THE SENATE	S.B. NO.	968
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO MENTAL HEALTH.

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

     SECTION 1.  The legislature finds that the consequences of untreated mental illness are homelessness, criminalization, suicide, violence, victimization, lost productivity, permanently decreased medication responses, and the incalculable costs of unnecessary suffering.  Due to advances in mental health care in recent years, treatment is now available that can eliminate or substantially alleviate the symptoms of mental illness for most who suffer from it.

     When a diagnosis of any illness is made, most people seek medication, therapy, or helpful guidance back to regain health.  That takes rational thinking, which is often snatched away by mental illness.  When brain chemistry goes wrong, everything changes until that chemical balance is restored.  That is precisely why people with mental illness who are involved with potential criminal activity should be approached, processed, and managed in accordance with their illness.

     Voluntary treatment is always preferable.  However, mental illness is a biologically-based disease that attacks the brain.  As a result, mental illness renders many people incapable of voluntarily entering mental treatment because they are unable to make rational decisions or are unaware that they are ill.  When this occurs, people may require assisted treatment to protect their lives as well as avoid tragic personal and societal consequences.

     The causes of serious mental illness are still unknown, but the effects of serious mental illness remain devastating. People who are suffering from schizophrenia or bipolar disorder often become psychotic and separated from reality.  In this condition, they do not know what they are doing and can become part of a world that is totally different from reality.  As wrong and dangerous as their thoughts may be, those thoughts are true and compelling to them.  Active psychosis is not controllable until stabilization and orientation returns through medication and therapy.  One aspect of psychosis, by definition, is the inability of a person to grasp the harm that the person may be doing to that person's self or others.

     The purpose of this Act is to establish a legal framework for the provision of care to individuals who, due to the symptoms of severe mental illness, become ether dangerous or incapable of making informed medical decisions concerning their treatment.

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

     "§334‑   Reference in penal code to "involuntary outpatient treatment". Any reference to the term "involuntary outpatient treatment" in any section of the Hawaii Penal Code or chapter 802 shall be deemed to refer to "assisted outpatient treatment", and the terms "involuntary outpatient treatment" and "assisted outpatient treatment" shall be considered interchangeable for purposes of the Hawaii Penal Code and chapter 802."

     SECTION 3.  Section 334-122, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

     ""Assisted outpatient treatment" means assisted treatment on an outpatient basis.

"Assisted treatment" means the provision of treatment to individuals who are dangerous or incapable of making informed medical decisions because of the effects of severe mental illness."

     SECTION 4.  Section 334-59, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (a) to read:

     "(a)  Initiation of proceedings.  An emergency admission may be initiated as follows:

     (1)  If a police officer has reason to believe that a person is imminently dangerous to the person's self or others, or is gravely disabled, or is obviously mentally ill, the officer shall call for assistance from the mental health emergency workers designated by the director.  Upon determination by the mental health emergency workers that the person is imminently dangerous to the person's self or others, or is gravely disabled, or is obviously ill, the person shall be transported by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization.  A police officer may also take into custody and transport to any facility designated by the director any person threatening or attempting suicide[.] or self harm.  The officer shall make application for the examination, observation, and diagnosis of the person in custody.  The application shall state or shall be accompanied by a statement of the circumstances under which the person was taken into custody and the reasons therefor which shall be transmitted with the person to a physician or psychologist at the facility.

     (2)  Upon written or oral application of any licensed physician, psychologist, attorney, member of the clergy, health or social service professional, or any state or county employee in the course of employment, a judge may issue an ex parte order orally, but shall reduce the order to writing by the close of the next court day following the application, stating that there is probable cause to believe the person is mentally ill or suffering from substance abuse, is imminently dangerous to the person's self or others, or is gravely disabled, or is obviously mentally ill, and in need of care or treatment, or both, giving the findings on which the conclusion is based, and directing that a police officer or other suitable individual take the person into custody and deliver the person to the nearest facility designated by the director for emergency examination and treatment.  The ex parte order shall be made a part of the patient's clinical record.  If the application is oral, the person making the application shall reduce the application to writing and shall submit the same by noon of the next court day to the judge who issued the oral ex parte order.  The written application shall be executed subject to the penalties of perjury but need not be sworn to before a notary public.

     (3)  Any licensed physician, physician assistant, or psychologist who has examined a person and has reason to believe the person is:

         (A)  Mentally ill or suffering from substance abuse;

         (B)  Imminently dangerous to the person's self or others, or is gravely disabled, or is obviously ill; and

         (C)  In need of care or treatment;

          may direct transportation, by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization.  A licensed physician or physician assistant may administer treatment as is medically necessary, for the person's safe transportation.  A licensed psychologist may administer treatment as is psychologically necessary."

     2.  By amending subsection (d) to read:

     "(d)  Emergency hospitalization.  If the physician or the psychologist who performs the emergency examination has reason to believe that the patient is:

     (1)  Mentally ill or suffering from substance abuse;

     (2)  Imminently dangerous to the patient's self or others, or is gravely disabled, or is obviously ill; and

     (3)  In need of care or treatment, or both;

the physician or the psychologist may direct that the patient be hospitalized on an emergency basis or cause the patient to be transferred to another psychiatric facility for emergency hospitalization, or both.  The patient shall have the right immediately upon admission to telephone the patient's guardian or a family member including a reciprocal beneficiary, or an adult friend and an attorney.  If the patient declines to exercise that right, the staff of the facility shall inform the adult patient of the right to waive notification to the family including a reciprocal beneficiary, and shall make reasonable efforts to ensure that the patient's guardian or family, including a reciprocal beneficiary, is notified of the emergency admission but the patient's family, including a reciprocal beneficiary, need not be notified if the patient is an adult and requests that there be no notification.  The patient shall be allowed to confer with an attorney in private."

     SECTION 5.  Section 334-121, Hawaii Revised Statutes, is amended to read as follows:

     "§334-121  Criteria for [involuntary] assisted outpatient treatment.  A person may be ordered to obtain [involuntary] assisted outpatient treatment if the family court finds that:

     (1)  The person is suffering from a severe mental disorder or from substance abuse; [and]

     (2)  The person is [capable] incapable of surviving safely in the community with available supervision from family, friends, or others; [and]

     (3)  The person, at some time in the past[:  (A) has received inpatient hospital treatment for a severe mental disorder or substance abuse, or (B)] has been imminently dangerous to the person's self or others, or is gravely disabled, as a result of a severe mental disorder or substance abuse; [and]

     (4)  The person, based on the person's treatment history and current behavior, is now in need of treatment in order to prevent a relapse or deterioration which would predictably result in the person becoming imminently dangerous to the person's self or others; [and]

     (5)  The person's current mental status or the nature of the person's disorder limits or negates the person's ability to make an informed decision to voluntarily seek or comply with recommended treatment; and

     (6)  There is a reasonable prospect that the outpatient treatment ordered will be beneficial to the person."

     SECTION 6.  Section 334-122, Hawaii Revised Statutes, is amended by amending the definition of "subject of the petition" to read as follows:

     ""Subject of the petition" means the person who, under a petition filed under section 334-123, is alleged to meet the criteria for [involuntary] assisted outpatient treatment."

     SECTION 7.  Section 334-123, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Any person may file a petition with the family court alleging that another person meets the criteria for [involuntary] assisted outpatient treatment.  The petition shall state:

     (1)  Each of the criteria numbered (1) through (6) for [involuntary] assisted outpatient treatment, as set out in section 334-121;

     (2)  Petitioner's good faith belief that the subject of the petition meets each of criteria numbered (1) through (4) set forth in section 334-121;

     (3)  Facts which support petitioner's good faith belief that the subject of the petition meets each of the criteria numbered (1) through (4) set forth in section 334-121, provided that the hearing on the petition need not be limited to the stated facts; and

     (4)  That the subject of the petition is present within the county where the petition is filed.

     The petition shall be executed subject to the penalties of perjury.  The petition need not express any belief, or state any supporting facts, with reference to the criteria set forth in section 334-121(5) and (6), but all six criteria will be addressed at the hearing."

     SECTION 8.  Section 334-125, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The notice shall include the following:

     (1)  The date, time, place of hearing, a clear statement of the purpose of the hearing and possible consequences to the subject, and a statement of the legal standard upon which [involuntary] assisted outpatient treatment is authorized;

     (2)  A copy of the petition; and

     (3)  Notice that the subject of the petition is entitled to be represented by an attorney, and that the court will appoint a public defender or other attorney for the subject if the subject desires one and is indigent."

     SECTION 9.  Section 334-126, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

     "(g)  No subject of the petition shall be ordered to receive [involuntary] assisted outpatient treatment unless at least one psychiatrist testifies in person at the hearing who has personally examined the subject [within the time period commencing five calendar days before the filing of the petition and ending at the time of the psychiatrist's testimony].  The psychiatrist's testimony shall state the facts which support the allegation that the subject meets all the criteria for [involuntary] assisted outpatient treatment, the recommended outpatient treatment, and the rationale for the recommended outpatient treatment.

     If the recommended outpatient treatment includes medication, the psychiatrist's testimony shall describe the types or classes of [medication(s)] medication or medications which should be authorized, and describe the physical and mental beneficial and detrimental effects of [such medication(s).] medication or medications.

     If the subject of the petition has refused to be examined by a licensed psychiatrist, the family court may request the subject to consent to examination by a psychiatrist appointed by the court or employed at a community mental health center.  If the subject of the petition does not consent and the family court finds sufficient evidence to believe that the allegations in the petition are true, the family court may order the commitment of the subject to a psychiatric facility for examination.  The commitment shall not be for more than [twenty‑four] seventy-two hours[.] unless conditions are met for continuing inpatient commitment.  The examining psychiatrist shall submit the findings and recommendations to the family court.

     The subject of the petition's refusal to submit voluntarily to examination shall be treated as a denial that the subject is suffering from a severe mental disorder or substance abuse, and a denial that the subject otherwise fits within the criteria for a court order of [involuntary] assisted outpatient treatment.

     Nothing herein shall be construed in a way that limits the subject of the petition's privilege against self-incrimination."

     SECTION 10.  Section 334-127, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

     "(a)  If after hearing all relevant evidence, including the results of an examination ordered by the family court, the family court finds that the subject of the petition does not meet the criteria for [involuntary] assisted outpatient treatment, the family court shall dismiss the petition.

     (b)  If after hearing all relevant evidence, including the results of an examination ordered by the family court, the family court finds by clear and convincing evidence that the subject of the petition meets the criteria for [involuntary] assisted outpatient treatment, the family court shall order the subject to obtain outpatient treatment for a period of not more than 180 days.  The order shall also state the outpatient treatment which the subject is to obtain.

     If the court finds by clear and convincing evidence that the beneficial mental and physical effects of the recommended [medication(s)] medication or medications outweigh the detrimental mental and physical effects, if any, the order may authorize types or classes of [medication(s)] medication or medications to be included in outpatient treatment in the discretion of the outpatient treatment psychiatrist.

     The court order shall also state who should receive notice of intent to early discharge the subject in the event that the outpatient treatment psychiatrist determines, prior to the end of the court ordered period of treatment, that the subject should be early discharged from [outpatient involuntary] assisted outpatient treatment."

     SECTION 11.  Section 334-131, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§334-131[]]  Early discharge.  [[](a)[]]  An outpatient treatment psychiatrist shall commence the early discharge procedure for a subject of the order if the outpatient treatment psychiatrist finds that the subject no longer meets the criteria for [involuntary] assisted outpatient treatment[.] and is of the clinical opinion that the subject will not decompensate as a result of early discharge.

     The outpatient treatment psychiatrist shall send to the clerk of the family court which issued the order for [involuntary] assisted outpatient treatment, notification that in the psychiatrist's opinion the subject of the order should be discharged prior to the end of the period specified in the court order.

     The clerk of the court shall then prepare and mail the notice of intent to early discharge the subject to the persons [whom] who are entitled to the notice pursuant to the family court order [specified are entitled thereto, a notice of intent of early discharge].  The notice of intent [of] to early discharge the subject shall be mailed at least five days prior to the intended date of discharge.

     (b)  If no objection is filed under section 334-132 within five days of the mailing of notice, the family court shall enter an order of discharge[, and].  The subject of the order [is] shall thereupon be fully discharged from [involuntary] assisted outpatient treatment and the clerk of the family court shall promptly [so] notify the subject of the order."

     SECTION 12.  Section 334-132, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§334-132[]]  Objection to discharge.  Any person who has received a notice of intent to early discharge a subject of the order may file an objection with the family court.  Upon receipt of an objection, the family court shall hold a hearing on the discharge.  The hearing shall be conducted as provided under section 334-134.

     If the family court finds by clear and convincing evidence that the subject of the order continues to meet the criteria or would meet the criteria if the order is suspended for [involuntary] assisted outpatient treatment, the family court shall order the subject to continue the outpatient treatment for the unexpired period of its earlier order.

     If the family court finds that the subject of the order does not meet the criteria for [involuntary] assisted outpatient treatment[,] and suspension of the order will not result in decompensation of the subject, the family court shall dismiss the objection and order the early discharge of the subject."

     SECTION 13.  Section 334-133, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§334-133[]]  Petition for additional period of treatment; hearing.  Prior to the expiration of the period of [involuntary] assisted outpatient treatment ordered by the family court, any person, including an outpatient treatment psychiatrist, may file a petition with the family court for an order of continued [involuntary] assisted outpatient treatment.  The petition shall be filed and notice provided in the same manner as provided under sections 334-123 and 334-125.

     The family court shall hold a hearing on the petition and make its decision in the same manner as provided under sections 334‑123 to 334-127.  The family court may order the continued [involuntary] assisted outpatient treatment for not more than 180 days after the date of the hearing pursuant to this section.

     This section shall be in addition to the provisions on the objection to discharge."

     SECTION 14.  Section 334-134, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§334-134[]]  Hearing for discharge.  Any person may petition the family court for the discharge of an order of [involuntary] assisted outpatient treatment during the period of outpatient treatment if more than sixty days [after] have transpired since the most recent hearing involving the subject of the order.  The petition shall be filed, notice given, hearing held, and order made in the same manner as provided for the original petition alleging that the subject of the order met the criteria for [involuntary] assisted outpatient treatment."

     SECTION 15.  Chapter 334, Hawaii Revised Statutes, is amended by amending the title to part VIII to read as follows:

"PART VIII.  [INVOLUNTARY] ASSISTED OUTPATIENT TREATMENT"

     SECTION 16.  The department of health shall monitor each individual who requires assisted outpatient treatment.

     SECTION 17.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 18.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 19.  This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

Mental Health

Description:

Amends involuntary outpatient treatment to assisted outpatient treatment.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.