Requires the director of health to hold a person found unfit to proceed in a criminal proceeding or acquitted by reason of physical or mental disease, disorder, or defect at a level of custody sufficient to prevent escape if the person refuses to take prescribed antipsychotic medication.

A BILL FOR AN ACT

SECTION 1. The legislature finds that certain individuals who are charged with a criminal offense suffer from a physical or mental disease, disorder, or defect that may render them unfit to proceed or not penally responsible for their actions, or both. Some of these individuals are committed to the custody of the director of health and are prescribed antipsychotic or other medications to treat their illness. While taking their medication, the person may be well enough to be held at a low level of custody. However, if the person refuses to take the prescribed medication, the illness may return, and the person may attempt to escape and succeed in doing so because the person was held at a lower level of custody while still medicated.

The legislature also finds that there exist constitutional and other limitations on the forced medication of persons who refuse voluntarily to take medication prescribed to them. As a result, on numerous occasions, individuals who have stopped taking their medications have escaped from the lower level of custody earned while still on medication, have reoffended, and have been either found unfit to proceed or acquitted of the new offense, and returned to custody, with the cycle repeating itself over and over again. Action is necessary to prevent the escape of committed individuals who have stopped taking their medication.

The purpose of this Act is to require the director of health to hold persons committed to the director's custody pursuant to chapter 704, Hawaii Revised Statutes, at a level of custody appropriate to their willingness to take antipsychotic or other medication prescribed to them.

SECTION 2. Section 704-406, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in section 704-407, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. The director of health shall place a defendant in an environment with restrictions appropriate to the defendant's willingness to take antipsychotic or other medication prescribed to the defendant. If the defendant refuses to take the medication, the director of health shall place the defendant in an environment with restrictions necessary to minimize the risk of danger to the defendant and others, including measures necessary to prevent escape. If the court is satisfied that the defendant may be released on condition without danger to the defendant or to the person or property of others, the court shall order the defendant's release, which shall continue at the discretion of the court, on conditions the court determines necessary. A copy of the report filed pursuant to section 704-404 shall be attached to the order of commitment or order of conditional release."

SECTION 3. Section 704-411, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court [shall], on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall make an order as follows:

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.