36-539. Conduct of hearing; record; transcript
A. The medical director of the evaluation agency shall issue instructions to the physicians or the psychiatric and mental health nurse practitioner of the evaluation agency who is treating the proposed patient to take all reasonable precautions to ensure that at the time of the hearing the proposed patient is not so under the influence of or does not so suffer the effects of drugs, medication or other treatment as to be hampered in preparing for or participating in the hearing. If the proposed patient is being treated as an inpatient by the evaluation agency, the court at the time of the hearing shall be presented a record of all drugs, medication or other treatment that the person has received during the seventy-two hours immediately before the hearing.
B. The patient and the patient's attorney shall be present at all hearings, and the patient's attorney may subpoena and cross-examine witnesses and present evidence. The court, for good cause shown, may allow the patient, the patient's attorney or any witness to appear and present testimony in open court through the use of telephone, videoconferencing or other audiovisual technology. The patient may choose to not attend the hearing or the patient's attorney may waive the patient's presence. The evidence presented by the petitioner or the patient shall include the testimony of two or more witnesses, regardless of the witnesses' professional licensure, if any, who observed or were acquainted with the patient at the time of the alleged mental disorder before the submission of the current application for evaluation pursuant to section 36-520 or, if after the submission of the current application, who were not formal participants in the evaluation process. The testimony of the witnesses shall be limited to observed facts and may not include expert opinion or conclusions. The witness testimony may be satisfied by a statement agreed on by the parties and testimony of the two physicians or other health professionals who participated in the evaluation of the patient pursuant to section 36-533, which may be satisfied by stipulating to the admission of the affidavits as required pursuant to section 36-533, subsection B. The evaluating physicians or other health professionals shall testify as to their personal observations of the patient. They shall also testify as to their opinions concerning whether the patient is, as a result of mental disorder, a danger to self or to others or has a persistent or acute disability or a grave disability and as to whether the patient requires treatment. Such testimony shall state specifically the nature and extent of the danger to self or to others, the persistent or acute disability or the grave disability. If the patient has a grave disability, the evaluating physicians or other health professionals shall testify concerning the need for guardianship or conservatorship, or both, and whether or not the need is for immediate appointment. Other persons who have participated in the evaluation of the patient or, if further treatment was requested by a mental health treatment agency, persons of that agency who are directly involved in the care of the patient shall testify at the request of the court or of the patient's attorney. Witnesses shall testify as to placement alternatives appropriate and available for the care and treatment of the patient. The clinical record of the patient for the current admission shall be available and may be presented in full or in part as evidence at the request of the court, the county attorney or the patient's attorney.
C. If the patient, for medical or psychiatric reasons, is unable to be present at the hearing and cannot appear by other reasonably feasible means, the court shall require clear and convincing evidence that the patient is unable to be present at the hearing and on such a finding may proceed with the hearing in the patient's absence.
D. The requirements of subsection B of this section are in addition to all rules of evidence and the Arizona rules of civil procedure, not inconsistent with subsection B of this section.
E. A verbatim record of all proceedings under this section shall be made by stenographic means by a court reporter if a written request for a court reporter is made by any party to the proceedings at least twenty-four hours in advance of such proceedings. If stenographic means are not requested in the manner provided by this subsection, electronic means shall be directed by the presiding judge. The stenographic notes or electronic tape shall be retained as provided by statute.
F. A patient who has been ordered to undergo treatment may request a certified transcript of the hearing. To obtain a copy, the patient shall pay for a transcript or shall file an affidavit that the patient is without means to pay for a transcript. If the affidavit is found true by the court, the expense of the transcript is a charge on the county in which the proceedings were held, or, if an intergovernmental agreement by the counties has required evaluation in a county other than that of the patient's residence, such expense may be charged to the county of the patient's residence or in which the patient was found before evaluation.
Notes of Decisions
Cited in
83
cases (
18 in the last 5 years), 1975–2026 · leading case:
In re MH 2006-000749, 152 P.3d 1201 (Ariz. Ct. App. 2007).
In re MH 2006-000749, 152 P.3d 1201 (Ariz. Ct. App. 2007).
· cites it 18× “4 ¶ 16 Appellant argues that the statute’s mandate that the patient “shall be present” requires that an involuntary treatment hearing may not take place without the presence of the patient, and that the superior court’s decision in this case to go forward in her absence…”
In re MH 2007-001275, 196 P.3d 819 (Ariz. Ct. App. 2008).
· cites it 28× “However, the effect of the stipulation is at issue because of the nature of the 539 hearing and the lack of any evidence on the record that Appellant voluntarily, knowingly and intelligently had agreed to waive his rights to a contested hearing.”
In Re Mh2010-002637, 263 P.3d 82 (Ariz. Ct. App. 2011).
· cites it 27× “4 When we consider the state’s strong public policy to have the patient attend the civil commitment hearing, as articulated in A.R.S. § 36-539, we see no reason why it is not also in the petitioner’s interest to allow a patient, who otherwise could not attend, to appear…”
In Re Maricopa Cnty. Superior Court No. MH 2001-001139, 54 P.3d 380 (Ariz. Ct. App. 2002).
· cites it 12× “2001), and (2) the qualifications for acquaintance witnesses pursuant to A.R.S. § 36-539(B) (1993). Pertinent Facts and Procedural History ¶2 On September 6, 2001, an Application for Involuntary Evaluation of appellant was filed pursuant to A.”
In re MH 2007-001236, 204 P.3d 418 (Ariz. Ct. App. 2008).
· cites it 13× “Among other requirements, the statute mandates that, [t]he evidence presented by the petitioner or the patient shall include the testimony of .”
In re MH 2006-000490, 154 P.3d 387 (Ariz. Ct. App. 2007).
· cites it 15× “” A.R.S. § 36-539(B). The physicians are required to testify “as to their opinions concerning whether the patient is, as a result of mental disorder .”
In Re Mh Xxxx-Xxxxxx, 196 P.3d 819 (Ariz. Ct. App. 2008).
· cites it 32× “However, the effect of the stipulation is at issue because of the nature of the 539 hearing and the lack of any evidence on the record that Appellant voluntarily, knowingly and intelligently had agreed to waive his rights to a contested hearing.”
In Re Jesse M., 170 P.3d 683 (Ariz. Ct. App. 2007).
· cites it 7× “¶ 14 Finally, as noted above, section 36-539 outlines the hearing procedure and the role of the patient’s lawyer.”
In re MH 2007-001264, 189 P.3d 1111 (Ariz. Ct. App. 2008).
· cites it 10× “After oral argument the court stated that although her argument was legally correct, the relief Patient was requesting would only delay the proceeding as both the hospital and Patient were ready to proceed with the hearing at that time.”
In Re Mh 2008-002596, 219 P.3d 242 (Ariz. Ct. App. 2009).
· cites it 13× “”) section 36-539 (2009). Appellant requests that we establish an arbitrary number of encounters or minimum period of time over which a witness must have been acquainted with one for whom commitment is sought before the witness may function as an acquaintance witness under the…”
In Re Pinal Cnty. Mental Health No. Mh-201000029, 240 P.3d 1262 (Ariz. Ct. App. 2010).
· cites it 8× “" A.R.S. § 36-539(B). "Examination" is defined as "an exploration of the person's past psychiatric history and of the circumstances leading up to the person's presentation, a psychiatric exploration of the person's present mental condition and a complete physical examination.”
Ariz. Rev. Stat. § 36-539(13): 2 cases
In Re Jesse M., 170 P.3d 683 (Ariz. Ct. App. 2007).
“¶ 14 Finally, as noted above, section 36-539 outlines the hearing procedure and the role of the patient’s lawyer.”
Ariz. Rev. Stat. § 36-539(A): 4 cases
Ariz. Rev. Stat. § 36-539(B): 70 cases
In Re Maricopa Cnty. Superior Court No. MH 2001-001139, 54 P.3d 380 (Ariz. Ct. App. 2002).
“2001), and (2) the qualifications for acquaintance witnesses pursuant to A.R.S. § 36-539(B) (1993). Pertinent Facts and Procedural History ¶2 On September 6, 2001, an Application for Involuntary Evaluation of appellant was filed pursuant to A.”
In re MH 2006-000749, 152 P.3d 1201 (Ariz. Ct. App. 2007).
“4 ¶ 16 Appellant argues that the statute’s mandate that the patient “shall be present” requires that an involuntary treatment hearing may not take place without the presence of the patient, and that the superior court’s decision in this case to go forward in her absence…”
In re MH 2006-000490, 154 P.3d 387 (Ariz. Ct. App. 2007).
“” A.R.S. § 36-539(B). The physicians are required to testify “as to their opinions concerning whether the patient is, as a result of mental disorder .”
In re MH 2007-001236, 204 P.3d 418 (Ariz. Ct. App. 2008).
“Among other requirements, the statute mandates that, [t]he evidence presented by the petitioner or the patient shall include the testimony of .”
In Re Mh 2008-002596, 219 P.3d 242 (Ariz. Ct. App. 2009).
“”) section 36-539 (2009). Appellant requests that we establish an arbitrary number of encounters or minimum period of time over which a witness must have been acquainted with one for whom commitment is sought before the witness may function as an acquaintance witness under the…”
Ariz. Rev. Stat. § 36-539(C): 13 cases
In Re Mh2010-002637, 263 P.3d 82 (Ariz. Ct. App. 2011).
“4 When we consider the state’s strong public policy to have the patient attend the civil commitment hearing, as articulated in A.R.S. § 36-539, we see no reason why it is not also in the petitioner’s interest to allow a patient, who otherwise could not attend, to appear…”
In re MH 2007-001264, 189 P.3d 1111 (Ariz. Ct. App. 2008).
“After oral argument the court stated that although her argument was legally correct, the relief Patient was requesting would only delay the proceeding as both the hospital and Patient were ready to proceed with the hearing at that time.”
In re MH 2006-000749, 152 P.3d 1201 (Ariz. Ct. App. 2007).
“4 ¶ 16 Appellant argues that the statute’s mandate that the patient “shall be present” requires that an involuntary treatment hearing may not take place without the presence of the patient, and that the superior court’s decision in this case to go forward in her absence…”
In re MH 2007-001275, 196 P.3d 819 (Ariz. Ct. App. 2008).
“However, the effect of the stipulation is at issue because of the nature of the 539 hearing and the lack of any evidence on the record that Appellant voluntarily, knowingly and intelligently had agreed to waive his rights to a contested hearing.”
In Re Mh Xxxx-Xxxxxx, 196 P.3d 819 (Ariz. Ct. App. 2008).
“However, the effect of the stipulation is at issue because of the nature of the 539 hearing and the lack of any evidence on the record that Appellant voluntarily, knowingly and intelligently had agreed to waive his rights to a contested hearing.”
Ariz. Rev. Stat. § 36-539(D): 7 cases
Ariz. Rev. Stat. § 36-539(E): 3 cases
In Re Jesse M., 170 P.3d 683 (Ariz. Ct. App. 2007).
“¶ 14 Finally, as noted above, section 36-539 outlines the hearing procedure and the role of the patient’s lawyer.”
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