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ARIZONA HOUSE OF REPRESENTATIVESFifty-fourth Legislature Second Regular Session House: JUD DPA 6-4-0-0-0-0 |
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HB 2735: guilty except insane; court jurisdiction
Sponsor: Representative Barto, LD 15
House Engrossed
Overview
Grants the Superior Court exclusive supervisory jurisdiction over all persons who are under the supervision of the Psychiatric Security Review Board (PSRB) and transfers powers and duties of PSRB to the Superior Court.
History
The Superior Court (Court) has original concurrent jurisdiction as conferred by the Constitution, rule or statute and concurrent jurisdiction with Justices of the Peace for misdemeanors where the penalty does not exceed a fine of $2500 or imprisonment for six months. The court, and judges have all powers and may issue all writs necessary to the complete exercise of its jurisdiction. (A.R.S. §§ 12-122 and 12-123)
The PSRB was established in 1994 to maintain jurisdiction over persons the Superior Court of Arizona 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). PSRB is scheduled to sunset on July 1, 2020 (A.R.S. § 41-3020.11)
Provisions
1.
Clarifies that the public defender on
order of the court must defend, advise and counsel all mental health hearings
regarding release recommendations held in the Court pursuant to requirements
outlined in statute. (Sec. 1)
2. Stipulates that an adult probation officer must exercise general supervision and observation over people under suspended sentence and supervision. (Sec. 2)
3. States unless a public employee intended to cause injury or was grossly negligent, the employee is not liable for a release under the jurisdiction of the Court. (Sec. 3)
4. Clarifies that if the defendant had not been found insane the judge must suspend the sentence and must order the defendant to be placed and remain under the jurisdiction of the Court. (Sec. 4)
5. 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. 6)
6. Defines terms. (Sec. 7)
Commitment hearing in superior court; jurisdiction; census data collection
7. States a person who is found GEI must be committed to a secure mental health facility (SMHF) for a period of treatment. (Sec. 7)
8. 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. 7)
9. 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 remaining parties addressing whether the person meets the standard for and should be subject to involuntary hospitalization. (Sec. 7)
10. States that a hearing held, pursuant to the above-mentioned provisions must do the following:
a) If the person proves by clear and convincing evidence that the person no longer has a mental disorder or that the person still has a mental disorder and is not dangerous, the Court must order the person's release and the person's commitment ordered must terminate; and
b) If the Court finds that the person still has a mental disorder any may present a threat of danger to self or others, has a grave, persistent or acute disability or has a propensity to re-offend, it must order the county attorney to institute civil commitment proceedings and the person's commitment ordered must terminate. (Sec. 7)
11. States if the court finds that the person's act caused the death of or serious physical injury to or the threat of death or serious physical injury to another person, the Court must retain jurisdiction over the person for the entirety of the commitment term. (Sec. 7)
12. Requires the Court to state the beginning date, length and ending date of the commitment term and the Court's jurisdiction over the person. (Sec. 7)
13. States the length of the Court's jurisdiction over the person is equal to the sentence the person could have received or the presumptive sentence the person could have received. (Sec. 7)
14. Stipulates that in making the determination, the Court may not consider the sentence enhancements for prior convictions. (Sec. 7)
15. States that if a person is found GEI, the Department of Health Services (DHS) must assume custody of the person within 10 days after receiving the order committing the person. (Sec. 7)
16. Requires the Arizona State Hospital (ASH) to collect census data for guilty except insane treatment programs to establish maximum capacity and the allocation formula pursuant to clinical assessment requirements. (Sec. 7)
17. States if ASH reaches its maximum funded capacity for forensic programs, DHS services may defer the admission of the person found GEI for up to an additional 20 days. (Sec. 7)
18. Requires DHS to reimburse the county for the actual costs of each day the admission is deferred. (Sec. 7)
19. Stipulates if DHS is not able to admit the person found guilty except insane at the conclusion of the 20-day deferral period, DHS must notify the sentencing Court, prosecutor and defense counsel of this fact. (Sec. 7)
20. Stipulates that 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. (Sec. 7)
21. Directs the Court to set a hearing within 10 days upon receipt of the request for hearing. (Sec. 7)
22. Requires the state and the defendant to provide the SMHF 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. 7)
Examination of defendant pleading guilty except insane; privilege inapplicability; sealed reports
23. Deletes and rewrites A.R.S. § 13-3993(a) as:
a) On request of the court or any party, with the consent of the defendant and after a determination that a reasonable basis exists to support the GEI defense, the Court must appoint a qualified expert to evaluate the defendant and provide a written report that includes:
i. The mental status of the defendant at the time of the alleged offense; and
ii. The relationship of the mental disorder to the alleged offense, if the expert determines that the defendant suffered from a mental disorder at the time of the alleged offense. (Sec. 8)
24. Directs the parties to provide all available medical, mental health and criminal history records to the qualified expert within 10 days after the appointment. (Sec. 8)
25. Stipulates that on notice of the court the qualified expert may request additional records from the parties. (Sec. 8)
26. Directs the defense attorney to nominate its own qualified expert to examine the defendant to determine the defendant's mental status at the time of the alleged offense if the defendant provides a notice of a GEI defense. (Sec. 8)
27. Allows the state to call the same number of medical doctors and licensed psychologists who will testify on behalf of the defense. (Sec. 8)
28. 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. (Sec. 8)
29. States the Court may order that the reports be open 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. 8)
30. Mandates that any statement made by the defendant during an examination that is conducted or any evidence resulting from that statement is not subject to disclosure. (Sec. 8)
Persons under jurisdiction; hearing; mental health report; risk assessment; conditional release; board notices and decisions
31. Deletes and rewrites the following sections in A.R.S. § 13-3994 as:
a) A person who is placed under jurisdiction of the Court is not eligible for discharge from jurisdiction until the date set by the court;
b) The SMHF, outpatient treatment supervisor and person under the jurisdiction of the Court can request a hearing;
c) The person may attend any hearing by video teleconference from the SMHF;
d) If the Court finds that a person who could have been sentenced no longer needs ongoing treatment for a mental disorder, is not dangerous and does not have a propensity to re-offend, the Court must place the person on probation for the remainder of the imposed commitment term;
e) All time spent under the Court's jurisdiction and any time spent committed must be credited against any sentence imposed;
f) 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, Arizona Criminal Procedure;
g) A person who is conditionally released is subject to all of the following:
i. The Court in conjunction with the SMHF and supervisors from behavioral health community providers must agree on and specify the conditions of the person's release and the SMHF must monitor the release;
ii. Before the person is conditionally released, a supervised treatment plan must be in place;
iii. The Court 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;
iv. Before implementing each stage of conditional release, the Court must find by clear and convincing evidence that the safety of the community will be protected, and the person will be safe under the proposed supervised treatment plan;
v. If approved by the Court, 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
vi. The SMHF must implement the Court's conditional release order or provide the Court and the parties with the reasons why the SMHF did not implement the order;
h) At any hearing release or conditional release, the party or treatment supervisor who is seeking a change in privileges or a change in hospitalization has the burden of proof by clear and convincing evidence;
i) Unless otherwise provided or on a showing of sufficient cause, a party must submit a request for a hearing and include the reasons for the request;
j) When a hearing is set, the Court must order the treatment provider to submit an MHR;
k) The Court's decision is effective on oral pronouncement; and
l) Any portion of the order that contains personal identifying information about the patient, treatment supervisor or pass supervisor must be sealed by the Court and may not be disclosed to the public or to a victim. (Sec. 9)
Hearing on motion of the SMHF; expedited hearing; return to hospitalization
32. States that on request of the SMHF, the Court may grant a hearing to monitor a person's progress on conditional release. (Sec. 10)
33. Requires the SMHF to include in the request the specific reasons for requesting a hearing, as well as any records, under seal, of communications and reports that support the need for the hearing. (Sec. 10)
34. States that on request of the person or SMHF facility, the Court may order the outpatient treatment supervisor to submit an MHR to the Court and the parties not later than 14 days before the hearing. (Sec. 10)
35. Stipulates that if sufficient cause exists, the SMHF may request an expedited hearing. (Sec. 10)
36. Permits the Court to set an expedited hearing to monitor a person's progress or mental health, if requested. (Sec. 10)
37. Requires the SMHF to include in the request for the hearing the specific reasons for the expedited hearing and include records under seal of all communications and reports that support the need for the expedited hearing. (Sec. 10)
38. Allows the Court to order an expedited MHR from the person's outpatient treatment supervisor. (Sec. 10)
39. States if a person is conditionally released to the community and the SMHF has reason to believe that the person has violated the conditional release order or that the person's mental health has deteriorated, the Chief Medical Officer (CMO) or their designee may order the person's return to hospitalization. (Sec. 10)
40. Specifies that before ordering a person's return to hospitalization, the CMO or their designee must consult with the outpatient treatment supervisor or the supervisor's designee to determine if hospitalization is necessary to protect the safety of the public or the person. (Sec. 10)
41. States that with sufficient cause, the CMO or their designee may waive the requirement to consult with the treatment supervisor or their designee and may issue the return order immediately. (Sec. 10)
42. Stipulates that if the return order is issued before a consultation occurs, the CMO or their designee must consult with the outpatient treatment supervisor or supervisor's designee as soon as possible after the order is issued. (Sec. 12)
43. Mandates the Court be notified immediately and must set a hearing. (Sec. 10)
44. Mandates that all monthly monitoring reports regarding a person who is on conditional release must be submitted to the SMHF and the SMHF may take any appropriate action. (Sec. 10)
Hearing on request of the treatment supervisor; requirements; release terms
45. Directs the Court to grant a hearing that is requested by a treatment supervisor in order to review the status of the person under supervision. (Sec. 10)
46. Requires the treatment supervisor to, in the request, include the specific reasons for the request of the hearing and any records, under seal, of communications and reports that support the need for the hearing. (Sec. 10).
47. Directs the treatment supervisor to submit the request to the Court and the parties simultaneously and include an MHR under seal. (Sec. 10)
48. States if the treatment supervisor's recommendation includes a request for the addition of or changes to conditional release status, a proposed form of order must accompany the request for a hearing. (Sec. 10)
49. States if a treatment supervisor believes that the person has violated a conditional release term or that the person's mental health has deteriorated, and:
a) If the person is residing in the SMHF, the treatment supervisor may suspend the person's conditional release pending the hearing, and determination by the Court;
i. The treatment supervisor must file a written MHR under seal, including the circumstances and the reasons for any proposed change to the Court and the parties within seven days after the request for a hearing;
b) If the person is conditionally released to the community, the Court may order the person's return to hospitalization and set a hearing;
i. The outpatient treatment supervisor must submit an MHR providing all of the information that was considered before granting the return order to the Court and the parties within three days after a request; and
c) If the safety of the community or the person is not at risk, the Court may allow the person to remain in the community subject to the person's conditional release terms and the outpatient treatment supervisor must submit an MHR within seven days after the request is made. (Sec. 10)
50. Stipulates that if the person is conditionally released to the community and the treatment supervisor has sufficient cause to believe that the person's mental health has deteriorated such that immediate rehospitalization is necessary to protect the safety of the public or the person, the treatment supervisor may sign an order directing the person's return and members of the treatment team may transport the person to the SMHF to be immediately readmitted. (Sec. 10)
51. Requires the treatment supervisor to inform the Court and parties within one court day after the person's return. (Sec. 10)
52. Requires the Court to set a hearing and outpatient supervisor to submit a written MHR to the Court and parties within three days after the person's return, including all of the information that was considered before ordering the person's return. (Sec. 10)
Hearing on motion of a person under the jurisdiction of the court
53. Allows a person who is under the jurisdiction of the Court to request and the Court must grant a hearing not sooner than 120 days after the person is committed to the SHMF. (Sec. 10)
54. Stipulates that after the initial hearing or any subsequent hearing, a person may request, and the Court must grant a hearing not sooner than 20 months after the previous hearing. (Sec. 10)
55. Allows the Court, with sufficient cause, to grant a motion for a hearing by the person at any time. (Sec. 10)
56. States if the person is requesting a change in conditional release status, the request must include a proposed form of order and may be accompanied by an MHR. (Sec. 10)
57. States if the person 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 SMHF. (Sec. 10)
58. Requires the Court to set a hearing. (Sec. 10)
59. Requires the inpatient and outpatient treatment supervisors to submit an MHR to the Court within seven days after the person is readmitted. (Sec. 10)
Return of person under jurisdiction to SMHF; procedures
60. Stipulates that a written order of the Court, CMO or their designee or the outpatient treatment supervisor is sufficient for a law enforcement officer to take a person into custody and to transport the person to a SMHF. (Sec. 10)
61. Requires a copy of the return order to be immediately provided to the parties and the Court. (Sec. 10)
62. Require the sheriff or other peace officer to execute the order and immediately notify the Court of the person's return to the SMHF. (Sec. 10)
63. States that within 24 hours after a return order is issued, the entity that ordered the return must provide to the parties all information and evidence that was considered when ordering the person's return. (Sec. 10)
64. States that within seven days after returning the person to the SMHF, the Court must hold a hearing to determine if the return was supported by sufficient cause. (Sec. 10)
65. States if the person's return was:
a) Not supported by sufficient cause, the Court must order the person's immediate release under the previously imposed conditional release terms and may amend conditional release terms with sufficient cause;
b) Supported by sufficient cause, the Courts may amend the conditional release terms and release the person if the Court 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 Court determines that the person is in need of further evaluation or treatment, the Court 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 Court and parties 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 the Court. (Sec. 10)
Hearing on expiration of jurisdiction
66. Stipulates that at least 30 days before the expiration of jurisdiction over a person, the Courts must set an expiration hearing and order the treatment supervisor to provide to the Court and parties an MHR. (Sec. 10)
67. Requires the MHR to include an evaluation of whether the person may be a danger to self or others or has a persistent, acute or grave disability and whether the person meets the criteria for involuntary hospitalization. (Sec. 10)
68. States that after an expiration hearing, the Court may allow the jurisdiction to expire without further action or may order the county attorney of the committing county to begin proceedings for court-ordered evaluation. (Sec. 10)
69. States if the Court orders an evaluation for a person who resides in the community, the order must require the person's appearance at a specified time, location and participation in the evaluation before the expiration of the jurisdiction. (Sec. 10)
70. Directs the treatment supervisor to assist the person with securing transportation to the location of the evaluation. (Sec. 10)
71. Requires the Court to order the sheriff of the committing county to transport the person at a specified time and location so that the person may participate in the evaluation before the expiration of the PSRB's supervisory jurisdiction over the person, if the Court orders an evaluation for a person who resided in an SMH. (Sec. 10)
Expert witness; opinion evidence
72. States that before any hearing, either party may retain an independent qualified expert to evaluate the person and make recommendations to the Court. (Sec. 10)
73. Requires the county of the committing court to pay all costs associated with the evaluation if the person is indigent. (Sec. 10)
74. Stipulates that if the person retains a qualified expert, the person must submit to the state's evaluation, if requested, or is precluded from presenting the person's own qualified expert opinion. (Sec. 10)
75. Requires an independent qualified expert who is retained by either party provide a written report to the remaining parties at least 14 days before a hearing, if providing testimony. (Sec. 10)
76. Specifies that if requested, the qualified expert must be available for an interview or deposition by the opposing party. (Sec. 10)
77. States that any party may request and the Court, with sufficient cause, may grant a continuance for a hearing to accommodate a reasonable request to obtain a qualified expert evaluation. (Sec. 10)
78. Mandates that a hearing that is requested may not be continued at the state's request. (Sec. 10)
79. Allows the Court, with sufficient cause, to order an MHE by its own appointed qualified expert. (Sec. 10)
80. Stipulates that an evaluation conducted is at the expense of the county. (Sec. 10)
81. States that an expert who is appointed by the Court must provide a written report to the parties at least 14 days before a hearing. (Sec. 10)
82. Requires the expert to be available to testify and, if requested, be interviewed or deposed by any party. (Sec. 10)
Miscellaneous
83. 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. 6)
84. Defines terms. (Sec. 7)
85. Repeals the title heading of Title 31, Chapter 4. (Sec. 12)
86. Repeals A.R.S. § 41-3020.11 relating to the PSRB termination date. (Sec. 16)
87. Stipulates that beginning from and after the effective date of this Act, the Court must have exclusive supervisory jurisdiction over all persons under the supervision of PSRB. (Sec. 18)
88. Grants the Court with all powers and duties of the PSRB as they existed before the effective date of this Act to carry out the above-mentioned provisions. (Sec. 18)
89. Contains an effective date of June 30th, 2021. (Sec. 19)
90. Makes technical changes. (Sec. 1, 3, 4, 5, 8, 9, 11, 13, 14, 15 and 17)
91. Makes conforming changes. (Sec. 8, 9 and 10)
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Initials LC/AG House Engrossed
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