary circumstances exist. The county shall pay the costs of any inpatient examination ordered by the court, except that the city shall pay the costs of any inpatient examination that is ordered by a municipal court judge.
Sec. 5. Section 13-4509, Arizona Revised Statutes, is amended to read:
13-4509. Expert's report
A. An expert who is appointed pursuant to section 13‑4505 shall submit a written report of the examination to the court within ten working days after the examination is completed. The report shall include at least the following information:
1. The name of each mental health expert who examines the defendant.
2. A description of the nature, content, extent and results of the examination and any test conducted and any instrument or tool used to assess the defendant's propensity to reoffend.
3. The facts on which the findings are based.
4. An opinion as to the competency of the defendant.
B. If the mental health expert determines that the defendant is incompetent to stand trial, the report shall also include the following information:
1. The nature of the mental disease, defect or disability that is the cause of the incompetency.
2. The defendant's prognosis.
3. The nature of the mental disorder, disease or defect or of any personality or other disorder that may affect the defendant's propensity to reoffend.
3. 4. The most appropriate form and place of treatment in this state, based on the defendant's therapeutic needs and potential threat to public safety.
4. 5. Whether the defendant is incompetent to refuse treatment and should be subject to involuntary treatment.
6. If the prognosis includes a determination as to whether there is no substantial probability that the defendant will regain competency within twenty-one months after the date of the original finding of incompetency, whether the defendant should be considered dangerous or may be a sexually violent person.
C. If the mental health examiner determines that the defendant is currently competent by virtue of ongoing treatment with psychotropic medication, the report shall address the necessity of continuing that treatment and shall include a description of any limitations that the medication may have on competency.
Sec. 6. Section 13-4515, Arizona Revised Statutes, is amended to read:
13-4515. Duration of order; excluded time calculation; notice of dismissed charge or voided order; petitions
A. An order or combination of orders that is issued pursuant to section 13‑4512 or 13‑4514 shall not be in effect for more than twenty‑one months or the maximum possible sentence the defendant could have received pursuant to section 13‑702, section 13‑703, section 13‑704, subsection A, B, C, D or E, section 13‑705, section 13‑706, subsection A, section 13‑708, subsection D or section 13‑751 or any section for which a specific sentence is authorized, whichever is less. In making this determination the court shall not consider the sentence enhancements under section 13‑703 or 13-704 for prior convictions.
B. The court shall only consider the time a defendant actually spends in a restoration to competency program when calculating the time requirements pursuant to subsection A of this section.
C. The court shall notify the prosecutor, the defense attorney, the medical supervisor and the treating facility if the charges against the defendant are dismissed or if an order is voided by the court. No charges shall be dismissed without a hearing prior to before the dismissal.
D. If a defendant is discharged or released on the expiration of an order or orders issued pursuant to section 13‑4512 or 13‑4514, the medical supervisor may file a petition stating that the defendant requires further treatment pursuant to title 36, chapter 5, or appointment of a guardian pursuant to title 14 or referral to a behavioral health advisory board pursuant to section 13‑4518.
Sec. 7. Section 13-4517, Arizona Revised Statutes, is amended to read:
13-4517. Incompetent defendants; disposition
A. If the court finds that a defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within twenty‑one months after the date of the original finding of incompetency, any party may request that the court:
1. Hold a hearing to determine whether the defendant is dangerous.
1. 2. Remand Direct the institution of civil commitment proceedings pursuant to title 36, chapter 5, which may include remanding the defendant to the custody of the department of health services for the institution of civil commitment proceedings pursuant to title 36, chapter 5.
2. 3. Appoint a guardian pursuant to title 14, chapter 5.
4. Refer the defendant to the behavioral health advisory board pursuant to section 13‑4518.
3. 5. Release the defendant from custody and dismiss the charges against the defendant without prejudice.
B. If the court holds a hearing pursuant to subsection A, paragraph 1 of this section, the state shall prove by clear and convincing evidence that the defendant is dangerous and committed the charged offense. The court may admit hearsay evidence, including chain of custody documents, laboratory reports, authentication records, court documents or other public or business records. The court may hold a hearing pursuant to this section concurrently with a hearing pursuant to title 36, chapter 5.
C. If the court enters an order pursuant to subsection A, paragraph 2, 3 or 4 of this section, it may also order an assessment of the defendant's eligibility for private insurance or public benefits that may be applied to the expenses of the defendant's medically necessary maintenance and treatment, including services pursuant to title 36, chapter 29, state-only behavioral health services, title XVIII and the medicare part D prescription drug benefit, supplemental security income and supplemental security disability income.
D. On its own motion or that of any party, the court may retain jurisdiction over the defendant throughout the time necessary to determine the defendant's appropriate treatment options and the implementation of the court's treatment orders. The court, on its own motion or that of any party, may retain jurisdiction over the defendant until the treatment orders expire or the defendant is otherwise discharged from treatment by court order.
E. If the court remands the defendant to the custody of the department of health services for the institution of civil commitment proceedings pursuant to title 36, chapter 5 and the court is notified that the defendant was not evaluated, the defendant shall be transported back to the jail and the court may explore other treatment options consistent with this section.
F. If a mental health expert has determined that the defendant may be a sexually violent person, the mental health expert shall provide the report to the county attorney so that the county attorney may file a petition for detention pursuant to section 36‑3702.
Sec. 8. Title 13, chapter 41, Arizona Revised Statutes, is amended by adding section 13-4518, to read:
13-4518. Behavioral health advisory board; members; continuum of care plans; requirements; definition
A. A county may establish a behavioral health advisory board to recommend to the court a continuum of care plan for a defendant and supervise the delivery of services to the defendant.
B. A behavioral health advisory board may consist of the presiding judge of the superior court or the judge's designee, a county clinical court liaison, the county attorney and the public defender, or their designees, a representative of a regional behavioral health authority, a county behavioral health administrator or the administrator's designee, a person licensed pursuant to title 32, chapter 33, article 3 and any other person appointed by the county administrator.
C. At the direction of the court, the board shall develop a continuum of care plan for a defendant with the goal of maximizing community resources to best protect and care for the defendant's needs while protecting the public. The court shall approve the plan and require the board to report the defendant's progress at whatever frequency the court determines but at least every one hundred eighty days during the first year of treatment and every three hundred sixty days thereafter. The court may set additional review hearings at its discretion. A continuum of care plan remains in effect until terminated by the court or the expiration of the presumptive sentence the defendant could have received if the defendant had been convicted as charged.
D. At any hearing held pursuant to subsection C of this section, the defendant may seek to alter the defendant's continuum of care plan or to be discharged from the plan. The defendant shall provide notice to the court and the county attorney of the defendant's intention to be discharged from or to alter the plan.
E. The board may alter a defendant's continuum of care plan to meet any acute treatment or other needs, without court order, but shall provide notice to the court of any alteration lasting longer than thirty days. The court shall set a hearing and give notice of the hearing to the county attorney. The defendant shall be provided with counsel. The board or the parties shall provide the court with any relevant information necessary to revise or maintain the defendant's continuum of care plan.
F. A defendant may not be discharged from the defendant's continuum of care plan without an order of the court after a hearing. The board may request a hearing at any time and shall provide notice to the county attorney setting forth the reason for the request. The county attorney may attend and present evidence or argument.
G. A county may contract with a behavioral health advisory board in another county to provide continuum of care services to persons for whom the superior court has retained jurisdiction pursuant to section 13‑4517.
H. For the purposes of this section, "continuum of care" means an individualized range of programs and services that may encompass any combination of residential and acute care placement, programs and services, including day programs, supervised group homes, drug or alcohol treatment or services available through the division of developmental disabilities in the department of economic security.
Sec. 9. Section 36-509, Arizona Revised Statutes, is amended to read:
36-509. Confidential records; immunity
A. A health care entity must keep records and information contained in records confidential and not as public records, except as provided in this section. Records and information contained in records may only be disclosed to:
1. Physicians and providers of health, mental health or social and welfare services involved in caring for, treating or rehabilitating the patient.
2. Individuals to whom the patient or the patient's health care decision maker has given authorization to have information disclosed.
3. Persons authorized by a court order.
4. Persons doing research only if the activity is conducted pursuant to applicable federal or state laws and regulations governing research.
5. The state department of corrections in cases in which prisoners confined to the state prison are patients in the state hospital on authorized transfers either by voluntary admission or by order of the court.
6. Governmental or law enforcement agencies if necessary to:
(a) Secure the return of a patient who is on unauthorized absence from any agency where the patient was undergoing evaluation and treatment.
(b) Report a crime on the premises.
(c) Avert a serious and imminent threat to an individual or the public.
7. Persons, including family members, actively participating in the patient's care, treatment or supervision. A health care provider may only release information relating to the patient's diagnosis, prognosis, need for hospitalization, anticipated length of stay, discharge plan, medication, medication side effects and short‑term and long‑term treatment goals. A health care provider may make this release only after the treating professional or that person's designee interviews the patient or the patient's health care decision maker and the patient or the patient's health care decision maker does not object, unless federal or state law permits the disclosure. If the patient does not have the opportunity to object to the disclosure because of incapacity or an emergency circumstance and the patient's health care decision maker is not available to object to the release, the health care provider in the exercise of professional judgment may determine if the disclosure is in the best interests of the patient and, if so, may release the information authorized pursuant to this paragraph. A decision to release or withhold information is subject to review pursuant to section 36‑517.01. The health care provider must record the name of any person to whom any information is given under this paragraph.
8. A state agency that licenses health professionals pursuant to title 32, chapter 13, 15, 17, 19.1 or 33 and that requires these records in the course of investigating complaints of professional negligence, incompetence or lack of clinical judgment.
9. A state or federal agency that licenses health care providers.
10. A governmental agency or a competent professional, as defined in section 36‑3701, in order to comply with chapter 37 of this title.
11. Human rights committees established pursuant to title 41, chapter 35. Any information released pursuant to this paragraph shall comply with the requirements of section 41‑3804 and applicable federal law and shall be released without personally identifiable information unless the personally identifiable information is required for the official purposes of the human rights committee. Case information received by a human rights committee shall be maintained as confidential. For the purposes of this paragraph, "personally identifiable information" includes a person's name, address, date of birth, social security number, tribal enrollment number, telephone or telefacsimile number, driver license number, places of employment, school identification number and military identification number or any other distinguishing characteristic that tends to identify a particular person.
12. A patient or the patient's health care decision maker pursuant to section 36‑507.
13. The department of public safety or another law enforcement agency by the court to comply with the requirements of section 36‑540, subsections O Q and P R.
14. A third-party payor or the payor's contractor as permitted by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 160 and part 164, subpart E.
15. A private entity that accredits the health care provider and with whom the health care provider has an agreement requiring the agency to protect the confidentiality of patient information.
16. The legal representative of a health care entity in possession of the record for the purpose of securing legal advice.
17. A person or entity as otherwise required by state or federal law.
18. A person or entity as permitted by the federal regulations on alcohol and drug abuse treatment (42 Code of Federal Regulations part 2).
19. A person or entity to conduct utilization review, peer review and quality assurance pursuant to section 36‑441, 36‑445, 36‑2402 or 36‑2917.
20. A person maintaining health statistics for public health purposes as authorized by law.
21. A grand jury as directed by subpoena.
22. A person or entity that provides services to the patient's health care provider, as defined in section 12‑2291, and with whom the health care provider has a business associate agreement that requires the person or entity to protect the confidentiality of patient information as required by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 164, subpart E.
B. Information and records obtained in the course of evaluation, examination or treatment and submitted in any court proceeding pursuant to this chapter or title 14, chapter 5 are confidential and are not public records unless the hearing requirements of this chapter or title 14, chapter 5 require a different procedure. Information and records that are obtained pursuant to this section and submitted in a court proceeding pursuant to title 14, chapter 5 and that are not clearly identified by the parties as confidential and segregated from nonconfidential information and records are considered public records.
C. Notwithstanding subsections A and B of this section, the legal representative of a patient who is the subject of a proceeding conducted pursuant to this chapter and title 14, chapter 5 has access to the patient's information and records in the possession of a health care entity or filed with the court.
D. A health care entity that acts in good faith under this article is not liable for damages in any civil action for the disclosure of records or payment records that is made pursuant to this article or as otherwise provided by law. The health care entity is presumed to have acted in good faith. This presumption may be rebutted by clear and convincing evidence.
Sec. 10. Section 36-520, Arizona Revised Statutes, is amended to read:
36-520. Application for evaluation; definition
A. Any responsible individual may apply for a court‑ordered evaluation of a person who is alleged to be, as a result of a mental disorder, a danger to self or to others, or a person with a persistent or acute disability or a grave disability and who is unwilling or unable to undergo a voluntary evaluation. The application shall be made in the prescribed form and manner as adopted by the deputy director.
B. The application for evaluation shall include the following data:
1. The name, and address if known, of the proposed patient for whom evaluation is applied.
2. The age, date of birth, sex, race, marital status, occupation, social security number, present location, dates and places of previous hospitalizations, names and addresses of the guardian, spouse, next of kin and significant other persons and other data that the deputy director may require on the form to whatever extent that this data is known and is applicable to the proposed patient.
3. Any criminal history of the proposed patient, including whether the person has ever been found incompetent to stand trial pursuant to section 13‑4510.
3. 4. The name, address and relationship of the person who is applying for the evaluation.
4. 5. A statement that the proposed patient is believed to be, as a result of a mental disorder, a danger to self or to others, or a patient with a persistent or acute disability or a grave disability and the facts on which this statement is based.
5. 6. A statement that the applicant believes the proposed patient is in need of supervision, care and treatment and the facts on which this statement is based.
C. The application shall be signed and notarized.
D. The screening agency shall offer assistance to the applicant in preparation of the application. Upon receipt of the application, the screening agency shall act as prescribed in section 36‑521 within forty‑eight hours of the filing of the application excluding weekends and holidays. If the application is not acted upon within forty‑eight hours, the reasons for not acting promptly shall be reviewed by the director of the screening agency or the director's designee.
E. If the applicant for the court‑ordered evaluation presents the person to be evaluated at the screening agency, the agency shall conduct a prepetition screening examination. Except in the case of an emergency evaluation, the person to be evaluated shall not be detained or forced to undergo prepetition screening against the person's will.
F. If the applicant for the court‑ordered evaluation does not present the person to be evaluated at the screening agency, the agency shall conduct the prepetition screening at the home of the person to be evaluated or any other place the person to be evaluated is found. If prepetition screening is not possible, the screening agency shall proceed as in section 36‑521, subsection B.
G. If a person is being treated by prayer or spiritual means alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner of that church or denomination, such person may not be ordered evaluated, detained or involuntarily treated unless the court has determined that the person is, as a result of mental disorder, a danger to others or to self.
H. Court‑ordered evaluation or treatment pursuant to this chapter shall not operate to change the legal residence of a patient.
I. If the application is not acted upon because it has been determined that the proposed patient does not need an evaluation, the agency after a period of six months shall destroy the application and any other evidence of the application.
J. For the purposes of this section, "person" includes a person who:
1. Is under eighteen years of age.
2. Has been transferred to the criminal division of the superior court pursuant to section 8‑327 or who has been charged with an offense pursuant to section 13‑501.
3. Is under the supervision of an adult probation department.
Sec. 11. Section 36-522, Arizona Revised Statutes, is amended to read:
36-522. Voluntary evaluation
A. Except as provided in section 36‑534, if the petition for court‑ordered evaluation is not filed because it has been determined that the proposed patient will voluntarily receive an evaluation and is unlikely to present a danger to self or others until the voluntary evaluation, the evaluation agency provided for by the county, or selected by the proposed patient, shall be immediately notified and shall provide evaluation of the proposed patient at a scheduled time and place within five days of the notice. The voluntary evaluation may be on an inpatient or outpatient basis.
B. Voluntary inpatient evaluation is subject to the provisions of article 3 of this chapter.
C. Voluntary outpatient evaluation shall conform to the requirements of section 36‑530, subsection D and section 36‑531, subsections B, C and D and shall proceed only after the person to be evaluated has given consent to be evaluated by signing a form prescribed by the deputy director which that includes information to the proposed patient that the patient‑physician privilege does not apply and that the evaluation may result in a petition for the person to undergo court‑ordered treatment or for guardianship. Voluntary evaluation may be carried out only if chosen by the patient during the course of a prepetition screening after application for evaluation has been made.
Sec. 12. Section 36-523, Arizona Revised Statutes, is amended to read:
36-523. Petition for evaluation
A. The petition for evaluation shall contain the following:
1. The name, address and interest in the case of the individual who applied for the petition.
2. The name, and address if known, of the proposed patient for whom evaluation is petitioned.
3. The present whereabouts of the proposed patient, if known.
4. A statement alleging that there is reasonable cause to believe that the proposed patient has a mental disorder and is as a result a danger to self or others, has a persistent or acute disability or a grave disability and is unwilling or unable to undergo voluntary evaluation.
5. A summary of the facts which that support the allegations that the proposed patient is dangerous, has a persistent or acute disability or a grave disability and is unwilling or unable to be voluntarily evaluated, including the facts which that brought the proposed patient to the screening agency's attention.
6. Any criminal history of the proposed patient, including whether the person has ever been found incompetent to stand trial pursuant to section 13‑4510.
6. 7. Other information that the deputy director, with the approval of the director, by rule or the court by rule or order may require.
B. The petition shall request that the court issue an order requiring that the proposed patient be given an evaluation and shall advise the court of both of the following:
1. That the opinion of the petitioner is either that the proposed patient is or is not in such a condition that without immediate or continuing hospitalization he is likely to suffer serious physical harm or further deterioration or inflict serious physical harm upon on another person.
2. If the opinion of the petitioner is that the proposed patient is not in the condition described in paragraph 1 of this subsection, that the opinion of the petitioner is either that the evaluation should or should not take place on an outpatient basis.
C. The petition for evaluation shall be accompanied by the application for evaluation, by the recommendation of the county attorney pursuant to section 36‑521 and by a prepetition screening report, unless such documents have not been prepared under a provision of law or in accordance with an order of the court. The petition for evaluation shall also be accompanied by a copy of the application for emergency admission if one exists.
D. A petition and other forms required in a court may be filed only by the screening agency which has prepared the petition.
E. If the petition is not filed because it has been determined that the person does not need an evaluation, the agency after a period of six months shall destroy the petition and the various reports annexed to the petition as required by this section.
F. If the petition is not filed because it has been determined that the person does not need an evaluation and the person has been found by a court to be incompetent to stand trial pursuant to section 13‑4510, the person shall be remanded to the criminal court for disposition under section 13‑4517.
Sec. 13. Section 36-529, Arizona Revised Statutes, is amended to read:
36-529. Order for evaluation; order for detention; hearing
A. If, from the review of the petition for evaluation, the court does not determine that the proposed patient is likely to present a danger to self or others or further deteriorate prior to his hearing on court‑ordered treatment, but determines that there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others, or has a persistent or acute disability or a grave disability, the court shall issue an order directing the proposed patient to submit to an evaluation at a designated time and place, specifying that the evaluation will take place on an inpatient or an outpatient basis. The court may also order that if the person does not or cannot so submit, that he be taken into custody by a police peace officer and delivered to an evaluation agency. If the court makes such a conditional order, it shall also make a conditional appointment of counsel for the person to become effective when and if the person is taken into custody pursuant to this section.
B. If, from review of the petition for evaluation, there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others, or has a persistent or acute disability or a grave disability and that the person requires immediate or continued hospitalization prior to his hearing on court‑ordered treatment, the court shall order the proposed patient taken into custody and evaluated at an evaluation agency. The court shall promptly appoint counsel for the proposed patient. If an intercounty agreement authorizes the same, the court may order that the evaluation be conducted in another county, and the superior court in the county where the evaluation is conducted shall have concurrent jurisdiction to make appropriate orders concerning the proposed patient.
C. If the person is not taken into custody or if the evaluation pursuant to the order of the court under subsection A or B is not initiated within fourteen days from the date of the order, the order and petition for evaluation shall expire. If the person has been found incompetent to stand trial pursuant to section 13‑4510, the court that made that determination and the county attorney shall receive notice of the expiration of the order and petition for evaluation. The criminal court may enter any orders necessary for further disposition pursuant to section 13‑4517.
D. If the person is involuntarily hospitalized, the person shall be informed by his appointed attorney of his rights to a hearing to determine whether he should be involuntarily hospitalized for evaluation and to be represented at the hearing by an attorney. If the patient requests a hearing to determine whether he should be involuntarily hospitalized during evaluation, the court shall schedule a hearing at its first opportunity.
Sec. 14. Section 36-531, Arizona Revised Statutes, is amended to read:
36-531. Evaluation; possible dispositions; release
A. Unless found incompetent to stand trial pursuant to section 13‑4510, a person being evaluated on an inpatient basis in an evaluation agency shall be released if, in the opinion of the medical director of the agency, further evaluation is not appropriate unless the person makes application for further care and treatment on a voluntary basis.
B. If it is determined upon an evaluation of the patient's condition that he the patient is, as a result of a mental disorder, a danger to self or to others, or has a persistent or acute disability or a grave disability, the medical director in charge of the agency which that provided the evaluation shall, unless the person makes application for further care and treatment on a voluntary basis, prepare, sign and file a petition for court‑ordered treatment unless the county attorney performs the functions of preparing, signing or filing the petition as provided in subsection C of this section.
C. The agency may contact the county attorney to obtain his assistance in preparing the petition for court‑ordered treatment, and the agency may request the advice and judgment of the county attorney in reaching a decision as to whether court‑ordered treatment is justified.
D. Unless found incompetent to stand trial pursuant to section 13‑4510 and to be dangerous pursuant to section 13‑4517, a person being evaluated on an inpatient basis in an evaluation agency shall be released within seventy‑two hours, excluding weekends and holidays, from the time that he is hospitalized pursuant to a court order for evaluation, unless the person makes application for further care and treatment on a voluntary basis or unless a petition for court‑ordered treatment has been filed pursuant to subsection B of this section.
E. If a person has been found incompetent to stand trial pursuant to section 13‑4510, the medical director of an evaluation agency shall give immediate notice to the criminal court of the director's intention to release the person under this section. The criminal court shall order the person returned to custody pending the court's disposition of the person pursuant to section 13‑4517.
E. F. The department of health services may conduct jointly with a school district, directly or indirectly, an educational evaluation pursuant to sections 15‑765 and 15‑766 for nonadjudicated youth. The evaluation information may be shared by and among authorized personnel employed by the department of health services and the department of education, or authorized personnel from the local education agency, for purposes of ensuring the provision of special education and related services as required by the individuals with disabilities education act (20 United States Code sections 1400 through 1415).
Sec. 15. Section 36-533, Arizona Revised Statutes, is amended to read:
36-533. Petition for treatment
A. The petition for court‑ordered treatment shall allege:
1. That the patient is in need of a period of treatment because the patient, as a result of mental disorder, is a danger to self or to others, or has a persistent or acute disability or a grave disability.
2. The treatment alternatives that are appropriate or available.
3. That the patient is unwilling to accept or incapable of accepting treatment voluntarily.
B. The petition shall be accompanied by the affidavits of the two physicians who participated in the evaluation and by the affidavit of the applicant for the evaluation, if any. The affidavits of the physicians shall describe in detail the behavior that indicates that the person, as a result of mental disorder, is a danger to self or to others, or has a persistent or acute disability or a grave disability and shall be based on the physician's observations of the patient and the physician's study of information about the patient. A summary of the facts that support the allegations of the petition shall be included. The affidavit shall also include any of the results of the physical examination of the patient if relevant to the patient's psychiatric condition.
C. The petition shall request the court to issue an order requiring the person to undergo a period of treatment. The petition shall set forth any criminal history of the person, including whether the person has been found incompetent to stand trial pursuant to section 13‑4510 and whether the criminal court has made a determination that the person is dangerous pursuant to section 13-4517.
D. In cases of grave disability, the petition shall also include:
1. A statement that in the opinion of the petitioner the person with a grave disability does or does not require guardianship or conservatorship, or both, under title 14 and the reasons on which the statement is based.
2. A request that the court order an independent investigation and report for the court if in the opinion of the petitioner the person does require guardianship or conservatorship, or both.
3. A statement that in the opinion of the petitioner the person with a grave disability does or does not require temporary guardianship or conservatorship, or both, and the reasons on which the statement is based.
4. A request that the court appoint a temporary guardian or conservator, or both, if in the opinion of the petitioner the person does require temporary guardianship or conservatorship, or both.
E. A copy of the petition in cases of grave disability shall be mailed to the public fiduciary in the county of the patient's residence or in which the patient was found before evaluation and to any person nominated as guardian or conservator.
F. A copy of all petitions shall be mailed to the superintendent of the Arizona state hospital.
Sec. 16. Section 36-534, Arizona Revised Statutes, is amended to read:
36-534. Change to voluntary status; discharge
If, after a petition for court‑ordered treatment has been filed and prior to the hearing, the medical director of the agency finds that it is more appropriate to discharge the patient or to admit the proposed patient on a voluntary basis, the medical director shall, after receiving approval from the court, shall either discharge the patient or admit the patient for further treatment on a voluntary basis. This section does not apply to a patient who has been found incompetent to stand trial pursuant to section 13‑4510.
Sec. 17. Section 36-540, Arizona Revised Statutes, is amended to read:
36-540. Court options
A. If the court finds by clear and convincing evidence that the proposed patient, as a result of mental disorder, is a danger to self, is a danger to others, has a persistent or acute disability or a grave disability and is in need of treatment, and is either unwilling or unable to accept voluntary treatment, the court shall order the patient to undergo one of the following:
1. Treatment in a program of outpatient treatment.
2. Treatment in a program consisting of combined inpatient and outpatient treatment.
3. Inpatient treatment in a mental health treatment agency, in a hospital operated by or under contract with the United States department of veterans affairs to provide treatment to eligible veterans pursuant to article 9 of this chapter, in the state hospital or in a private hospital, if the private hospital agrees, subject to the limitations of section 36‑541.
B. The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive treatment alternative available unless the patient has been found by the criminal court to be dangerous pursuant to section 13‑4517.
C. The court may order the proposed patient to undergo outpatient or combined inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2 of this section if the court:
1. Determines that all of the following apply:
(a) The patient does not require continuous inpatient hospitalization.
(b) The patient will be more appropriately treated in an outpatient treatment program or in a combined inpatient and outpatient treatment program.
(c) The patient will follow a prescribed outpatient treatment plan.
(d) The patient is dangerous pursuant to section 13‑4517 or will not likely become dangerous or suffer more serious physical harm or serious illness or further deterioration if the patient follows a prescribed outpatient treatment plan.
2. Is presented with and approves a written treatment plan that conforms with the requirements of section 36‑540.01, subsection B. If the treatment plan presented to the court pursuant to this subsection provides for supervision of the patient under court order by a mental health agency that is other than the mental health agency that petitioned or requested the county attorney to petition the court for treatment pursuant to section 36‑531, the treatment plan must be approved by the medical director of the mental health agency that will supervise the treatment pursuant to subsection E F of this section.
D. An order to receive treatment pursuant to subsection A, paragraph 1 or 2 of this section shall not exceed three hundred sixty‑five days. The period of inpatient treatment under a combined treatment order pursuant to subsection A, paragraph 2 of this section shall not exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F G of this section.
E. If the patient has been found to be dangerous pursuant to section 13‑4517, the court may order treatment for up to six years. After the first two years and every two years thereafter, the patient may request release from treatment. The court shall notify the county attorney and set a hearing to determine whether the defendant is no longer dangerous or is no longer in need of treatment. The hearing shall be conducted pursuant to section 36‑546.
E. F. If the court enters an order for treatment pursuant to subsection A, paragraph 1 or 2 of this section, all of the following apply:
1. The court shall designate the medical director of the mental health treatment agency that will supervise and administer the patient's treatment program.
2. The medical director shall not use the services of any person, agency or organization to supervise a patient's outpatient treatment program unless the person, agency or organization has agreed to provide these services in the individual patient's case and unless the department has determined that the person, agency or organization is capable and competent to do so.
3. The person, agency or organization assigned to supervise an outpatient treatment program or the outpatient portion of a combined treatment program shall be notified at least three days before a referral. The medical director making the referral and the person, agency or organization assigned to supervise the treatment program shall share relevant information about the patient to provide continuity of treatment.
4. During any period of outpatient treatment under subsection A, paragraph 2 of this section, if the court, on its own motion or on motion by the medical director of the patient's outpatient mental health treatment facility, determines that the patient is not complying with the terms of the order or that the outpatient treatment plan is no longer appropriate and the patient needs inpatient treatment, the court, without a hearing and based on the court record, the patient's medical record, the affidavits and recommendations of the medical director, and the advice of staff and physicians or the psychiatric and mental health nurse practitioner familiar with the treatment of the patient, may enter an order amending its original order. The amended order may alter the outpatient treatment plan or order the patient to inpatient treatment pursuant to subsection A, paragraph 3 of this section. The amended order shall not increase the total period of commitment originally ordered by the court or, when added to the period of inpatient treatment provided by the original order and any other amended orders, exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F G of this section. If the patient refuses to comply with an amended order for inpatient treatment, the court on its own motion or on the request of the medical director may authorize and direct a peace officer, on the request of the medical director, to take the patient into protective custody and transport the patient to the agency for inpatient treatment. Any authorization, directive or order issued to a peace officer to take custody of the patient shall include the patient's criminal history and the names and telephone numbers of the patient's case manager, guardian, spouse, next of kin or significant other persons, as applicable. When reporting to or being returned to a treatment agency for inpatient treatment pursuant to an amended order, the patient shall be informed of the patient's right to judicial review and the patient's right to consult with counsel pursuant to section 36‑546.
5. During any period of outpatient treatment under subsection A, paragraph 2 of this section, if the medical director of the outpatient treatment facility in charge of the patient's care determines, in concert with the medical director of an inpatient mental health treatment facility who has agreed to accept the patient, that the patient is in need of immediate acute inpatient psychiatric care because of behavior that is dangerous to self or to others, the medical director of the outpatient treatment facility may order a peace officer to apprehend and transport the patient to the inpatient treatment facility pending a court determination on an amended order under paragraph 4 of this subsection. The patient may be detained and treated at the inpatient treatment facility for a period of no more than forty‑eight hours, exclusive of weekends and holidays, from the time that the patient is taken to the inpatient treatment facility. The medical director of the outpatient treatment facility shall file the motion for an amended court order requesting inpatient treatment no later than the next working day following the patient being taken to the inpatient treatment facility. Any period of detention within the inpatient treatment facility pending issuance of an amended order shall not increase the total period of commitment originally ordered by the court or, when added to the period of inpatient treatment provided by the original order and any other amended orders, exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F G of this section. If a patient is ordered to undergo inpatient treatment pursuant to an amended order, the medical director of the outpatient treatment facility shall inform the patient of the patient's right to judicial review and to consult with an attorney pursuant to section 36‑546.
F. G. Unless the patient has been found to be dangerous pursuant to section 13‑4517, the maximum periods of inpatient treatment that the court may order, subject to the limitations of section 36‑541, are as follows:
1. Ninety days for a person found to be a danger to self.
2. One hundred eighty days for a person found to be a danger to others.
3. One hundred eighty days for a person found to have a persistent or acute disability.
4. Three hundred sixty‑five days for a person found to have a grave disability.
H. The court may order an assessment to be conducted to determine the patient's eligibility for private insurance or public benefits that may be applied to the expenses of the defendant's medically necessary maintenance and treatment, including services pursuant to chapter 29 of this title, state‑only behavioral health services, title XVIII and the medicare part D prescription drug benefit, supplemental security income and supplemental security disability income.
G. I. If, on finding that the patient meets the criteria for court‑ordered treatment pursuant to subsection A of this section, the court also finds that there is reasonable cause to believe that the patient is an incapacitated person as defined in section 14‑5101 or is a person in need of protection pursuant to section 14‑5401 and that the patient is or may be in need of guardianship or conservatorship, or both, the court may order an investigation concerning the need for a guardian or conservator, or both, and may appoint a suitable person or agency to conduct the investigation. The appointee may include a court appointed guardian ad litem, an investigator appointed 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 of 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 who should be conservator, or both, and a report of the findings and reasons for the recommendation. If the investigation and report so indicate, the court shall order the appropriate person to submit a petition to become the guardian or conservator, or both, of the patient.
H. J. In any proceeding for court‑ordered treatment in which the petition alleges that the patient is in need of a guardian or conservator and states the grounds for that allegation, the court may appoint an emergency temporary guardian or conservator, or both, for a specific purpose or purposes identified in its order and for a specific period of time not to exceed thirty days if the court finds that all of the following are true:
1. The patient meets the criteria for court-ordered treatment pursuant to subsection A of this section.
2. There is reasonable cause to believe that the patient is an incapacitated person as defined in section 14‑5101 or is in need of protection pursuant to section 14‑5401, paragraph 2.
3. The patient does not have a guardian or conservator and the welfare of the patient requires immediate action to protect the patient or the ward's property.
4. The conditions prescribed pursuant to section 14‑5310, subsection B or section 14‑5401.01, subsection B have been met.
I. K. The court may appoint as a temporary guardian or conservator pursuant to subsection H J of this section a suitable person or the public fiduciary if there is no person qualified and willing to act in that capacity. The court shall issue an order for an investigation as prescribed pursuant to subsection G I of this section and, unless the patient is represented by independent counsel, the court shall appoint an attorney to represent the patient in further proceedings regarding the appointment of a guardian or conservator. The court shall schedule a further hearing within fourteen days on the appropriate court calendar of a court that has authority over guardianship or conservatorship matters pursuant to this title to consider the continued need for an emergency temporary guardian or conservator and the appropriateness of the temporary guardian or conservator appointed, and shall order the appointed guardian or conservator to give notice to persons entitled to notice pursuant to section 14‑5309, subsection A or section 14‑5405, subsection A. The court shall authorize certified letters of temporary emergency guardianship or conservatorship to be issued on presentation of a copy of the court's order. If a temporary emergency conservator other than the public fiduciary is appointed pursuant to this subsection, the court shall order that the use of the money and property of the patient by the conservator is restricted and not to be sold, used, transferred or encumbered, except that the court may authorize the conservator to use money or property of the patient specifically identified as needed to pay an expense to provide for the care, treatment or welfare of the patient pending further hearing. This subsection and subsection H J of this section do not:
1. Prevent the evaluation or treatment agency from seeking guardianship and conservatorship in any other manner allowed by law at any time during the period of court‑ordered evaluation and treatment.
2. Relieve the evaluation or treatment agency from its obligations concerning the suspected abuse of a vulnerable adult pursuant to title 46, chapter 4.
J. L. If, on finding that a patient meets the criteria for court‑ordered treatment pursuant to subsection A of this section, the court also learns that the patient has a guardian appointed under title 14, the court with notice may impose on the existing guardian additional duties pursuant to section 14‑5312.01. If the court imposes additional duties on an existing guardian as prescribed in this subsection, the court may determine that the patient needs to continue treatment under a court order for treatment and may issue the order or determine that the patient's needs can be adequately met by the guardian with the additional duties pursuant to section 14‑5312.01 and decline to issue the court order for treatment. If at any time after the issuance of a court order for treatment the court finds that the patient's needs can be adequately met by the guardian with the additional duties pursuant to section 14‑5312.01 and that a court order for treatment is no longer necessary to assure compliance with necessary treatment, the court may terminate the court order for treatment. If there is a court order for treatment and a guardianship with additional mental health authority pursuant to section 14‑5312.01 existing at the same time, the treatment and placement decisions made by the treatment agency assigned by the court to supervise and administer the patient's treatment program pursuant to the court order for treatment are controlling unless the court orders otherwise.
K. M. The court shall file a report as part of the court record on its findings of alternatives for treatment.
L. N. Treatment shall not include psychosurgery, lobotomy or any other brain surgery without specific informed consent of the patient or the patient's legal guardian and an order of the superior court in the county in which the treatment is proposed, approving with specificity the use of the treatment.
M. O. The medical director or any person, agency or organization used by the medical director to supervise the terms of an outpatient treatment plan is not civilly liable for any acts committed by a patient while on outpatient treatment if the medical director, person, agency or organization has in good faith followed the requirements of this section.
N. P. A peace officer who in good faith apprehends and transports a patient to an inpatient treatment facility on the order of the medical director of the outpatient treatment facility pursuant to subsection E F, paragraph 5 of this section is not subject to civil liability.
O. Q. If a person has been found, as a result of a mental disorder, to constitute a danger to self or others or to have a persistent or acute disability or a grave disability and the court enters an order for treatment pursuant to subsection A of this section, the court shall transmit the person's name, sex, date of birth, social security number, if available, and date of the order for treatment to the supreme court. The supreme court shall transmit the information to the department of public safety to comply with the requirements of title 13, chapter 31 and title 32, chapter 26. The department of public safety shall transmit the information to the national instant criminal background check system. The superior court may access the information of a person who is ordered into treatment to enforce or facilitate a treatment order.
P. R. On request, the clerk of the court shall provide certified copies of the commitment order to a law enforcement or prosecuting agency that is investigating or prosecuting a prohibited possessor as defined in section 13‑3101.
Sec. 18. Section 36-540.01, Arizona Revised Statutes, is amended to read:
36-540.01. Conditional outpatient treatment
A. The medical director may issue an order for conditional outpatient treatment for a patient ordered to undergo treatment pursuant to section 36‑540 if, after consultation with staff familiar with the patient's case history, the medical director determines with a reasonable degree of medical probability that all of the following apply:
1. The patient no longer requires continuous inpatient hospitalization.
2. The patient will be more appropriately treated in an outpatient treatment program.
3. The patient will follow a prescribed outpatient treatment plan.
4. The patient will not likely become dangerous, suffer more serious physical harm or serious illness or further deteriorate if the patient follows a prescribed outpatient treatment plan.
B. The order for conditional outpatient treatment issued by the medical director shall include a written outpatient treatment plan prepared by staff familiar with the patient's case history and approved by the medical director. The plan shall include all of the following:
1. A statement of the patient's requirements, if any, for supervision, medication and assistance in obtaining basic needs such as employment, food, clothing or shelter.
2. The address of the residence where the patient is to live and the name of the person in charge of the residence, if any.
3. The name and address of any person, agency or organization assigned to supervise an outpatient treatment plan or care for the patient, and the extent of authority of the person, agency or organization in carrying out the terms of the plan.
4. The conditions for continued outpatient treatment, which may require periodic reporting, continuation of medication and submission to testing, and may restrict travel, consumption of spirituous liquor and drugs, associations with others and incurrence of debts and obligations or such other reasonable conditions as the medical director may specify.
C. Before release for conditional outpatient treatment, the patient shall be provided with copies and full explanations of the medical director's order and the treatment plan. If, after full explanation, the patient objects to the plan or any part of it, the objection and reasons for the objection shall be noted in the patient's record. The medical director's order and treatment plan shall be filed in the patient's medical file and shall also be filed with the court.
D. The period for which conditional outpatient treatment may be ordered may not exceed the remainder of the period of court-ordered treatment.
E. Before the release of a patient for outpatient treatment, the medical director shall give notice pursuant to section 36‑541.01, subsection B and a motion for a determination by the court as to whether the standard for conditional release of the patient has been met may be made by the persons and in the manner provided for in section 36‑541.01, subsection H. Before the release of a person found to be a danger to self, or others or found to be a person with have a persistent or acute disability or a grave disability for outpatient treatment, the medical director shall give notice to the court that ordered the patient to undergo treatment. If criminal charges against a patient involving death or serious physical injury or a violation of title 13, chapter 14 a serious offense or violent or aggravated felony as defined in section 13‑706 or an offense under title 13, chapter 14 or 35.1 are dismissed pursuant to section 13‑4517, the medical director shall notify 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. The medical director shall provide this notice by mail at least five days before the anticipated date of the expiration, termination or discharge.
F. The medical director shall require periodic reports concerning the condition of patients on conditional outpatient treatment from any person, agency or organization assigned to supervise an outpatient treatment plan. The medical director shall require these reports at intervals not to exceed thirty days.
G. The medical director shall review the condition of a patient on conditional outpatient treatment at least once every thirty days and enter the findings in writing in the patient's file. In conducting the review, the medical director shall consider all reports and information received and may require the patient to report for further evaluation.
H. The medical director may amend any part of the outpatient treatment plan during the course of conditional outpatient treatment. If the plan is amended, the medical director shall issue a new order including the amended outpatient treatment plan. The new order and amended outpatient treatment plan shall be filed in the patient's medical file. Copies of the new order and outpatient treatment plan shall be immediately provided to the patient and to any person, agency or organization assigned to supervise an outpatient treatment plan. Copies of the new order and outpatient treatment plan shall be immediately filed with the court that issued the treatment order as well as the criminal court and the county attorney if the patient has been found incompetent to stand trial pursuant to section 13‑4510.
I. The medical director may rescind an order for conditional outpatient treatment and order the patient to return to a mental health treatment agency at any time during the period of court ordered treatment if, in the medical director's judgment, the patient has failed to comply with a term of the outpatient treatment plan or if, for any reason, the medical director determines that the patient needs inpatient treatment or that conditional outpatient treatment is no longer appropriate. The medical director shall give notice to the court that issued the treatment order as well as the criminal court and the county attorney if the patient has been found incompetent to stand trial pursuant to section 13‑4510.
J. If the medical director rescinds an order for conditional outpatient treatment and the patient is returned to a mental health treatment agency for inpatient treatment, the patient shall be informed of the patient's right to judicial review and right to consult with counsel pursuant to section 36‑546.
K. If the medical director rescinds an order for conditional outpatient treatment and orders the patient to return to a mental health treatment agency, the medical director may request, or a court may order, a peace officer or a designated officer or employee of the treatment agency to take the patient into custody for immediate delivery to the agency pursuant to section 36‑544.
L. The medical director is not civilly liable for any act committed by a patient while on conditional outpatient treatment if the medical director has in good faith followed the requirements of this section.
M. Unless the patient has been found to be dangerous pursuant to section 13‑4517, this section does not prevent the medical director from authorizing a patient ordered to undergo treatment pursuant to section 36‑540 as a danger to self, or a danger to others, or a patient with a persistent or acute disability or a grave disability to leave the treatment agency for periods of no more than five days under the care, custody and control of a spouse, relative or other responsible person if the medical director determines that the patient will not become dangerous or suffer serious physical harm or illness during that time. If the patient has been found to be dangerous pursuant to section 13‑4517, the medical director shall obtain approval of the criminal court before authorizing the patient to leave the treatment agency.
N. Unless the patient has been found to be dangerous pursuant to section 13‑4517, the medical director may authorize a patient who is civilly committed pursuant to section 36‑540 to leave the state hospital grounds unaccompanied if the leave is part of an inpatient individualized treatment and discharge plan and the medical director determines that the patient will not become dangerous or suffer serious physical harm or illness during that time. If the patient has been found to be dangerous pursuant to section 13‑4517, any individualized treatment plan that includes unaccompanied leave shall be approved by the criminal court and notice of the plan shall be given to the county attorney before the treatment plan becomes effective.
Sec. 19. Title 36, chapter 5, article 5, Arizona Revised Statutes, is amended by adding section 36-540.03, to read:
36-540.03. Outpatient treatment; noncompliance; rescission
A. At any time a patient is noncompliant with any condition of outpatient treatment, including periodic reporting, continuation of medication, submission to testing, travel restrictions, residency requirements, consumption of spirituous liquor or drugs or any other condition imposed by court order or the medical director, immediate notice shall be provided to the court that entered the treatment order. If the patient has been found to be dangerous pursuant to section 13‑4517, immediate notice shall be provided to the criminal court and the county attorney.
B. The court, including the criminal court, may enter any order sufficient to maintain the patient's health, safety and treatment and to protect the public, including rescinding the outpatient treatment order. The court may enter an order directing a peace officer to take the person into custody and return the patient to the inpatient treatment facility. The order shall include the patient's criminal history, whether the patient should be considered dangerous and the names and telephone numbers of the patient's case manager, guardian, spouse, next of kin or significant other persons, as applicable.
C. If the court rescinds an order for outpatient treatment pursuant to this section, the patient shall be informed of the patient's right to judicial review and right to consult with counsel pursuant to section 36‑546.
Sec. 20. Section 36-541.01, Arizona Revised Statutes, is amended to read:
36-541.01. Release or discharge from treatment before expiration of period ordered by court; notification of intent to release or discharge; hearing
A. 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 been found to be incompetent to stand trial pursuant to section 13‑4510 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.
B. Before the release or discharge of a patient ordered to undergo treatment, the medical director of the mental health treatment agency shall notify the following of the medical director's intention 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.
3. Any person found by the court to have a legitimate reason for receiving notice.
C. If criminal charges against a patient involving death or serious physical injury or a violation of a serious offense or violent or aggravated felony as defined in section 13‑706 or an offense under title 13, chapter 14 or 35.1 are dismissed pursuant to section 13‑4517, the medical director shall notify the criminal 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. The medical director shall provide this notice by mail at least five seven days before the anticipated date of the expiration, termination or discharge.
D. If the director of the mental health treatment agency is unable to determine, based on the information submitted pursuant to subsection E of this section, that a person who has filed a demand for notice is a victim the 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 F of this section.
E. A demand for notice by a relative or victim, and a petition for notice by other persons, shall be on a form prescribed by the department and shall include the following information:
1. The full name of the person to receive notice.
2. The address to which notice is to be mailed.
3. The telephone number of the person to receive notice.
4. The relationship to the patient, if any, or the reasons why the person believes the person has a legitimate reason to receive notice.
5. A statement that the person will advise the 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 been found to be dangerous pursuant to section 13‑4517.
7. The mental health number assigned to the case by the superior court.
F. If the court receives a demand for notice by a relative or victim, 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 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 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.
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 shall be placed in the mail, postage prepaid and addressed to the court and to each person for whom notice has been ordered, at least ten days before the date of intended release or discharge except notice shall be sent to the prosecuting agency at least five seven days before the date of intended release or discharge. For purposes of computing the notice requirement, the day of mailing shall not be counted.
H. 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 longer than three weeks after the anticipated date of release pursuant to subsection 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.
I. If a motion has not been made pursuant to subsection H 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.
J. The medical director of the mental health treatment agency shall not be held civilly liable for any acts committed by a patient released before the expiration of the period of court‑ordered treatment if the medical director has in good faith followed the requirements of this section.
Sec. 21. Section 36-542, Arizona Revised Statutes, is amended to read:
36-542. Discharge of patient at expiration of period ordered by court; change to voluntary status; relief from civil liability
A. Subject to section 36‑540, subsection E, a patient ordered by a court to undergo treatment pursuant to this article shall be discharged from treatment at the expiration of the period of treatment ordered unless one of the following occurs:
1. The person accepts voluntary treatment at the mental health treatment agency.
2. Before the discharge date, a new petition is filed in the county in which the patient is being treated. The proceedings shall then be governed by this article. The costs of the proceedings shall be a charge against the county in which the patient resided or was found prior to hospitalization.
B. If a patient to be discharged is under guardianship, the medical director of the mental health treatment agency shall notify the guardian ten days before discharge.
C. The medical director is not civilly liable for any acts committed by a discharged patient if the medical director has in good faith followed the requirements of this article.
Sec. 22. Section 36-543, Arizona Revised Statutes, is amended to read:
36-543. Release from treatment of a patient with a grave disability or a patient with a persistent or acute disability; notice; annual review; court order for continued treatment
A. A patient found to have a grave disability or a persistent or acute disability and ordered to undergo treatment 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 agency is no longer required. The patient may agree to continue treatment voluntarily. If the patient is to be released, the medical director shall arrange for an appropriate alternative placement. If the patient has been found to be dangerous pursuant to section 13‑4517, the medical director shall immediately provide notice of the intent to release the patient to the criminal court. The court may enter any orders to sufficiently maintain the patient's health, safety and treatment and to protect the public. The medical director shall also provide notice to the prosecuting agency at least seven days before the anticipated date of the patient's release.
B. If a patient to be released from inpatient treatment is under guardianship, the medical director of the mental health treatment agency shall notify the guardian and any relevant regional behavioral health authority ten days before the intended release date that the ward no longer requires the level of care offered by the 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.
C. 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.
D. 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 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 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.
E. 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.
F. After conducting the annual review as prescribed in this section, if the medical director 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 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 shall mail a copy of the application to the patient's guardian.
G. 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 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 subsection E 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.
H. If a hearing is held pursuant to subsection G 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.
I. After a hearing held pursuant to subsection G 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.
J. The deputy 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 deputy director, with the approval of the director, shall adopt rules needed to operate this program.
Sec. 23. Section 36-544, Arizona Revised Statutes, is amended to read:
36-544. Unauthorized absences; violation; classification; tolling period; hearing
A. When any patient who is being evaluated or treated is absent without proper authorization from an evaluation agency or a mental health treatment agency, or when an order for outpatient treatment is rescinded, any peace officer shall, upon oral or written request of the medical director of the agency and without the necessity of a warrant or court order, or any officer or employee of the agency who has been previously designated in writing by the medical director of the agency to perform such duties may, take into custody and deliver such patient to the agency. Such officers and employees of the agency have the powers and duties of peace officers so far as is necessary to carry out the provisions of this section. If the patient has not returned voluntarily or involuntarily within seven days after the beginning of the unauthorized absence, the medical director shall request a peace officer to take the patient into custody and deliver the patient to the agency. If the patient has been found incompetent to stand trial pursuant to section 13-4510, the medical director shall notify the criminal court of the patient's absence as soon as the agency knows or should have reasonably known of the patient's unauthorized absence. The criminal court may enter any order necessary to take the patient into custody, return the patient to the agency and protect the public. Any order directing a peace officer to take the patient into custody shall include the patient's criminal history and the names and telephone numbers of the patient's case manager, guardian, spouse, next of kin or significant other persons, as applicable.
B. Any person who intentionally assists any patient being evaluated or treated in an agency to be absent from the agency without proper authorization, or who intentionally assists a patient whom he knows to be absent without proper authorization or whom he knows to be a patient whose order for outpatient treatment has been rescinded and who has been ordered to return to the agency, or to resist being returned to the agency after such absence is guilty of a class 2 misdemeanor.
C. The period of court‑ordered treatment ceases to run during the unauthorized absence of time the patient is absent without authorization from the jurisdiction treatment agency or from any required supervision or is otherwise noncompliant with treatment orders and resumes running only on the patient's voluntary or involuntary return to the treatment agency or compliance with treatment orders. The patient shall remain enrolled with the mental health treatment agency, notwithstanding the patient's unauthorized absence, until the expiration of the treatment order or unless otherwise ordered by the court.
D. A patient who remains on unauthorized absence status continuously for at least ninety days may petition the court on his return to the treatment agency for a hearing to determine his current mental status and his present need for treatment. The court shall order a hearing if requested by the patient, his legal guardian or an interested party. The hearing shall be held within seventy‑two hours after the request. If the patient has been found incompetent to stand trial pursuant to section 13‑4510, the criminal court and the county attorney shall also receive notice. The criminal court may elect to conduct the hearing, and the county attorney may present evidence and argument.
E. Subsections C and Subsection D of this section shall apply applies only to inpatient treatment pursuant to section 36‑540, subsection A, paragraphs 2 and 3.
Sec. 24. Section 36-546, Arizona Revised Statutes, is amended to read:
36-546. 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, and except for patients who are subject to a treatment order pursuant to section 36‑540, subsection E, 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.
B. Except for a patient who is subject to a treatment order pursuant to section 36‑540, subsection E, the patient shall be informed of the patient's right to judicial review by the medical director of the agency and the patient's right to consult with counsel 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 F, paragraphs 4 and 5 and section 36‑540.01, subsection J 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. Judicial review shall be in the superior court in the county in which the patient is being treated. That court may review the additional material presented and enter its order without necessity of further hearing.
E. The reviewing court may order a further hearing on the affidavit of the attorney for the patient setting forth the need for further evidentiary hearing and the reasons why the hearing is necessary before the time set for the release 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. 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. The patient's attorney shall fulfill all of the following minimal duties:
1. Within twenty‑four hours of 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. An attorney who does not fulfill the duties prescribed by subsection H of this section is subject to contempt of court.
Sec. 25. Section 36-3701, Arizona Revised Statutes, is amended to read:
36-3701. Definitions
In this article, unless the context otherwise requires:
1. "Agency" means any agency that is authorized to direct the release of a person who is serving a sentence or term of confinement or who is receiving treatment, including a state or federal prison, a county jail and the Arizona state hospital or other mental health treatment agency, and the superior court having jurisdiction over a defendant who is being evaluated or who has been found to be incompetent to stand trial pursuant to section 13‑4510.
2. "Competent professional" means a person who is:
(a) Familiar with the state's sexually violent persons statutes and sexual offender treatment programs available in this state.
(b) Approved by the superior court as meeting court approved guidelines.
3. "Conviction" includes a finding of guilt at any time for a sexually violent offense or an order of the juvenile court adjudicating the person delinquent for any sexually violent offense.
4. "Less restrictive alternative" means court ordered treatment in a setting that is less restrictive than total confinement and that is conducted in a setting approved by the superintendent of the state hospital.
5. "Mental disorder" means a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder and conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others.
6. "Sexually violent offense" means any of the following:
(a) Indecent exposure to a person who is under fifteen years of age pursuant to section 13‑1402, public sexual indecency to a minor pursuant to section 13‑1403, sexual conduct with a minor pursuant to section 13‑1405, sexual assault pursuant to section 13‑1406, molestation of a child pursuant to section 13‑1410, continuous sexual abuse of a child pursuant to section 13‑1417 or sexual assault of a spouse if the offense was committed before August 12, 2005.
(b) Second degree murder pursuant to section 13‑1104, first degree murder pursuant to section 13‑1105, assault pursuant to section 13‑1203, aggravated assault pursuant to section 13‑1204, unlawful imprisonment pursuant to section 13‑1303, kidnapping pursuant to section 13‑1304 or burglary in the first degree pursuant to section 13‑1508 if the court at the time of sentencing or civil commitment proceedings determines beyond a reasonable doubt that the act was sexually motivated pursuant to section 13‑118.
(c) An attempt, a solicitation, a facilitation or a conspiracy to commit an offense listed in subdivision (a) or (b) of this paragraph.
(d) An act committed in another jurisdiction that if committed in this state would be a sexually violent offense listed in subdivision (a), (b) or (c) of this paragraph.
(e) A conviction for a felony offense that was in effect before September 1, 1978 and that if committed on or after September 1, 1978 would be comparable to a sexually violent offense listed in subdivision (a) or (b) of this paragraph.
7. "Sexually violent person" means a person to whom both of the following apply:
(a) Has ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial.
(b) Has a mental disorder that makes the person likely to engage in acts of sexual violence.
