HB1006 HD1

Report Title:

Involuntary Medication

Description:

Authorizes DOH to adopt rules to establish an administrative process allowing involuntary medication of psychiatric patients institutionalized at the Hawaii state-operated or funded psychiatric facility in order to alleviate mental illness and restore competency while protecting the rights of patients. (HB1006 HD1)

HOUSE OF REPRESENTATIVES	H.B. NO.	1006
TWENTY-THIRD LEGISLATURE, 2005		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO INVOLUNTARY PSYCHIATRIC TREATMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

PART I

SECTION 1. The legislature finds that mental health patients deserve the same degree of personal autonomy as other citizens when they receive services. This includes participating in the decision-making process regarding their treatment. However, there are very limited circumstances when involuntary treatment is appropriate for a very small subset of people with mental illness, and then only if the person is at imminent risk of danger to themselves or others.

The purpose of this Act is to authorize the department of health to adopt administrative rules to establish an administrative process allowing involuntary medication of certain psychiatric patients institutionalized at the Hawaii state hospital to alleviate mental illness and restore competency while protecting the rights of patients.

SECTION 2. Chapter 334, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

"§334- Involuntary treatment with psychiatric medication. (a) The department shall adopt rules in accordance with chapter 91 to enable interdisciplinary clinical review panels to authorize the involuntary administration of psychiatric medication for appropriate patients committed to:

(1) The state-operated or funded psychiatric facility for involuntary hospitalization pursuant to this chapter;

(2) The state-operated or funded psychiatric facility for examination with respect to physical or mental disease, disorder, or defect pursuant to section 704-404;

(3) The custody of the director and placed in the state-operated or funded psychiatric facility for detention, care, and treatment pursuant to section 704-406;

(4) The custody of the director and placed in the state-operated or funded psychiatric facility for custody, care, and treatment pursuant to section 704-411; or

(5) The custody of the director and placed in the state-operated or funded psychiatric facility pursuant to section 704-413(3).

(b) The rules shall:

(1) Permit involuntary administration of psychiatric medication only when medically appropriate:

(A) And essential for the safety of the individual or the safety of others, after considering less intrusive alternatives; or

(B) In the case of individuals placed in the state-operated or funded psychiatric facility pursuant to sections 704-404 or 704-406, when treatment is necessary to restore fitness to proceed with prosecution; and

(2) Include an appeals process to a second body, appointed by the director, whose decision shall be deemed the final administrative decision.

(d) The administrative process established under the rules adopted under subsection (a) shall not be construed as a contested case under chapter 91."

SECTION 3. Section 334E-2, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any patient in a psychiatric facility shall be afforded rights; and any psychiatric facility shall provide the rights to all patients; provided that when a patient is not able to exercise the patient’s rights, the patient’s legal guardian or legal representative shall have the authority to exercise the same on behalf of the patient. The rights shall include, but not be limited to, the following:

(1) Access to written rules and regulations with which the patient is expected to comply;

(2) Access to the facility’s grievance procedure or to the department of health as provided in section 334-3;

(3) Freedom from reprisal;

(4) Privacy, respect, and personal dignity;

(5) A humane environment;

(6) Freedom from discriminatory treatment based on race, color, creed, national origin, age, and sex;

(7) A written treatment plan based on the individual patient;

(8) Participation in the planning of the patient’s treatment plan;

(9) Refusal of treatment except in emergency situations or where a court order or administrative authorization pursuant to section 334- exists;

(10) Refusal to participate in experimentation;

(11) The choice of physician if the physician chosen agrees;

(12) A qualified, competent staff;

(13) A medical examination before initiation of non-emergency treatment;

(14) Confidentiality of the patient’s records;

(15) Access to the patient’s records;

(16) Knowledge of rights withheld or removed by a court or by law;

(17) Physical exercise and recreation;

(18) Adequate diet;

(19) Knowledge of the names and titles of staff members with whom the patient has frequent contact;

(20) The right to work at the facility and fair compensation for work done; provided that work is available and is part of the patient’s treatment plan;

(21) Visitation rights, unless the patient poses a danger to self or others; provided that where visitation is prohibited, the legal guardian or legal representative shall be allowed to visit the patient upon request;

(22) Uncensored communication;

(23) Notice of and reasons for an impending transfer;

(24) Freedom from seclusion or restraint, except:

(A) When necessary to prevent injury to self or others; [or]

(B) When part of the treatment plan; or

(25) Disclosure to a court, at an involuntary civil commitment hearing, of all treatment procedures which have been administered prior to the hearing;

(26) Receipt by the patient and the patient’s guardian or legal guardian, if the patient has one, of this enunciation of rights at the time of admission."

SECTION 4. The department of health shall submit a report on the operation and effect of this Act to the legislature at least twenty days prior to the convening of the 2008 regular session.

PART II

SECTION 5. The legislature finds that mental health patients committed civilly of pursuant to the provisions of the Hawaii Penal Code to Department of Health operated or funded facilities and to the custody of the director of health (hereinafter "mental health patients") are entitled to participate in treatment decisions including decisions about psychotropic medications. The legislature finds, also, that the department of health has the responsibility to maintain safe inpatient environments for mental health patient and the hospital staff who provide inpatient service for them. Concomitant with that responsibility, the department of health needs judicial authorization to administer involuntarily psychotropic medication to committed patients who refuse such medication and pose a danger to themselves or other person. In such cases, the judiciary is called upon to balance the due process rights of the mental health patient to refuse treatment with psychotropic medication with the legitimate state interest in safeguarding civilly and criminally committed mental health patients and the hospital staff members who treat them.

The purpose of this Act is to authorize and provide a streamlined judicial process by which the department of health seeks a court order allowing involuntary medication of mental health patients to ensure safety in state operated an funded psychiatric inpatient facilities.

SECTION 6. Chapter 334, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§334- Expedited court hearings and decisions; involuntary medication motions. The director of health may apply for judicial authorization for the involuntary administration of psychotropic medication of a patient civilly committed pursuant to the provisions of chapter 334, part IV, to an inpatient state operated or funded psychiatric facility; or, a patient committed to a hospital, or to the custody of the director of health pursuant to the provisions of chapter 704 by filing an appropriate motion in the civil commitment proceeding concerning, or pending criminal action against the patient. Upon the filing of the motion the court shall:

(1) In a civil commitment proceeding pursuant to chapter 334, part IV, schedule a hearing before the court on the involuntary medication motion to begin immediately after entry of the order for civil commitment; or

(2) In cases in which the involuntary medication motion is filed during the civil commitment period, schedule a hearing to commence no sooner than the third calendar day after service or notice of the hearing; or

(3) In a criminal action pursuant to chapter 704, refer the motion to a master who shall conduct a fact finding hearing to commence no sooner that the third calendar day after service of notice of the hearing, which hearing shall be conducted at the psychiatric facility in which the defendant is in confined.

Pursuant to rules established by the judiciary, the chief administrative judge of each judicial circuit shall appoint at least one qualified person to serve as a master in involuntary medication motions in criminal actions originating in the judicial circuit. The master shall be a licensed Hawaii attorney in good standing with training and experience in the litigation of criminal actions, forensic mental health, and treatment of mental illnesses with psychotropic medication.

Within twenty-four hours after the conclusion of the hearing on the involuntary medication motion, the master shall file with the court and provide to counsel for the state, the department of health, and the defendant the master's report of factual findings and recommended order for consideration by the presiding judge in the criminal action. The master may require the movant to submit a form of findings of fact, conclusions of law and order at the close of the hearing. The presiding judge shall issue and order adoption or rejection the master's report and recommended order no later than forty-eight hours after filing. The presiding judge's order shall be served immediately upon the defendant, the medical director of the psychiatric facility, counsel for the state, counsel of the department of health, counsel for the defendant, and upon any other person or entity notified of the hearing of the involuntary medication motion.

Pursuant to rules established by the judiciary, the master shall be compensated for services rendered and cost incurred pursuant to the appointing order. The department of health shall pay for the services and cost of the master."

SECTION 7. Chapter 334, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§334- Continued involuntary administration of psychotropic medication; post emergency and pending court decisions. In cases where involuntary administration of psychotropic medication is commenced in response to an emergency, the treating psychiatrist shall be authorized to continue involuntary administration of psychotropic medication for seventy-two hours. After the seventy-two hour period, the treating psychiatrist shall be authorized to continue involuntary administration of psychotropic medication provided:

(1) The medical director of the psychiatric facility concurs with the treating psychiatrist that the involuntary administration of psychotropic medication should continue; and

(2) The treating psychiatrist files with the appropriate court a motion for authorization of involuntary administration of psychotropic medication pursuant to the provisions of 334- prior to the end of the seventy-two hour period. In such event, the treating psychiatrist may continue involuntary administration of psychotropic medication until the disposition of the motion for authorization of involuntary treatment with psychotropic medication. If, during this period, the treating psychiatrist is able to obtain informed consent from the patient for continuing administration of psychotropic medication, the psychiatrist will immediately notify the court that the motion for involuntary administration has become moot.

If any provision of this bill, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of this bill which can be given effect without the invalid provision or application, and to this end the provisions of this bill are severable."

SECTION 8. Statutory material to be repealed is bracketed

and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2020.