THE SENATE

S.B. NO.

1179

TWENTY-SEVENTH LEGISLATURE, 2013

S.D. 1

STATE OF HAWAII

H.D. 1

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO COURT ORDERS TO PROVIDE MEDICAL TREATMENT FOR INMATES AND DETAINEES IN CORRECTIONAL FACILITIES.

 

 

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

 

     SECTION 1.  Section 353-13.6, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§353-13.6[]]  Involuntary medical treatment criteria.  An inmate or detainee in the custody of the department may be ordered to receive involuntary medical treatment, including the taking or application of medication, if the court finds that:

     (1)  The inmate or detainee poses a danger of physical harm to self or others;

     (2)  Treatment with medication is medically appropriate; and

     (3)  Considering less intrusive alternatives, treatment is essential to forestall the danger posed by the inmate or detainee.

     For the purposes of this section:

     "Danger of physical harm to others" means likely to cause substantial physical or emotional injury to another, as evidenced by an act, attempt, or threat occurring recently or through a pattern of past behavior that has resulted in the person being placed in a more restricted setting for the safety of others in the facility.

     "Danger of physical harm to self" means the person has recently:

     (1)  Threatened or attempted suicide or serious bodily self injury; or

     (2)  Behaved in such a manner as to indicate that the person is unable, without supervision and the assistance of others, to satisfy the need for nourishment, essential medical care, or self-protection, so that it is probable that death, substantial bodily injury, or serious physical or mental debilitation or disease will result unless adequate treatment is provided."

     SECTION 2.  Section 353-13.7, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§353-13.7[]]  Initiation of proceeding for involuntary medical treatment.  (a)  The director, or the director's designee, may file a petition for involuntary medical treatment alleging that a person in the custody of the department meets the criteria for involuntary medical treatment under section 353-13.6.  The petition shall be executed subject to the penalties of perjury but need not be sworn to before a notary public and shall be filed in the circuit or district court of the circuit or district wherein the person who is the subject of the petition is in custody.  The attorney general, the attorney general's deputy, special deputy, or appointee designated to present the case shall assist the petitioner to state the substance of the petition in plain and simple language.  The petition may be accompanied by an affidavit or declaration of the licensed physician or psychologist who has examined the person within [two] five days prior to submission of the petition, unless the person whose treatment is sought has refused to submit to a medical or psychological examination, in which case the fact of refusal shall be alleged in the petition.  The affidavit or declaration shall set forth the signs and symptoms relied upon by the physician or psychologist to determine whether the person is in need of treatment, whether the person is capable of realizing and making a rational decision with respect to the person's need for treatment, and the recommended treatment.  If the petitioner believes that further evaluation is necessary before treatment, the petitioner may request such further evaluation.

     (b)  If the person has been given an examination, evaluation, or treatment in a psychiatric facility or by the department within five days before the filing of the petition, and treatment is recommended by the staff of the facility or the department, the petition may be accompanied by an affidavit or declaration of the department's medical director or the mental health administrator in lieu of a physician's or psychologist's affidavit[.] or declaration."

     SECTION 3.  Section 353-13.8, Hawaii Revised Statutes, is amended by amending its title and subsections (a) and (b) to read as follows:

     "[[]§353-13.8[]]  Notice; waiver of notice; hearing on petition; waiver of hearing on petition for involuntary hospitalization.  (a)  The court shall set a hearing on the petition, and notice of the hearing shall be served personally on the person who is the subject of the petition, or by certified or registered mail, return receipt requested, deliverable to the addressee only[;], on at least one of the following individuals: the person's spouse[, civil union partner,] or reciprocal beneficiary; legal parents; adult children; [and] legal guardian, if one has been appointed; or the person's emergency contact listed while the person is in the custody of the department.  If the person has no living spouse[, civil union partner,] or reciprocal beneficiary; legal parent; adult children; [or] legal guardian, or emergency contact listed while the person is in the custody of the department, or if none can be found, notice of the hearing shall be served on at least one of the person's closest adult relatives if any can be found.  Notice of the hearing shall also be served on the public defender, person's attorney, or other court-appointed attorney, as the case may be.  If the person is a minor, notice of the hearing shall also be served upon the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition if the person can be found within the State.  Notice shall also be given to the other persons as the court may designate.

     (b)  The notice required by subsection (a) shall include:

     (1)  The date, time, place of hearing, a clear statement of the purpose of the proceedings and of possible consequences to the person who is the subject of the petition, and a statement of the legal standard upon which [commitment] care or treatment is authorized;

     (2)  A copy of the petition;

     (3)  Written notice, in plain and simple language, that the person may waive the hearing by voluntarily agreeing to the care or treatment proposed;

     (4)  A completed form indicating the waiver described in paragraph (3) if the person waived the hearing;

     (5)  Written notice, in plain and simple language, that the person or the person's guardian or representative may apply at any time for a hearing on the issue of the person's need for care or treatment if the person has previously waived a hearing;

     (6)  Notice that the person is entitled to the assistance of an attorney and that the public defender has been notified of these proceedings;

     (7)  Notice that if the person does not want to be represented by the public defender, the person may contact the person's own attorney; and

     (8)  Notice, if applicable, that the petitioner intends to present evidence to show that the person is an incapacitated or protected person, or both, under article V of chapter 560, and whether the appointment of a guardian is sought at the hearing.  If appointment of a guardian is to be recommended, and a nominee is known at the time the petition is filed, the identity of the nominee shall be disclosed."

     SECTION 4.  Section 353-13.9, Hawaii Revised Statutes, is amended as follows:

     1.   By amending its title and subsections (a) to (d) to read:

     "[[]§353-13.9[]]  Hearing on petition.  (a)  The court may adjourn or continue a hearing for failure to timely notify at least one of the following individuals:  a spouse, [civil union partner,] reciprocal beneficiary, legal guardian, relative, the person's legal guardian or emergency contact listed while the person is in the custody of the department, or other person determined by the court to be entitled to notice, or for failure by the person who is the subject of the petition to contact an attorney as provided in section 353-13.8, if the court determines that an adjournment or continuance is in the interest of justice.

     (b)  Unless the hearing is waived, the [judge] court shall hear the petition as soon as possible and no later than ten days after the date the petition is filed unless a reasonable delay is sought for good cause shown by the person who is the subject of the petition, the person's attorney, the petitioner, the guardian or guardian ad litem, or those persons entitled to receive notice of the hearing under section 353-13.8.

     (c)  The person who is the subject of the petition shall be present at all hearings unless the person waives the right to be present, is unable to attend, or creates conditions that make it impossible to conduct the hearing in a reasonable manner as determined by the [judge.] court.  A waiver is valid only upon acceptance by the court following a judicial determination that the person understands the person's rights and is competent to waive them, or is unable to participate.  [If the person is unable to participate, the judge shall appoint a guardian ad litem or a temporary guardian as provided in article V of chapter 560, to represent the person throughout the proceedings.]  At any point during the proceedings and after the filing of the petition, the court may appoint a guardian ad litem or a temporary guardian, as provided in article V of chapter 560, to represent the person throughout the proceedings, if the court finds that the person is unable to participate or that other good cause exists.

     (d)  Hearings may be held at a convenient location within the circuit or district where the person who is the subject of the petition resides or any other circuit or district deemed appropriate by the court.  The person or any interested person may request a hearing in another circuit or district because of convenience to the parties, witnesses, or the court, or because of the person's mental or physical condition."

     2.   By amending subsection (i) to read:

     "(i)  If the court finds that the criteria for involuntary medical treatment under section 353-13.6 have been met by clear and convincing evidence, the court may issue an order to authorize the department to involuntarily medically treat the person for a period of up to one year unless the person is sooner released or sooner determined to no longer be in need of treatment.  If so specified by the court, however, the order may remain in effect if the person who is the subject of the petition is released but returns to custody during the maximum period of the order, if the underlying criminal case is still active, or if the sentence has not been fully served, unless the person is sooner determined to no longer be in need of treatment."

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect upon its approval.

 

Report Title:

Correctional Facilities; Involuntary Medical Treatment

 

 

Description:

Provides for the filing of a petition for involuntary medical treatment in either the district or circuit court; allows for a declaration to be filed with the petition as an alternative to an affidavit; expands the court's ability to continue the hearing on the petition for good cause; gives the court more flexibility in deciding when to appoint a guardian ad litem or temporary guardian; changes the time within which a person must be examined from two days to five days prior to filing of the petition; amends the list of persons who must be notified of the petition; and clarifies the effective expiration date of the order for persons who return to custody after release.  (HD1)

 

 

 

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