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ANALYSIS OF ARIZONA'S ASSISTED TREATMENT LAWS
STATUTORY COMPILATION USED: ALIS-Arizona Revised Statutes Online
Which was Current Through the 43rd Legislature, Second
Regular Session, May 22, 1998
Analysis Completed: 10/98, RME
1. When not the subject of a pending
commitment action, what are the prerequisites for an individual to receive voluntarily
treatment?
36-518 (A)
"…any person eighteen years of age or older who manifests the capacity to give
and gives informed consent may be hospitalized for evaluation, care and treatment by
voluntarily making written application on a prescribed form. The agency to which the
person applies may accept and admit the person if the medical director of the agency or
the admitting officer believes that the person needs evaluation or will benefit from care
and treatment of a mental disorder or other personality disorder or emotional condition in
the agency."
2. Conditions necessary
for emergency treatment/observation.
There are two, independent conditions that serve to initiate
emergency treatment (1) an application for emergency admission and (2) a peace
officer’s probable cause to believe that an individual is likely to be a danger to
self or others during the time necessary to complete the prepetition screening procedures.
The admitting officer must examine the individual upon presentation and then find probable
cause to believe that the individual is likely to be a danger to self or others during the
time necessary to complete the prepetition screening procedures.
36-524 "A written
application for emergency admission shall be made to an evaluation agency before a person
may be hospitalized in the agency…by a person with knowledge of the facts requiring
emergency admission. The applicant may be a relative or friend of the person, a peace
officer, the admitting officer or another responsible person."
36-525 (B) "…a peace officer may take into custody
any individual he has probable cause to believe, based on his own observations, is, as a
result of mental disorder, a danger to self or others, and that during the time necessary
to complete the prepetition screening procedures…the person is likely without
immediate hospitalization to suffer serious physical harm or serious illness or to inflict
serious physical harm on another person."
36-526 (A) "Upon presentation of the person for
emergency admission, an admitting officer of an evaluation agency shall perform an
examination of the person and may admit the person to the agency as an emergency patient
if the admitting officer finds, as a result of his examination and investigation of the
application for emergency admission, that there is reasonable cause to believe that the
person, as a result of a mental disorder, is a danger to self or others, and that during
the time necessary to complete the prepetition screening procedures set forth in sections
36-520 and 36-521 the person is likely without immediate hospitalization to suffer serious
physical harm or serious illness or to inflict serious physical harm on another
person."
3. Is mental illness/disorder defined?
36-501 (22)
"’Mental disorder’ means a substantial disorder of the person's emotional
processes, thought, cognition or memory. Mental disorder is distinguished from:
(a) Conditions which are primarily those of drug abuse, alcoholism
or mental retardation, unless, in addition to one or more of these conditions, the person
has a mental disorder.
(b) The declining mental abilities that directly accompany impending
death.
(c) Character and personality disorders characterized by lifelong
and deeply ingrained antisocial behavior patterns, including sexual behaviors which are
abnormal and prohibited by statute unless the behavior results from a mental
disorder."
36-550 (4) " ‘Seriously mentally ill’ means
persons, who as a result of a mental disorder as defined in section 36-501 exhibit
emotional or behavioral functioning which is so impaired as to interfere substantially
with their capacity to remain in the community without supportive treatment or services of
a long-term or indefinite duration. In these persons mental disability is severe and
persistent, resulting in a long-term limitation of their functional capacities for primary
activities of daily living such as interpersonal relationships, homemaking, self-care,
employment and recreation."
4. Maximum duration of emergency
treatment/observation before a judicial hearing must be held.
36-527 (A) "twenty-four
hours excluding weekends and holidays…unless a petition for court-ordered evaluation
is filed."
36-535 (B) "The court shall either release the proposed
patient or order the hearing to be held within six days after the petition is filed,
unless the proposed patient, upon consultation with his attorney, determines that it would
be in his best interest to request a continuance which may be for a maximum of thirty
days."
5. Can a potential committee avoid a hearing
determination by opting to voluntarily undergo treatment and, if so, what is the minimum
time he or she must then spend in treatment?
Yes. A potential committee can avoid a hearing determination,
however, the medical director must receive court approval before admitting the patient for
voluntary treatment. No minimum treatment period is specified.
36-534 "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, either discharge the patient or admit the patient for
further treatment on a voluntary basis."
6. Are there any requirements that a potential
committee be capable of deciding to voluntarily undergo treatment?
36-518 (A) "any
person eighteen years of age or older who manifests the capacity to give and gives
informed consent may be hospitalized for evaluation, care and treatment by voluntarily
making written application on a prescribed form."
7. Who may petition for an individual to
receive assisted inpatient treatment?
a. There must be an evaluation prior to the petition for assisted
inpatient care. Any "responsible individual" may apply for a court-ordered
evaluation. The screening agency then provides a prepetition screening and, depending on
the outcome, prepares and files a petition for court-ordered evaluation. The county
attorney may prepare, sign, or file the petition if so ordered by the court.
36-520 (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, persistently or
acutely disabled, or gravely disabled and who is unwilling or unable to undergo a
voluntary evaluation."
b. The medical director of the screening agency, with
possible assistance from the county attorney, makes the petition for court-ordered
treatment.
36-531 (B) "If it
is determined upon an evaluation of the patient's condition that he is, as a result of a
mental disorder, a danger to self or to others, is persistently or acutely disabled or is
gravely disabled, the medical director in charge of the agency which 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."
36-531 (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."
8. Required elements of a petition.
Required elements for the application for court-ordered evaluation.
36-520 (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. The name, address and relationship of the person who is applying
for the evaluation.
4. A statement that the proposed patient is believed to be as a
result of a mental disorder a danger to self or to others, is persistently or acutely
disabled or is gravely disabled, and the facts on which this statement is based.
5. A statement that the applicant believes the proposed patient to
be in need of supervision, care and treatment and the facts on which this statement is
based."
Required elements for the petition for court-ordered treatment.
36-533 (A) "The petition for court-ordered treatment
shall allege:
1. That the patient is in need of a period of treatment because
he is, as a result of mental disorder, a danger to self or to others, is persistently or
acutely disabled or is gravely disabled.
2. The treatment alternatives which are
appropriate or available.
3. That the patient is unwilling to accept or incapable of accepting
treatment voluntarily."
36-533 (B) "The petition shall be
accompanied by the affidavits of the two physicians who conducted the examinations during
the evaluation period and by the affidavit of the applicant for the evaluation, if any.
The affidavits of the physicians shall describe in detail the behavior which indicates
that the person is, as a result of mental disorder, a danger to self or to others, is
persistently or acutely disabled or is gravely disabled and shall be based upon the
physician's examination of the patient and his study of information about the patient. A
summary of the facts which support the allegations of the petition shall be
included."
36-533 (D) In cases of grave disability the
petition shall also include a statement of whether guardianship or conservatorship is
required and, if so, a request that the court order an investigation on the issue.
9. Is there a penalty
for filing an unfounded petition?
Yes, but only if the person filing the petition knowingly
makes a false statement of material fact.
36-515 (A). Any person
acting in good faith upon either actual knowledge or reliable information who makes
application for evaluation or treatment of another person pursuant to this chapter is not
subject to civil or criminal liability for such act.
36-515 (B) Any person who knowingly makes a false statement
of a material fact with the intent to cause another to be confined under this chapter is
guilty of a class 1 misdemeanor.
10. Participation of other individuals in
assited treatment hearing (i.e. notice, a right to be heard or standing for family
members, legal guardians, doctors, etc.).
Not specified.
11. Length of initial term of assisted
inpatient treatment.
36-540 (D) "shall
not exceed three hundred sixty-five days..."
36-540 (F) "The maximum periods of inpatient treatment
which 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 be persistently or
acutely disabled.
4. Three hundred sixty-five days for a person found to be gravely
disabled."
36-501 (29) "’Persistently or acutely
disabled’ means a severe mental disorder that meets all the following criteria:
(a) If not treated has a substantial probability of causing the
person to suffer or continue to suffer severe and abnormal mental, emotional or physical
harm that significantly impairs judgment, reason, behavior or capacity to recognize
reality.
(b) Substantially impairs the person's capacity to make an informed
decision regarding treatment and this impairment causes the person to be incapable of
understanding and expressing an understanding of the advantages and disadvantages of
accepting treatment and understanding and expressing an understanding of the alternatives
to the particular treatment offered after the advantages, disadvantages and alternatives
are explained to that person.
(c) Has a reasonable prospect of being treatable by outpatient,
inpatient or combined inpatient and outpatient treatment."
36-501 (15) "‘Gravely disabled’ means a
condition evidenced by behavior in which a person, as a result of a mental disorder, is
likely to come to serious physical harm or serious illness because he is unable to provide
for his basic physical needs."
Comment: "Persistently or acutely disabled" is a
particularly nice standard.
12. Conditions necessary for judicially
ordered inpatient treatment (exact wording of key portions of applicable statute desired).
36-540 (A) "If the
court finds by clear and convincing evidence that the proposed patient is, as a result of
mental disorder, a danger to himself, is a danger to others, is persistently or acutely
disabled or is gravely disabled and in need of treatment, and is either unwilling or
unable to accept voluntary treatment…"
13. Evidentiary standard under which
eligibility for assited treatment is judged (two most common are "beyond a reasonable
doubt" and "clear and convincing evidence").
36-540 (A) "clear
and convincing evidence"
14. Is there a least restrictive treatment
requirement?
36-540 (B) "The
court shall order the least restrictive treatment alternative available."
15. Is there a confidentiality exception for
family members of committees and/or individuals undergoing emergency evaluations?
Yes, there is a confidentiality exception for family members and
legal guardians. Prior to releasing information, the treating professional must interview
the patient and determine that the release is in the patient’s best interests.
36-509 – A.
"All information and records obtained in the course of evaluation, examination or
treatment shall be kept confidential and not as public records, except as the requirements
of a hearing pursuant to this chapter may necessitate a different procedure. Information
and records may only be disclosed, pursuant to rules established by the department, to:
…
"2. Individuals to whom the patient has given consent to have
information disclosed.
"3. Persons legally representing the patient, and in such case,
the department's rules shall not delay complete disclosure.
"8. Family members actively participating in the patient's
care, treatment or supervision. An agency or nonagency treating professional may only
release information relating to the person's diagnosis, prognosis, need for
hospitalization, anticipated length of stay, discharge plan, medication, medication side
effects and short-term and long-term treatment goals…
"B. An agency or nonagency treating professional shall release
information pursuant to subsection A, paragraph 8 of this section only after the treating
professional or his designee interviews the person undergoing treatment or evaluation to
determine whether or not release is in that person's best interests…"
16. Are advance directives or durable powers
of attorney addressed and, if so, in what way?
Not specified in the mental health law.
17. Is there a separate proceeding necessary
to abrogate a committee’s right to refuse treatment?
No, the mental health law does not provide a separate proceeding for
involuntary medical treatment. If, however, treatment is to include psychosurgery,
lobotomy or any other brain surgery, then additional requirements must be met. See, 36-540 (K).
Comment: The "order for
treatment" appears to be a combined commitment and treatment order. The provisions
for an inpatient commitment order do not explicitly include medical treatment, however,
the provisions for an outpatient treatment order do include medical treatment. See, 36-540.01
"The plan shall include…medication…"
18. Does the treating hospital and/or
physician have discretion to release individuals before the end of their assisted
inpatient care periods?
36-541.01 (A) "A
patient ordered to undergo treatment pursuant to this article may be released from
treatment prior to 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, a danger to self, persistently or acutely
disabled or gravely disabled."
19. Individual(s) who may decide to
initiate new periods of assisted treatment.
The medical director, with possible help from the county attorney,
files the petition for court-ordered treatment. See Response 7(b).
Comment on all extended
treatment questions: Pursuant to 36-542 the entire process for assisted
treatment starts over once "a new petition is filed in the county in which the
patient is being treated. The proceedings shall then be governed by this article."
20. Type of forum that decides on need for
extended assisted treatment (normally either judicial or administrative).
A judicial forum decides on the need for extended treatment.
Comment on all extended
treatment questions: Pursuant to 36-542 the entire process for assisted
treatment starts over once "a new petition is filed in the county in which the
patient is being treated. The proceedings shall then be governed by this article."
21. Participation of other individuals in the
extension hearing (i.e. notice, a right to be heard and/or right to counsel for family
members, legal guardians, doctors, etc.).
Not specified.
22. Maximum length of subsequent assisted
inpatient treatment (and of any possible subsequent periods).
Same as the length of initial term of assisted inpatient care. See
Response 11.
Comment on all extended
treatment questions: Pursuant to 36-542 the entire process for assisted
treatment starts over once "a new petition is filed in the county in which the
patient is being treated. The proceedings shall then be governed by this article."
23. Alternative(s) to inpatient treatment
(i.e. conditional release, trial release, assisted outpatient treatment, etc.) and
conditions necessary for a court to order placement in alternative(s) (if more than one
form, specify for each).
36-540 (A) "If the
court finds…the court shall order him 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
veterans administration hospital pursuant to article 9 of this chapter, in the state
hospital or in a private hospital, if the private hospital agrees…"
Comment: The combined inpatient and outpatient treatment
alternative is unique.
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 he follows a prescribed
outpatient treatment plan.
Comment: This conditional outpatient treatment provision is
typically called "conditional release."
24. Maximum duration of alternative(s) to
assisted inpatient treatment.
36-540 (D) "An
order to receive treatment pursuant to subsection A, paragraph 1 [outpatient] or 2
[combined inpatient and outpatient] 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 [combined inpatient and outpatient] of this section
shall not exceed the maximum period allowed for an order for inpatient
treatment…" See Response 11.
36-540.01 (D) "The period for which conditional
outpatient treatment may be ordered may not exceed the remainder of the period of court
ordered treatment."
25. Procedure necessary to transfer patient
from outpatient to inpatient care.
36-540 (E)(4)
"During any period of outpatient treatment under subsection A, paragraph 2 of this
section, if the court, upon 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 upon the court
record, the patient's medical record, the affidavits and recommendations of the medical
director, and the advice of staff and physicians 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
of this section…When reporting to or being returned to a treatment agency for
inpatient treatment pursuant to an amended order, the patient shall be informed of his
right to judicial review and his right to consult with counsel pursuant to section
36-546."
Comment: This provision requires a court order, but not a
hearing, in order to transfer a patient from outpatient commitment to inpatient
commitment. The court decision is made based on the case file and records. This procedure
allows for expedient patient treatment. The procedure also is more cost and time effective
than having an additional full hearing.
36-540 (E)(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 himself or to others…The patient may be detained and
treated at the inpatient treatment facility for a period of no more than forty-eight
hours…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."
26. Describe any procedures for
conservatorship, guardianship, etc., which are applicable to the mentally ill.
General procedures for conservatorship and guardianship are outlined in:
36-540 (G) "If,
upon finding that the patient is gravely disabled, the court also finds that the evidence
indicates that the patient is or may be in need of guardianship or conservatorship, or
both, the court shall order an investigation…and shall appoint a suitable person or
agency to conduct the investigation. The appointee may include the mental health treatment
agency that is providing inpatient or outpatient treatment, a court appointed visitor 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. Such 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".
Specific procedures for guardianship of the "gravely
disabled" are outlined in 36-547, including:
36-547.04 (A) 3. "The guardian
shall seek care and treatment which offers the best opportunity for his ward to achieve a
maximum possible degree of rehabilitation and improvement of or recovery from mental
illness and disability.
4. In placing his ward the guardian shall seek alternatives to
hospitalization and shall give due regard to the first preference of allowing his ward to
live at home or with family or friends, and to the second preference of placement in an
agency as close to home or the home of a relative in an environment less restrictive than
a mental health treatment agency, and to the final preference of placement in a mental
health treatment agency."
36-547.04 (B) "To place his ward in a mental health
treatment agency, the guardian must, after notice and hearing and a finding that
alternative placement is not available, obtain an order from the court which appointed
him."
36-547.08 A guardianship appointment supersedes and
terminates previous orders and appointments.
27. Other (may include insights into
state’s mental health system, judicial interpretation of mental health code, or known
movements for statutory reform).
The Arizona assisted treatment laws are front-loaded with due
process, however, does provide some nice treatment-supporting options. The law requires
separate judicial hearings for evaluation and for treatment. This bifurcated process
results in the delay of necessary treatment; medication must wait for subsequent, lengthy,
and costly judicial proceedings.
Even so, the laws provide a useful standard for "persistently
or acutely disabled." 36-501 (29) This
standard is particularly important because it does not require a showing of
"dangerousness" for mandated treatment. Rather, a person can receive before deteriorating
to the "dangerousness" level.
Once the court makes the determination that a person qualifies for
involuntary treatment under Arizona law, the court makes an order for commitment. The
commitment provision is unique because it allows for combined inpatient and outpatient
treatment. 36-540(A)
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