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ARIZONA HOUSE OF REPRESENTATIVESFifty-fourth Legislature Second Regular Session |
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HB 2320: psychiatric security review board; hearings
Sponsor: Representative Barto, LD 15
House Engrossed
Overview
Rewrites existing statutes relating to Arizona Psychiatric Security Review Board (PSRB) and adds additional statutory framework for the PSRB.
History
The PSRB was established in 1994 to maintain jurisdiction over persons the superior court has found guilty except insane (GEI) who have caused or threatened to cause death or serious physical injury to another individual. Current law requires GEI individuals to be placed under the PSRB’s jurisdiction for the length of their presumptive sentence and to be committed to the Arizona State Hospital (ASH), which is operated by the Arizona Department of Health Services (DHS). Statute authorizes the PSRB to release any GEI person under its jurisdiction from ASH to the community if the person meets statutory release criteria (A.R.S. §13-502).
In December 2018, the Arizona Auditor General issued a Performance Audit and Sunset Review, Report 18-107, on PSRB. According to the report, the PSRB had 120 GEI persons under its jurisdiction, with 100 residing in ASH, 19 residing in the community and 1 transferred to the Arizona Department of Corrections (ADC). The PSRB is scheduled to sunset on July 1, 2020 (A.R.S. § 41-3020.11)
Provisions
Commitment hearing in superior court; jurisdiction; census data collection
1. States a person who is found GEI must be committed to a secure mental health facility (SMHF) under DHS for a period of treatment. (Sec. 6)
2. States if the person's act did not cause the death or serious physical injury of or the threat of death or serious physical injury to another person, the court must set a hearing within 75 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. (Sec. 6)
3. Requires the court to notify the medical director of the SMHF, the victim and the parties of the date of the hearing. (Sec. 6)
4. Stipulates that 14 days before the hearing, the medical director of the SMHF must submit a mental health report (MHR) to the court and the parties addressing whether the person meets the standard for and should be subject to involuntary hospitalization. (Sec. 6)
5. Outlines that at a hearing held:
6. States that if the court finds that the person's act caused the death or serious physical injury of or the threat of death or serious physical injury to another person, the court must place the person under the jurisdiction of the PSRB. Requires the court to state the beginning date, length and ending date of the PSRB's jurisdiction over the person. (Sec. 6)
7. States the length of the PSRB's jurisdiction over the person is equal to the sentence the person could have received or the presumptive sentence the person could have received. Stipulates that in making the determination, the court may not consider the sentence enhancements for prior convictions. (Sec. 6)
15. Requires the parties to provide the PSRB and the SHMF with a copy of the court's commitment order and all documents considered by the court or admitted into evidence, including all medical and MHR's. (Sec. 6)
16. Requires the court to retain jurisdiction of all matters that are not specifically delegated to the PSRB for the duration of the PSRB's jurisdiction over the person. (Sec. 6)
Examination of defendant pleading guilty except insane; privilege inapplicability; sealed reports
a) The mental status of the defendant at the time of the alleged offense; and
b) If the expert determines that the defendant suffered from a mental disorder at the time of the alleged offense, the relationship of the mental disorder to the alleged offense. (Sec. 7)
18. Directs the parties to provide all available medical, mental health and criminal history records to the qualified expert within 10 days after the appointment. Stipulates that on notice of the court the qualified expert may request additional records from the parties. (Sec. 7)
21. States that after a plea of guilty or after disposition of a matter where the defendant has pled GEI, the court must order all reports to be sealed. States the court may order that the reports be opened only as follows:
a) For use by the court or defendant, or by the prosecutor if otherwise allowed by law, for further competency or sanity evaluations or in a hearing to determine whether the defendant is eligible for court-ordered treatment or is a sexually violent person;
b) For statistical analysis;
c) When the records are deemed necessary to assist in mental health treatment;
d) For use by the probation department or the State Department of Corrections (ADC) if the defendant is in the custody of or is scheduled to be transferred into the custody of ADC to assess and supervise or monitor the defendant by that department;
e) For use by a mental health treatment provider that provides treatment to the defendant or that assesses the defendant for treatment;
f) For data gathering; or
g) For scientific study. (Sec. 7)
24. Clarifies that a person who is placed under the jurisdiction of the PSRB is not eligible for discharge from the PSRB's jurisdiction until the date that the PSRB's jurisdiction over the person expired as set by the committing court or the person's case is transferred back to the superior court. (Sec. 8)
25. States the board may set a hearing pursuant to section 13-3997 and a treatment supervisor may request a hearing pursuant to section 13-3998. (Sec. 8)
26. Clarifies if the PSRB finds that person no longer needs ongoing treatment for a mental disorder, is not dangerous and does not have a propensity to reoffend, the PSRB must order the person's transfer to the superior court for either a judicial review or placement on supervised probation for the remainder of the commitment term, or both. (Sec. 8)
27. Specifies that PSRB's jurisdiction over the person terminates when the person is transferred to the superior court. (Sec. 8)
28. Clarifies that if the person is sentenced and the PSRB finds that the person no longer has a mental disorder and the person is dangerous, PSRB must order the person to be transferred to the superior court for the imposition of a sentence or judicial review, or both. (Sec. 8)
29. States a person who is conditionally released is subject to all of the following:
a) The PSRB, in conjunction with the SMHF and supervisors from the behavioral health community providers, must agree on and specify the conditions of the person's release and the PSRB must monitor the person on conditional release;
b) Before the person is conditionally released a supervised treatment plan must be in place;
c) The PSRB may implement the person's conditional release in incremental steps beginning with supervised passes into the community for increasing lengths of time, continuing through independent passes and ending with release to live in the community. Before implementing each stage of conditional release, the PSRB must find by clear and convincing evidence that the community will be protected, and the person will be safe under the proposed supervised treatment plan;
d) If approved by the PSRB, pass supervisors may include members of the inpatient or outpatient treatment team, other mental health treatment providers or other responsible persons who are willing to ensure that the person abides by the conditional release terms; and
e) The SMHF must implement the PSRB's conditional release order or provide the PSRB and the parties with reasons why the SMHF did not implement the order. (Sec. 8)
30. States that the party or treatment supervisor that is seeking a change in privileges or a change is hospitalization has the burden of proof by clear and convincing evidence. (Sec. 8)
31. Stipulates that all hearings conducted by the PSRB are subject to uniform administrative hearing procedures prescribed in statute, unless otherwise stipulated. (Sec. 8)
32. Stipulates a party or treatment supervisor must submit a request for a hearing to the PSRB at least 45 days before the requested hearing date and must include the reasons for the request. (Sec. 8)
33. Requires the requesting party to provide the PSRB, treatment supervisor and all other parties with a copy of the hearing request. (Sec. 8)
34. States the PSRB must provide written notice of the hearing or a denied request for a hearing to all parties and the person's treatment supervisor within seven days after receiving a request for the hearing. The PSRB may include the following in the notice:
a) A request for an MHR;
b) An updated risk assessment report; and
c) Specific records from the person's medical record or testimony from a specific member of the person's treatment team. (Sec. 8)
35. Stipulates that the above-mentioned section does not prohibit the PSRB from issuing a subpoena pursuant to uniform administrative hearing procedures prescribed in statute. (Sec. 8)
36. States PSRB may only consider reports, documents, written statements and materials, in addition to testimony, that are submitted to the PSRB, treatment supervisor and the parties at least 14 days before the date of the hearing. (Sec. 8)
37. Requires that the witness must be notified at least 14 days before the date of the hearing. (Sec. 8)
38. Allows the PSRB to grant a request to continue a hearing in order to comply with the above-mentioned provisions. (Sec. 8)
39. States the PSRB's decision is effective on oral pronouncement and must issue a written decision to all parties, any victim and the committing court within seven days after the conclusion of the hearing. (Sec. 8)
40. Requires the written decision to contain a summary of the evidence that the PSRB found to be credible and any evidence found to be unpersuasive, specific separately stated finding of fact and conclusions of law and information on the person's right to appeal. (Sec. 8)
41. Requires the findings of fact to include a concise and explicit statement of the underlying facts that support the findings. (Sec. 8)
42. States that any portion of the PSRB's order that contains private identifying information about the patient, treatment supervisor or pass supervisor must be maintained in a separate confidential section and may not be disclosed to the public or to a victim. (Sec. 8)
43. Defines private identifying information. (Sec. 8)
Psychiatric Security Review Board; members, terms; compensation; executive director; board member training
44. Transfers and renumbers A.R.S. § 31-501 for placement in Title 13, Chapter 38, Article 14 as A.R.S. § 13-3995. (Sec. 9)
45. Established the PSRB as an independent state agency. (Sec. 9)
46. States no member of the PSRB member may be employed by a county attorney, attorney general or a public defense agency. (Sec. 9)
47. States one former judge must serve as a non-voting member except if necessary to break a tie vote and the former judge member shall serve as the chairperson. (Sec. 9)
48. Removes the requirement that the PSRB select one of its members to serve as the chairperson for a one-year term. (Sec. 9)
49. States the PSRB must select one of its members to serve as vice-chairperson for a one-year term. (Sec. 9)
50. Changes the PSRB's meeting requirement to conduct business from twice a month to once a month, unless the chairperson determines that there is sufficient business before the PSRB to warrant additional meetings. (Sec. 9)
51. States a member must receive $250 for attending a PSRB meeting and $250 for PSRB meeting preparation. (Sec. 9)
52. States the chairperson or co-chair must receive $50 for each day that the chairperson or co-chair is engaged in an activity that is substantially related to PSRB duties and that is outside of a PSRB meeting and meeting preparation. (Sec. 9)
53. Requires the PSRB to employ an executive director and states the executive director:
a) Serves at the pleasure of PSRB;
b) Performs all administrative, operational and financial functions;
c) May not offer legal advice, question a witness or participate in PSRB deliberations;
d) Is eligible to receive compensation;
e) Is subject to state personnel system requirements prescribed in statute and may employ additional administrative personnel. (Sec. 9)
54. Provides that the presence of three members of PSRB constitutes a quorum for the transaction of business. (Sec. 9)
55. Requires PSRB board members to complete 12 hours of training within one year after the member's initial appointment to the board beginning January 1, 2021. (Sec. 9)
56. Stipulates any PSRB board members appointed before January 1, 2021 must complete the training required by January 1, 2022. (Sec. 9)
57. Outlines the required training for the PSRB board members. (Sec. 9)
58. States any board action taken is not subject to challenge or invalidation because a board member has not completed the training. (Sec. 9)
Psychiatric Security Review Board; powers; duties
59. Transfers and renumbers A.R.S. § 31-502 for placement in Title 13, Chapter 38, Article 14 as A.R.S. 13-3996. (Sec. 10)
60. Clarifies that the PSRB must hold hearings to determine if a person committed to a SMHF is eligible for conditional release or transfer back to superior court. (Sec. 10)
61. Clarifies that on notice from the PSRB or an application by a treatment supervisor or a person on conditional release, the PSRB must hold a hearing to determine if conditional release should be granted, continued, modified, suspended or terminated. (Sec. 10)
62. Clarifies that within seven days after the conclusion of a hearing, the PSRB must provide a written decision and, if the conditional release was granted or modified, the terms of conditional release to the treatment supervisor, parties and ASH. (Sec. 10)
63. Requires the chair or vice-chair and the person who is under the PSRB's jurisdiction sign the terms of conditional release before the person's conditional release. (Sec. 10)
64. Stipulates the terms must contain a notice that PSRB or the outpatient treatment supervisor may order the person's return to hospitalization if the PSRB or outpatient treatment supervisor has a reasonable belief that the person has violated the terms of conditional release or that the person is in need of immediate care, custody, or treatment at a secure mental health facility or that the person's mental health creates a risk to the safety of the public or any person. (Sec. 10)
65. Requires at least three members voting in the affirmative to deny, grant, modify, continue, suspend or terminate a person's conditional release based on clear and convincing evidence. (Sec. 10)
66. Requires the PSRB to request in the notice of hearing that a specific witness who is from the person's treatment team attend a hearing and specifies that if a witness is requested in the notice of hearing, the person's treatment supervisor is responsible for notifying the witness. (Sec. 10)
67. Requires the PSRB to continue a hearing if the PSRB determines that the standard of clear and convincing evident has not been met. (Sec. 10)
68. Requires the PSRB to receive witness testimony and deliberate in a hearing that is closed to the public. (Sec. 10)
Hearing on motion of the Psychiatric Security Review Board; expedited hearing; return to hospitalization
69. States that the PSRB, on its own motion, may set a hearing to monitor a person's progress after giving at least 60 days' notice to the parties and the treatment supervisor. Allows the PSRB to order the person's treatment supervisor to provide an MHR to the PSRB and the parties within 30 days after providing the notice of the hearing (NOH). (Sec. 11)
70. States that if sufficient cause exists, the PSRB may set an expedited hearing to monitor a person's progress or mental health and requires the PSRB to include in the NOH the specific reasons for the expedited hearing and attach all documents and evidence that support the need for the hearing, including any of the PSRB's concerns that need to be addressed by the parties or the treatment supervisor. (Sec. 11)
71. Allows the PSRB to order an expedited MHR from the person's treatment supervisor. (Sec. 11)
72. States if a person is conditionally released to the community and the PSRB receives a reliable report that the person has violated the conditional release order or their mental health has deteriorated, the chairperson or vice-chairperson may order the person's return to hospitalization. (Sec. 11)
73. Stipulates that before ordering a person's return to hospitalization, the chair or vice-chair must consult with the treatment supervisor or the supervisor's designee to determine if rehospitalization is necessary to protect the safety of the public or the person. (Sec. 11)
74. Allows the chair or vice-chair, with sufficient cause, to waive the requirement to consult with the treatment supervisor or supervisor's designee and issue the return order immediately. (Sec. 11)
76. Stipulates that whether on the PSRB's motion or on motion of the person or treatment supervisor, PSRB must hold a hearing for each person under the PSRB's jurisdiction at least once every 24 months. (Sec. 11)
Hearing on request of the treatment supervisor; requirements; release terms
79. States that if a treatment supervisor believes that the person has violated a conditional release term or that the person's mental health has deteriorated, the PSRB must grant the treatment supervisor's request for a hearing and:
a) If the person is residing in the SHMF the treatment supervisor may suspend the person's conditional release pending the hearing and a determination by PSRB. The treatment supervisor must submit a written MHR, including the circumstances and the reasons for any proposed change to the PSRB and the parties within seven days after the request for a hearing; and
b) If the person is conditionally released to the community, the chair or vice-chair may order the person's return to hospitalization and set a hearing. If a person is returned to hospitalization, the outpatient treatment supervisor must submit an MHR to the PSRB and the parties within three days after a request is made. The report must provide all of the information that was considered before granting the return order; and
c) If the safety of the community or the person is not at risk, the chair or vice-chair, pending the hearing and the PSRB's determination, may allow the person to remain in the community subject to the person's conditional release terms. If a person remains in the community, the outpatient treatment supervisor must submit an MHR to the PSRB and the parties within seven days after the request is made. (Sec. 11)
80. Stipulates that if the person is conditionally released to the community and the outpatient treatment supervisor has reasonable cause to believe the person has violated any term of conditional release, is in need of immediate care, custody, or treatment at an SMHF or that the person's mental health creates a risk to the public, the outpatient supervisor can order to admit the person to the SMHF. (Sec. 11)
81. Requires the outpatient supervisor to immediately provide written notice to the Board, the parties and the chief medical officer of the secure mental health facility confirming the person has been admitted. (Sec. 11)
82. States the hearing must occur within seven days after the person's admission to the SMHF, unless the board decides to continue the hearing for good cause or on agreement of the parties. (Sec. 11)
83. Requires the outpatient treatment supervisor to submit a written MHR to the PSRB and the parties within three days after the person's return and must include all of the information that was considered before ordering the person's return. (Sec. 11)
Hearing on motion of a person under the jurisdiction of the Psychiatric Security Review Board
84. Allows a person who is under the jurisdiction of PSRB to request a hearing and PSRB must grant the hearing no sooner than 120 days after the person is committed and placed under the PSRB's jurisdiction. (Sec. 11)
85. States that after the initial hearing or any subsequent hearing, a person may request, and the PSRB must grant a hearing not sooner than 20 months after the previous hearing. (Sec. 11)
86. Allows the PSRB, with sufficient cause, to grant a motion for a hearing by the person who is under the jurisdiction of PSRB at any time. (Sec. 11)
87. States if the person who is under the jurisdiction of the PSRB is requesting a change in their conditional release status, the request must include a proposed form of order and may be accompanied by an MHR. (Sec. 11)
88. States if the person who is under the jurisdiction of PSRB is conditionally released to the community and believes that rehospitalization is necessary to protect the person's safety or the safety of the public, the person may present himself to the outpatient treatment supervisor and request that the outpatient treatment supervisor sign an order for immediate readmission to the SHMF and requires the PSRB to set a hearing. (Sec. 11)
89. Requires the inpatient and outpatient treatment supervisors to submit an MHR to PSRB within seven days after the person is readmitted. (Sec. 11)
Return of person under board's jurisdiction to secure mental health facility; procedures
90. States that a written order of the chair, vice-chair or treatment supervisor is sufficient for a law enforcement officer to take a person into custody and to transport the person to a SHMF. (Sec. 11)
91. Requires a copy of the return order to be immediately provided to the parties, the PSRB and the treatment supervisor. (Sec. 11)
92. Requires the sheriff or other peace office to execute the order and immediately notify the PSRB of the person's return to the SMHF. (Sec. 11)
95. States that if the person's return was:
a) Not supported by sufficient cause, the PSRB must order the person's immediate release under the previously imposed conditional release terms. The PSRB, with sufficient cause may amend conditional release terms;
b) Supported by sufficient cause, the PSRB may amend the conditional release terms and release the person if the PSRB finds by clear and convincing evidence that the safety of the community and the person is protected by the original or the amended conditional release terms; or
c) Supported by sufficient cause and the PSRB determines that the person needs further evaluation or treatment, the PSRB may suspend the terms of conditional release and set another hearing within 90 days and the inpatient treatment supervisor must consult with the outpatient treatment supervisor, submit an MHR to the PSRB containing a recommendation to either terminate, amend or reinstate the person's conditional release and include a proposed form of order by a date set by PSRB . (Sec. 11)
Hearing on expiration of psychiatric security review board's jurisdiction
Transferring jurisdiction of a person from the psychiatric security review board to superior court; procedures
102. States if the PSRB orders a person to be transferred to the superior court, the person's case must be remanded to the committing court for suspension or imposition of sentence and a judicial review of the transfer, or both. (Sec. 11)
103. Specifies that within 20 days after the PSRB orders a person's transfer to superior court, the person may request a judicial review. (Sec. 11)
104. Requires a petition for judicial review to be filed with the committing court and served on the PSRB, the SMHF and the state. (Sec. 11)
105. States that at the judicial review hearing, the treatment supervisor has the burden to prove by clear and convincing evidence that the transfer is appropriate. (Sec. 11)
106. States the issues of the review are limited to all of the following:
a) Whether the person needs ongoing treatment for a mental disorder;
b) Whether the person is dangerous to self or others or has a propensity to reoffend; and
c) Whether the person's offense is eligible for commitment to ADC;
107. Specifies that if the court finds the transfer is appropriate, the court must suspend the person's sentence and place the person on supervised probation for the remainder of the commitment term or impose the sentence and order the person to be imprisoned in ADC. (Sec. 11)
108. Mandates that all time spent under the PSRB's jurisdiction and any time spent incarcerated must be credited against any sentence imposed. (Sec. 11)
109. Stipulates if the court finds the transfer is not supported by the evidence, the court must transfer jurisdiction of the person back to PSRB. (Sec. 11)
110. Stipulates that at the time of sentencing or placement on probation, the court must notify the person in writing of the person's appeal rights under Rule 31 of Arizona Rules of Criminal Procedure. (Sec. 11)
Independent expert witness; opinion evidence
113. States that if the person retains a qualified expert, the qualified expert must provide to the state's expert, on request, all records considered or generated by the qualified expert. (Sec. 11)
117. States that either party may request and the PSRB, with sufficient cause, may grant a continuance for a hearing to accommodate a reasonable request to obtain a qualified expert evaluation. (Sec. 11)
121. Stipulates that an evaluation conducted is at the PSRB's expense. (Sec. 11)
Miscellaneous
124. Defines mental health report as a report written by a treatment supervisor or other qualified expert and that documents the condition of a person's mental health. (Sec. 6)
125. Changes the article heading of Title 13, Chapter 38, Article 14 from procedures on issue of insanity of defendant to psychiatric security review board. (Sec. 4)
126. Transfers and renumbers A.R.S. §§ 13-3991 and 13-3992 for placement in Title 13, Chapter 41 as A.R.S. §§ 13-4519 and 13-4520. (Sec. 5)
127. Defines terms. (Sec. 6)
128. Repeals the title heading of Title 31, Chapter 4. (Sec. 13)
129. Repeals the article heading of Title 31, Chapter 4, Article 1. (Sec. 13)
130. Repeals Title 13, Chapter 38, Article 14 on January 1, 2021. (Sec. 17)
131. Directs Legislative Council to prepare proposed legislation conforming the Arizona Revised Statutes to the provisions of this act for consideration in the 55th Legislature, First Regular Session. (Sec. 19)
132. Requires the PSRB to submit an annual report on compliance and program details to the Governor, Secretary of State, and the Legislature. (Sec. 10)
133. Appropriates funds to the PSRB for operating costs. (Sec. 20)
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Initials LC/AG House Engrossed
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