THE SENATE	S.B. NO.	310
TWENTY-SEVENTH LEGISLATURE, 2013		S.D. 2
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO MENTAL HEALTH TREATMENT.

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

     SECTION 1.  The legislature finds that:

     (1)  Hawaii has identified serious problems of high incarceration and hospitalization rates of those with severe mental illness;

     (2)  Assisted community treatment provides an opportunity for people with serious mental illness to be treated in the least restrictive setting; and

     (3)  Assisted community treatment reduces the trend towards criminalizing mental illness.

     Individuals with severe mental illness often cycle between homelessness, emergency room treatment, incarceration, and hospitalization.  This situation reflects a failure to provide needed treatment to persons who may need it most and that treatment is extremely costly; however, the legislature finds that the situation can be mitigated if individuals are assisted in being treated in the community.

     In several states that have implemented assisted community treatment similar to this Act, research shows that hospitalization rates have dropped by half, the length of hospital stays has been reduced by up to thirty days per patient, arrest rates have declined by up to two-thirds, and days spent in correctional confinement facilities have been reduced by seventy-two per cent.  Moreover, patients in one state program, despite having violent histories, were found to be four times less likely to perpetrate serious violence after being in an assisted community treatment program.

     The purpose of this Act is to establish an assisted community treatment program.

     SECTION 2.  Section 334-1, Hawaii Revised Statutes, is amended by amending the definition of "obviously ill" to read as follows:

     "Obviously ill" means [a condition in which a person's current behavior and previous history of mental illness, if known, indicate a disabling mental illness, and the person is incapable of understanding that there are serious and highly probable risks to health and safety involved in refusing treatment, the advantages of accepting treatment, or of understanding the advantages of accepting treatment and the alternatives to the particular treatment offered, after the advantages, risks, and alternatives have been explained to the person.] that a person is incapable of making an informed medical decision and has behaved in such a manner as to indicate that the person is unlikely, without supervision and assistance of others, to satisfy the person's need for either nourishment, personal or medical care, shelter, or self-protection and safety, so that it is probable that substantial bodily harm, significant psychiatric deterioration or debilitation, or serious illness will result unless adequate treatment is afforded."

     SECTION 3.  Section 334-121, Hawaii Revised Statutes, is amended to read as follows:

"§334-121  Criteria for [involuntary outpatient] assisted community treatment.  A person may be ordered to obtain [involuntary outpatient] assisted community 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 of surviving] unlikely to live safely in the community [with] without available supervision [from family, friends, or others;] based on the professional opinion of a psychiatrist; 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 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,] condition, 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 self or others[;] or obviously ill; and

(5) The person has a history of lack of adherence to treatment for mental illness or substance abuse that includes the following examples:

(A) At least twice within the last thirty-six months, the lack of adherence to treatment has been a significant factor in:  law enforcement being called in response to the person's behavior and in meeting the criteria for involuntary transportation to a hospital for psychiatric evaluation; necessitating hospitalization in a facility providing inpatient treatment; or treatment by a forensic or other mental health or substance abuse unit of a correctional facility or a local correctional facility; or

(B) The lack of adherence to treatment has resulted in one or more acts of serious violent behavior toward self or others or threats, or acts of serious physical harm to self or others within the last forty-eight months;

    [(5)] (6)  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)] (7)  There is a reasonable prospect that the [outpatient] assisted community treatment ordered will be beneficial to the person[.] as the least restrictive alternative."

     SECTION 4.  Section 334-122, Hawaii Revised Statutes, is amended to read as follows:

"[[]§334-122[]]  Definitions.  For the purposes of this part:

     ["Outpatient] "Assisted community treatment" includes medication specifically authorized by court order; individual or group therapy; day or partial day programming activities; services and training, including educational and vocational activities; supervision of living arrangements; and any other services prescribed to either alleviate the person's disorder or disability, [to] maintain or maximize semi-independent functioning, or [to] prevent further deterioration that may reasonably be predicted to result in the need for hospitalization[.] or more intensive or restrictive levels of care in the community or incarceration for criminal behavior.

"Community" includes any location where an individual may receive behavioral health services, including but not limited to hospitals and emergency rooms, correctional facilities, state contracted or private behavioral health programs, independent living, community health centers, and crisis or homeless shelters and programs.

"Designated mental health program" includes a state-operated or privately-contracted provider who is authorized to provide mental health services including but not limited to:  inpatient treatment, outpatient treatment, case management, day treatment, crisis services, or adult mental health division community mental health centers.

"Interested party" means a parent, grandparent, spouse, sibling, adult child, reciprocal beneficiary, civil union partner, service provider, case manager, outreach worker, or mental health professional.

     ["Outpatient treatment psychiatrist" means the psychiatrist who is responsible for the management and supervision of a person's outpatient treatment under order of the court.]

     "Subject of the order" means a person who has been ordered by the court to obtain [outpatient] assisted community treatment.

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

"Treating psychiatrist" means the psychiatrist who is responsible for the management and supervision of a person's treatment under order of the court."

     SECTION 5.  Section 334-123, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

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

     (1)  Each of the criteria numbered (1) through [(6)] (7) for [involuntary outpatient] assisted community 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)] (7) 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)] (7) 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 hearing on the petition need not be limited to the facts stated in the petition.

     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), and (7), but all [six] seven criteria will be addressed at the hearing."

     SECTION 6.  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 outpatient] assisted community treatment is [authorized;] being considered;

     (2)  A copy of the petition; and

     (3)  Notice that the subject of the petition is [entitled] required 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.] unless the subject of the petition chooses to be represented by an attorney of the subject's choice."

     SECTION 7.  Section 334-126, Hawaii Revised Statutes, is amended by amending subsections (g) and (h) to read as follows:

     "(g)  No subject of the petition shall be ordered to receive [involuntary outpatient] assisted community treatment unless at least one psychiatrist testifies in person at the hearing who has personally [examined] assessed the subject within the time period commencing [five] ten 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 outpatient] assisted community treatment, [the recommended outpatient] provide a written treatment[,] plan, which shall include non-mental health treatment, and provide the rationale for the recommended  [outpatient] treatment[.], and identify the provider or organization responsible for the coordination of care.

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

     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] forty-eight hours.  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 outpatient treatment.]

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

     (h)  The subject of the petition may secure [one or more] a psychiatric [examinations] examination and present the findings as evidence at the hearing.  The subject shall be entitled to a psychiatric examination at a community mental health center if the subject so desires, and if an examination has not already been conducted at a community mental health center which will lead to psychiatric testimony at the hearing."

     SECTION 8.  Section 334-127, Hawaii Revised Statutes, is amended to read as follows:

"[[]§334-127[]]  Disposition.  (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 outpatient] assisted community 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 outpatient] assisted community treatment, the family court shall order the subject to obtain [outpatient] assisted community 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 recommended [medication(s)] medication outweigh the detrimental mental and physical effects, if any, the order may authorize types or classes of [medication(s)] medication to be included in [outpatient] treatment [in] at the discretion of the [outpatient treatment] treating psychiatrist.

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

The court order shall also apply to the subject in the event that the subject changes the setting of treatment.

     (c)  The family court shall also designate on the order the [outpatient treatment] treating psychiatrist who is to be responsible for the management and supervision of the subject's [outpatient] treatment, or shall [designate] assign an administrator of a [community] designated mental health [center] program to, in turn, designate [such an outpatient treatment] the treating psychiatrist during the treatment period without court approval, and may designate either a publicly employed psychiatrist, or a private psychiatrist, provided that the private psychiatrist shall agree to the designation.

(d)  Nothing in this section shall preclude the subject's stipulation of continuing an existing court order."

     SECTION 9.  Section 334-128, Hawaii Revised Statutes, is amended to read as follows:

"[[]§334-128[]]  Treatment costs and fees.  Private treatment pursuant to the court order shall be at the expense of the subject of the petition, except to the extent such charges are covered by other laws or programs.  Treatment through a [community] designated mental health [center] program shall be pursuant to its fee schedules; however, the subject of the order shall not be denied treatment by a [community] designated mental health [center] program for failure to pay [such] the fees."

     SECTION 10.  Section 334-129, Hawaii Revised Statutes, is amended to read as follows:

"[[]§334-129[]]  Failure to comply with [outpatient] assisted community treatment.  (a)  [An outpatient treatment] A treating psychiatrist may prescribe or administer to the subject of the order reasonable and appropriate medication[,] or medications, if specifically authorized by the court order, and treatment which is consistent with accepted medical standards and the family court order.

     (b)  No subject of the order shall be physically forced to take medication [or forcibly detained for treatment] under a family court order for [involuntary outpatient treatment.] assisted community treatment, unless the subject is hospitalized or placed in a correctional facility subsequent to the date of the assisted community treatment order for failure to comply with the order of the court.

The subject of the order may be forcibly detained for transport by a police officer or other law enforcement officer to a designated mental health program for the purposes of implementation of the assisted community treatment order.  A service provider or other interested party may also transport the subject of the order so long as the subject does not object.

     (c)  The [outpatient treatment] treating psychiatrist or psychiatrist's designee shall make all reasonable efforts to solicit the subject's compliance with the prescribed treatment.  If the subject fails or refuses to comply after the efforts to solicit compliance, the [outpatient treatment] treating psychiatrist shall so notify the court and may submit a petition under part IV for the involuntary hospitalization of the subject, provided that the refusal of treatment shall not constitute evidence toward any of the criteria for involuntary hospitalization."

     SECTION 11.  Section 334-130, Hawaii Revised Statutes, is amended to read as follows:

"[[]§334-130[]]  Discharge.  [An outpatient] A subject of assisted community treatment is automatically and fully discharged at the end of the family court ordered period of [outpatient] treatment, a period of not more than 180 days, unless a new family court order has been obtained [as provided hereinbelow]."

     SECTION 12.  Section 334-131, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "[[](a)[]  An outpatient treatment] A treating psychiatrist shall commence the early discharge procedure for a subject of the order if the [outpatient treatment] treating psychiatrist finds that the subject no longer meets the criteria for [involuntary outpatient] assisted community treatment.

     The [outpatient treatment] treating psychiatrist shall send to the clerk of the family court which issued the order for [involuntary outpatient] assisted community 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 to the persons whom the family court order specified are entitled thereto, a notice of intent of early discharge.  The notice of intent of early discharge shall be mailed at least five days prior to the intended date of discharge."

     SECTION 13.  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 for [involuntary outpatient] assisted community 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 outpatient] assisted community treatment, the family court shall dismiss the objection and order the early discharge of the subject."

     SECTION 14.  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 outpatient] assisted community treatment ordered by the family court, any person, including [an outpatient treatment] a treating psychiatrist, may file a petition with the family court for an order of continued [involuntary outpatient] assisted community treatment.  The petition shall be filed and notice provided in the same manner as 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 outpatient] assisted community treatment for not more than [180 days] one year after the date of the hearing pursuant to this section.

Nothing in this section shall preclude the subject's stipulation of continuing an existing court order.

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

     SECTION 15.  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 outpatient] assisted community treatment during the period of [outpatient] community treatment [if more than] after sixty days [after] from 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 outpatient] assisted community treatment."

     SECTION 16.  Section 334-141, Hawaii Revised Statutes, is amended by amending the definition of "outpatient treatment" to read as follows:

     "["Outpatient treatment" includes] "Community services" includes any substance abuse or mental health treatment provided through individual or group therapy, a hospital, day or partial day programs, [and] intensive day treatment [and which does not require the individual to reside on a twenty-four-hour basis in the facility for more than three days to], residential programs or inpatient units, or a mental health unit in a correctional facility where the individual may benefit from the treatment program."

     SECTION 17.  Chapter 334, part VIII, Hawaii Revised Statutes, is amended by amending its title to read as follows:

"PART VIII.  [INVOLUNTARY OUTPATIENT] ASSISTED COMMUNITY TREATMENT"

     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.

Report Title:

Mental Health; Involuntary Outpatient Treatment; Assisted Community Treatment

Description:

Establishes an assisted community treatment program in lieu of the involuntary outpatient treatment program.  Replaces the term "involuntary outpatient treatment" with "assisted community treatment".  Makes several amendments regarding involuntary outpatient treatment procedures.  (SD2)

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