A.R.S. tit. 36 ch. 40 — Arizona Revised Statutes Title 36 Chapter 40 — Dangerous And Incompetent Persons

36-4001. Definitions In this article, unless the context otherwise requires: 1. "Attorney for the state" means the county attorney in the county where the committed defendant was found to be a committed defendant, or the attorney general, who represents this state at any proceedings held pursuant to this chapter. 2. "Biannually" means twice per year. 3. "Committed defendant": (a) Means a person who has been determined to be incompetent and nonrestorable and dangerous pursuant to title 13, chapter 41. (b) Includes the committed defendant's attorney or the committed defendant's court-appointed guardian, if any. 4. "Competent professional" means a person who is: (a) Familiar with this state's criminal and involuntary commitment statutes and standards that are available in this state for persons with a mental illness, defect or disability. (b) Approved by the superior court as meeting court approved guidelines. 5. "Dangerous" means that, as a result of a mental illness, defect or disability, a person's continued behavior can reasonably be expected, on the basis of a mental health expert's opinion, to result in serious physical harm or death to another person. 6. "Less restrictive alternative" means court-ordered treatment in a setting that is less restrictive than total confinement. 7. "Medical director" means the medical director of the secure behavioral health residential facility in which the committed defendant resides. 8. "Mental illness, defect or disability" means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including a congenital mental condition, a condition resulting from injury or disease or a developmental disability as defined in section 36-551. 9. "Secure state mental health facility" means a secure behavioral health residential facility that is licensed pursuant to section 36-425.06. 36-4002. Biannual examination of committed persons; report; records access; attorney withdrawal A. The psychiatrist, psychologist or other competent professional of the secure state mental health facility shall biannually examine each person who is committed pursuant to section 13-4521. The person who conducts the biannual examination shall submit the examination report to the court, the state and the committed defendant. The biannual report shall state the treatment and education that the committed defendant has received, a prognosis for the committed defendant's restoration to competency and whether the committed defendant remains dangerous. B. If the psychiatrist, psychologist or other competent professional submits a report indicating that the committed defendant is competent to stand trial or is no longer dangerous, the court shall hold a hearing to determine whether the committed defendant is competent or is no longer dangerous. C. If the psychiatrist, psychologist or other competent professional submits a report that the committed defendant is no longer dangerous in whole or in part because of medication that the committed defendant is taking, the report shall state whether the committed defendant will continue to take that medication if released to a less restrictive alternative and would comply with all other conditions of a less restrictive alternative. D. The court shall hold the hearing within forty-five days after receiving the report. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous and that the committed defendant is incompetent to stand trial. E. A retained or appointed competent professional shall have access to all records concerning the committed defendant. All competent professionals shall have equal access to the committed defendant as well as all records concerning the committed defendant. F. This section does not preclude the committed defendant from petitioning the court for conditional release to a less restrictive alternative or discharge from treatment pursuant to section 36-4004, subsection C. G. If the committed defendant's attorney withdraws from representing the committed defendant at any time during the committed defendant's commitment, the court shall notify the attorney for the state and the committed defendant and either allow the committed defendant sufficient time to employ another attorney or, if the committed defendant is indigent, appoint an attorney to represent the committed defendant in connection with proceedings under this article. 36-4003. Disposition After a hearing pursuant to section 36-4002 or 36-4004, if the court finds that: 1. The committed defendant has been restored to competency, the court shall order the criminal proceedings to resume. 2. The committed defendant has not been restored to competency and: (a) The committed defendant is not dangerous, the court shall release the committed defendant from treatment and proceed pursuant to section 13-4517, paragraph 1, 2 or 3. (b) The committed defendant is not dangerous in whole or in part because of the habilitation or treatment that the patient is receiving, including taking medication, the court may release the committed defendant to a less restrictive alternative pursuant to sections 36-4005 and 36-4006. (c) The committed defendant is dangerous, the committed defendant, subject to section 13-4521, subsection H, shall remain committed for education, care, supervision and treatment to render the committed defendant competent or nondangerous. 36-4004. Petition for conditional release; procedures A. If the medical director determines that the committed defendant's mental illness, defect or disability has so changed that the committed defendant is no longer dangerous if conditionally released to a less restrictive alternative, the medical director shall allow the committed defendant to petition the court for conditional release to a less restrictive alternative. The committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for conditional release to a less restrictive alternative within forty-five days after receiving the petition. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. B. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous if conditionally released to a less restrictive alternative or conditionally released. C. This section does not prohibit the committed defendant from annually petitioning the court for conditional release to a less restrictive alternative without the approval of medical director. The medical director shall provide an annual written notice to the committed defendant of the committed defendant's right to petition the court for conditional release to a less restrictive alternative without the approval of the medical director. The notice must contain a waiver of rights. The medical director shall submit the notice and waiver to the court with the annual examination report. D. The committed defendant may be present at the hearing. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous if conditionally released to a less restrictive alternative. If the state does not meet its burden of proof, the committed defendant shall be discharged from treatment. E. At the conclusion of a hearing, if the court finds that there is no legally sufficient evidentiary basis to conclude that the conditions prescribed in section 36-4006 have been met, the court shall deny conditional release to a less restrictive alternative. 36-4005. Conditional release to a less restrictive alternative; conditions; reports; review A. If the court determines that conditional release to a less restrictive alternative is in the best interest of the committed defendant and will adequately protect the community and the court determines that the minimum conditions under section 36-4006 are met, the court shall enter judgment and order the committed defendant's conditional release to a less restrictive alternative. B. If the court concludes that the only reason the committed defendant does not meet the standard for continued commitment is the effect of treatment or habilitation being received, the court may deny the request for conditional release to a less restrictive alternative unless the court finds by a preponderance of the evidence that the committed defendant will continue to receive treatment and habilitation following release for as long as the treatment and habilitation is required. If the court finds that the committed defendant will continue to receive the needed treatment or habilitation, the court may order the committed defendant to be conditionally released to a less restrictive alternative on the condition that the committed defendant continue to receive treatment or habilitation. If the committed defendant fails to receive the treatment or habilitation ordered, the court may revoke the conditional release. C. The court may impose any additional conditions on the committed defendant that the court determines are necessary to ensure the committed defendant's compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the committed defendant's compliance with treatment and protect the community, the court shall remand the committed defendant to the custody of the medical director for care, supervision or treatment in a secure state mental health facility. D. If the provider that is designated to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a committed defendant's placement in a less restrictive alternative is not the secure state mental health facility, the provider shall agree in writing to provide the treatment. E. Before the court authorizes a committed defendant's conditional release to a less restrictive alternative, the court shall impose any conditions on the committed defendant that the court determines are necessary to ensure the safety of the community. The conditions shall include that before being released to a less restrictive alternative, a committed defendant must submit to ninety days of inpatient evaluation at the secure state mental health facility, except that in the medical director's discretion, the duration of the evaluation period may be less than ninety days. The court shall order the medical director to investigate the less restrictive alternative and to submit additional conditions to the court. The court shall give a copy of the conditions of release to the committed defendant and to any designated service provider. Other conditions may include any of the following: 1. Specifying a residence. 2. Requiring compliance with any medications prescribed and any testing or monitoring required. 3. Prohibiting any contact with potential or past victims or other persons and prohibiting associating with other persons or types of persons. 4. Prohibiting the use of alcohol and other drugs. 5. Requiring that the committed defendant remain in this state unless the committed defendant receives prior authorization to leave this state from the court. 6. Requiring compliance with required supervision, monitoring or reporting. 7. Complying with other conditions that the court or the medical director determines are in the best interest of the committed defendant or others. F. Following a determination that a committed defendant's release to a less restrictive alternative is warranted and after considering the recommendation regarding the duration and amount of treatment by the medical director, the court shall require as a condition of release to a less restrictive alternative that the committed defendant participate in outpatient treatment. The outpatient supervision and treatment may include monitoring a committed defendant by use of an electronic bracelet. The treatment shall continue until the court orders a change in the committed defendant's treatment requirements or the committed defendant is discharged pursuant to section 36-4009. G. Each month or as otherwise directed by the court, each designated service provider shall submit a report that states whether the committed defendant is complying with the terms and conditions of conditional release to a less restrictive alternative to each of the following: 1. The court. 2. The secure state mental health facility from which the committed defendant was released. 3. The attorney for the state. H. The court shall review the case of each committed defendant who is conditionally released to a less restrictive alternative within one year after the committed defendant's release and annually thereafter on motion of either party or the medical director or on the court's own motion until the committed defendant is discharged. At a case review, the court shall determine only if the committed defendant shall continue to be conditionally released to a less restrictive alternative. In making its determination, the court shall consider the periodic reports that are submitted to the court pursuant to subsection G of this section and the opinions of the medical director and any other competent professional. 36-4006. Conditional release to a less restrictive alternative; findings Before the court orders that a committed defendant be conditionally released to a less restrictive alternative, the court shall find that all of the following apply: 1. The committed defendant will be treated by a competent professional. 2. The competent professional presents a specific course of treatment for the committed defendant, agrees to assume responsibility for the committed defendant's treatment, will report on the committed defendant's progress to the court on a regular basis and will report any violations as prescribed in paragraphs 4 and 5 of this section immediately to the court, the attorney for the state and the medical director. 3. The committed defendant who is conditionally released to a less restrictive alternative has housing arrangements that are sufficiently secure to protect the community and the person or agency that is providing the housing to the conditionally released committed defendant agrees in writing to the following conditions: (a) To accept the conditionally released committed defendant. (b) To provide the level of security that the court requires. (c) To immediately report the unauthorized absence of the conditionally released committed defendant from the housing arrangement to which the committed defendant has been assigned. 4. The committed defendant will comply with the competent professional and all of the requirements that are imposed by the competent professional and the court. 5. The committed defendant will comply with the supervision requirements that are imposed by the court or the medical director. 36-4007. Detention and commitment requirements; definition A. A committed defendant does not forfeit any legal right and may not suffer any legal disability as a consequence of any actions taken or orders made pursuant to this article except as specifically provided in this article. B. A committed defendant shall receive care, supervision or treatment. The medical director shall keep records detailing all medical, expert and professional care and treatment that a committed defendant receives and shall keep copies of all reports of periodic examinations that are made pursuant to this article. These records and reports shall be made available on request only to any of the following: 1. The committed defendant. 2. The committed defendant's attorney. 3. The attorney for the state. 4. The court. 5. On proper showing, an expert or professional who demonstrates a need for access to the records or reports. 6. Any mental health professional directly responsible or associated with the mental health professional who is directly responsible for the care, control, assessment or treatment of the committed defendant. C. At the time a committed defendant is detained or transferred into a licensed facility, the person in charge of the facility or the person's designee shall take reasonable precautions to inventory and safeguard the personal property of the detained or transferred committed defendant. The staff member who makes an inventory of the committed defendant's personal property shall give a signed copy of that inventory to the committed defendant. The facility shall allow a responsible relative to inspect the property, subject to any limits that the committed defendant specifically imposes. The facility may not disclose the contents of the inventory to any other person without the consent of the committed defendant or a court order. D. Except as provided in section 13-4517, subsection B, the medical director is responsible for all expenses associated with the education, care, supervision and treatment to render the committed defendant either competent or nondangerous. E. This article does not prohibit a committed defendant from exercising any right that is available for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus. The committed defendant must exhaust all direct appeal and postcommitment procedures before exercising the committed defendant's right to petition for a writ of habeas corpus. F. A committed defendant who is indigent may not be conditionally released to a less restrictive alternative or discharged without suitable clothing. When a committed defendant is conditionally released to a less restrictive alternative or discharged, the medical director shall furnish the committed defendant with an amount of money in conformance with section 31-228. G. For the purposes of this section, "responsible relative" means the spouse, parent, adult child or adult sibling of the committed defendant and includes the guardian, conservator or attorney of the committed defendant. 36-4008. Revocation of conditional release to a less restrictive alternative; hearing A. If the attorney for the state, the medical director or the court believes that a committed defendant who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of release or is in need of additional care and treatment, the medical director or the attorney for the state may petition the court for, or the court on its own motion may schedule, a hearing for the purpose of revoking or modifying the terms and conditions of the committed defendant's conditional release. The hearing shall be held within ten days after the petition is filed. B. If the attorney for the state or the court reasonably believes that a committed defendant who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of the committed defendant's conditional release or is in need of additional care or treatment or that the circumstances of the release have changed so that the community is no longer safe, the court may order that the conditionally released committed defendant be detained and taken into custody until a hearing can be scheduled to determine if the committed defendant's conditional release should be revoked or modified. The court and the committed defendant shall be notified before the close of the next judicial day of the committed defendant's detention. The attorney for the state and the committed defendant may request an immediate mental examination of the committed defendant. If the conditionally released committed defendant is indigent, the court, on request, shall assist the committed defendant in obtaining a competent professional to conduct the examination. C. Within five days after receiving notice of the committed defendant's detention, the court shall schedule a hearing. At the hearing, the court shall determine if the state has proved by a preponderance of the evidence that the committed defendant who is conditionally released to a less restrictive alternative did not comply with the terms and conditions of release or is in need of additional care or treatment, if the circumstances of the release have changed so that the community is no longer safe, if the committed defendant should continue on conditional release under the same or modified conditions or if the conditional release should be revoked and the committed defendant should be committed to total confinement, subject to release only under the provisions of this article. The court may admit hearsay evidence if the court finds that the hearsay evidence is otherwise reliable. 36-4009. Petition for discharge; procedures; annual report A. If the medical director determines that the committed defendant's mental illness, defect or disability has so changed that the committed defendant is no longer dangerous if discharged but remains incompetent to stand trial, the medical director shall allow the committed defendant to petition the court for discharge. The committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for discharge within forty-five days after receiving the petition. B. The committed defendant may be present at the discharge hearing. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous. If the state does not meet its burden of proof, the committed defendant shall be discharged from treatment. C. This section does not prohibit the committed defendant from annually petitioning the court for discharge without the approval of the medical director. The medical director shall give annual written notice to the committed defendant of the committed defendant's right to petition the court for discharge without the approval of the medical director and provide a copy of that written notice to the committed defendant in connection with proceedings under this article. The notice shall contain a waiver of rights. The medical director shall submit the notice and waiver to the court with the annual examination report. D. The medical director of each secure state mental health facility shall annually report the following information for the previous year to the Arizona criminal justice commission: 1. The number of committed defendants who are under the jurisdiction of the medical director because the individual is dangerous, incompetent and nonrestorable. 2. The number of individuals who are committed defendants and dangerous and who are released. 36-4010. Place for proceedings; transportation; immunity A. A committed defendant may not be transported from a secure state mental health facility, except that a committed defendant may be transported to court for any of the following reasons: 1. A hearing on a biannual examination. 2. A hearing on a petition for conditional release to a less restrictive alternative pursuant to section 36-4005. 3. A hearing on a petition for discharge pursuant to section 36-4009. 4. Any evidentiary hearing in which the presence of a committed defendant is necessary. 5. Any court proceeding not otherwise specified in this article where the presence of the committed defendant is required. B. Subsection A of this section does not apply to any committed defendant who the court has determined is subject to discharge pursuant to section 36-4009 or to any necessary medical transports. C. Subsection A of this section does not preclude any proceeding from being held on the grounds of the a secure state mental health facility or from using a telephonic conference or an interactive audiovisual device. The court shall adopt rules concerning the conduct of proceedings pursuant to this article. The rules shall ensure the safety of all persons. The rules may include provisions that allow for proceedings to be held on the grounds of a secure state mental health facility or for the use of a telephonic conference or an interactive audiovisual device. D. The medical director is responsible for transporting a committed defendant to and from a medical facility. The medical director shall determine the appropriate mode of transportation and level of security and restraint for the transportation needs of the committed defendant. In determining the appropriate mode of transportation and level of security and restraint, the medical director shall consider the safety of the public, the transporting personnel and the detained or committed defendant. E. The medical director and any county sheriff are immune from liability for any good faith acts under this section. 36-4011. Findings A finding made by the court pursuant to this article is inadmissible in any proceeding other than a proceeding under this article, under title 13, chapter 41 or under chapter 5 of this title.