STAND. COM. REP. NO. 674

Honolulu, Hawaii

RE:    S.B. No. 146

       S.D. 2

Honorable Ronald D. Kouchi

President of the Senate

Twenty-Ninth State Legislature

Regular Session of 2017

State of Hawaii

Sir:

     Your Committee on Judiciary and Labor, to which was referred S.B. No. 146, S.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO ORDERS FOR TREATMENT OVER OBJECTION,"

begs leave to report as follows:

     The purpose and intent of this measure is to:

     (1)  Permit an administrative order to overcome a patient's objection to psychiatric treatment; and

     (2)  Establish criteria for treatment over objection and the administrative authorization process for administratively ordering treatment over objection.

     Your Committee received testimony in support of this measure from the Department of Health, Department of Public Safety, and The Queen's Health Systems.  Your Committee received testimony in opposition to this measure from the American Civil Liberties Union of Hawai‘i.  Your Committee received comments on this measure from the Judiciary and Hawaii Disability Rights Center.

     Your Committee finds that it is important for the initiation of treatment for patients admitted to the Hawaii State Hospital, which is used primarily for forensic commitments, to be expedient in order to address patients' psychiatric symptoms, which often generate a risk of safety to the patient and others.  Expedient initiation of treatment will help maintain a safe and secure therapeutic environment for patients and staff, and have a positive impact on patients' length of stay.

     Your Committee further finds that the current method to obtain an authorization to provide treatment over a patient's objection is by a judicial hearing.  The time between petition and judicial hearing is unpredictable and is on average nearly seventeen days.  Your Committee notes that other states have responded to the unpredictability and delay of waiting for court hearings by developing a non-judicial, administrative mechanism to review and authorize requests for treatment over a patient's objection.  This measure recognizes the importance of providing the details of an administrative process for authorizing treatment over a patient's objection and provides guidance for such a process.

     Your Committee recognizes that while involuntary treatment necessarily gives rise to constitutional issues relating to minimum safeguards for due process, your Committee understands that professionals at state psychiatric facilities need to make serious day-to-day decisions with respect to medication for the safety of all patients and facility employees.  Your Committee hopes that as this measure moves through the legislative process, the State and other stakeholders will continue to work together to find a balanced and refined approach so that this process may occur in a timely and fair manner.

     Your Committee has amended this measure by:

     (1)  Adopting language suggested by the Department of Health that:

          (A)  Clarifies treatment over objection is for medical, rather than psychiatric, conditions or symptoms;

          (B)  Deletes from the criteria for treatment over objection references to a patient residing in a special treatment facility;

          (C)  Broadens the scope of treatment from treatment with medication to a proposed treatment that is medically appropriate under the criteria for treatment over objection;

          (D)  Clarifies under the criteria for treatment over objection that the treatment is essential to forestall the danger posed by the patient's condition after considering less intrusive alternatives;

          (E)  Authorizes the Director of Health to order a patient who is in the Director's administrative custody and in a psychiatric facility to order the patient to receive medical treatment over objection through an administrative process;

          (F)  Clarifies the rights a patient is afforded when ordered to receive medical treatment over objection through an administrative process; and

          (G)  Exempts the administrative process for ordering medical treatment over objection from the contested case hearing requirements under chapter 91, Hawaii Revised Statutes;

     (2)  Adopting language suggested by the American Civil Liberties Union of Hawai‘i as a due process safeguard required under the administrative process, which requires a finding that the patient's illness satisfies certain criteria and that lack of treatment alone cannot satisfy the requirement that the patient is dangerous to self or others; and

     (3)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

     As affirmed by the record of votes of the members of your Committee on Judiciary and Labor that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 146, S.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as S.B. No. 146, S.D. 2.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Labor,

________________________________

GILBERT S.C. KEITH-AGARAN, Chair