THE SENATE

S.B. NO.

1124

THIRTIETH LEGISLATURE, 2019

S.D. 2

STATE OF HAWAII

H.D. 1

 

 

 

 

 

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 Act 221, Session Laws of Hawaii 2013 (Act 221), was enacted with the intent of helping individuals with serious mental illness obtain the treatment and medication they needed, through the concept of "assisted community treatment."  Five years later, however, the potential of assisted community treatment is no closer to reality.  Less than ten orders for court-mandated treatment plans have been issued during the past five years.

     In the statement of findings and purpose of Act 221, the legislature found that the State had "identified serious problems of high incarceration and hospitalization rates of those with severe mental illness" and that the circumstances reflected "a failure to provide needed treatment to persons who may need it most and that failure is extremely costly."  These findings remain true today.

     The purpose of this Act is to clarify the petitions, procedures, and hearings for involuntary hospitalization and assisted community treatment to promote mental health treatment.

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

     ""Dangerous to self" means the person recently has:

     (1)  Threatened or attempted suicide or serious bodily harm; 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, including treatment for a mental illness, shelter or self-protection, so that it is probable that death, substantial bodily injury, or serious physical debilitation or disease will result unless adequate treatment is afforded."

     SECTION 3.  Section 334-60.3, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

     "(c)  The petition shall include the name, address, and telephone number of at least one of the following persons in the following order of priority:  the subject of the petition's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed.  If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent, adult children, or legal guardian, or if none can be found, [notice shall be served on] the petition shall include the name, address, and telephone number of at least one of the subject's closest adult relatives, if any can be found."

     SECTION 4.  Section 334-60.5, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

     "(e)  The attorney general, the attorney general's deputy, special deputy, or appointee shall present the case for hearings convened under this chapter[, except]; provided that [the]:

     (1)  The attorney general, the attorney general's deputy, special deputy, or appointee need not participate in or be present at a hearing whenever a petitioner or some other appropriate person has retained private counsel who will be present in court and will present to the court the case for involuntary hospitalization[.]; and

     (2)  The attorney general, attorney general's deputy, special deputy, or appointee need not present a case the attorney general, attorney general's deputy, special deputy, or appointee has determined to lack merit."

     SECTION 5.  Section 334-60.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  [For civil commitments that do not result directly from legal proceedings under chapters 704 and 706, when] When the administrator or attending physician of a psychiatric facility contemplates discharge of an involuntary patient, the administrator or attending physician [may] shall assess whether an assisted community treatment plan is indicated pursuant to section 334-123 and, if so indicated, [may communicate with an aftercare provider as part of discharge planning, as appropriate.] a licensed psychiatrist or advanced practice registered nurse of the facility shall prepare the certificate specified by section 334-123(b), and shall notify the department of the attorney general, which shall assist with the petition for assisted community treatment and the related court proceeding.  The facility may notify another mental health program for assistance with the coordination of care in the community."

     SECTION 6.  Section 334-121, Hawaii Revised Statutes, is amended to read as follows:

     "§334-121  Criteria for assisted community treatment.  A person may be ordered to obtain assisted community treatment if the family court finds, based on the professional opinion of a psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization, that:

     (1)  The person is mentally ill or suffering from substance abuse;

     (2)  The person is unlikely to live safely in the community without available supervision [based on the professional opinion of a psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization;], is now in need of treatment in order to prevent a relapse or deterioration that would predictably result in the person becoming imminently dangerous to self or others, and 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;

    [(3)  The person, at some time in the past:  (A) has received inpatient hospital treatment for mental illness or substance abuse or (B) has been found to be imminently dangerous to self or others, as a result of mental illness or substance abuse;

     (4)  The person, based on the person's treatment history and current 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;

     (5)  The person has a history of a lack of adherence to treatment for mental illness or substance abuse, and 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;

     (6)  The assisted community treatment is medically appropriate, and in the person's medical interests; and

     (7)] (3)  The person's mental illness has caused that person to refuse needed and appropriate mental health services in the community, and the person has a history of lack of adherence to treatment for mental illness or substance abuse, that resulted in the person becoming dangerous to self or others, and that now would predictably result in the person becoming imminently dangerous to self or others; and

     (4)  Considering less intrusive alternatives, assisted community treatment is essential to prevent the danger posed by the person[.], is medically appropriate, and is in the person's medical interests."

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

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

     (1)  Each of the criteria under section [334‑121(1) through (7)] 334-121 for assisted community treatment;

     (2)  Petitioner's good faith belief that the subject of the petition meets each of the criteria under section [334-121(1) through (7);] 334-121;

     (3)  Facts that support the petitioner's good faith belief that the subject of the petition meets each of the criteria under section [334-121(1) through (7);] 334‑121; 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[.] but need not be sworn to before a notary public.

     The attorney general, the attorney general's deputy, special deputy, or appointee designated to present the case shall assist the interested party to state the substance of the petition in plain and simple language.

     (b)  The petition may be accompanied by a certificate of a licensed psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization who has examined the subject of the petition within [twenty] two calendar days prior to the filing of the petition.  For purposes of the petition, an examination shall be considered valid so long as the licensed psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization has obtained enough information from the subject of the petition to reach a diagnosis of the subject of the petition, and to express a professional opinion concerning the same, even if the subject of the petition is not fully cooperative.  If the petitioner believes that further evaluation is necessary before treatment, the petitioner may request further evaluation."

     SECTION 8.  Section 334-126, Hawaii Revised Statutes, is amended to read as follows:

     "§334-126  Hearing on petition.  (a)  The court shall adjourn or continue a hearing for failure to timely notify a person entitled to be notified unless the court determines that the interests of justice require that the hearing continue without adjournment or continuance.

     (b)  The time and form of the procedure incident to hearing the issues in the petition shall be provided by family court rule and consistent with this part.

     (c)  Hearings may be held at any convenient place within the circuit.  The subject of the petition, any interested party, or the family court upon its own motion may request a hearing in another court because of inconvenience to the parties, witnesses, or the family court or because of the subject's physical or mental condition.

     (d)  The hearing shall be closed to the public, unless the subject of the petition requests otherwise.  Individuals entitled to notice are entitled to be present in the courtroom for the hearing and to receive a copy of the hearing transcript or recording, unless the court determines that the interests of justice require otherwise.

     (e)  The subject of the petition shall be present at the hearing.  However, if the subject has been served with the petition and does not appear at the hearing, the court may appoint a guardian ad litem to represent the best interests of the subject through the proceedings.

     (f)  The attorney general, the attorney general's deputy, special deputy, or appointee shall present the case; provided that:

     (1)  The attorney general, the attorney general's deputy, special deputy, or appointee need not participate in or be present at a hearing whenever a petitioner or some other appropriate person has retained private counsel who will be present in court and will present to the court the case for assisted community treatment; and

     (2)  The attorney general, attorney general's deputy, special deputy, or appointee need not present a case the attorney general, attorney general's deputy, special deputy, or appointee has determined to lack merit.

     [(f)] (g)  Notwithstanding chapter 802 to the contrary, the public defender or other court-appointed counsel shall represent the subject upon filing of the petition.  A copy of the petition shall be served upon the public defender by the petitioner.  The public defender or the court-appointed counsel may withdraw upon a showing that the subject is not indigent.  If the subject does not desire representation, the court may discharge the attorney after finding that the subject understands the proceedings and the relief prayed for in the petition.  Nothing in this subsection shall be construed to:

     (1)  Require the subject of the petition to accept legal representation by the public defender or other court-appointed counsel; or

     (2)  Prevent the subject of the petition from obtaining their own legal counsel to represent them in any proceeding.

     [(g)] (h)  If the subject of the petition is represented by an attorney, the attorney shall be allowed adequate time for investigation of the matters at issue and for preparation, and shall be permitted to present the evidence that the attorney believes necessary for a proper disposition of the proceeding.

     [(h)] (i)  No subject of the petition shall be ordered to receive assisted community treatment unless at least one psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization testifies in person at the hearing who has personally assessed the subject, within a reasonable time before the filing of the petition up to the time when the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization provides oral testimony at court.  The testimony of the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall state the facts which support the allegation that the subject meets all the criteria for assisted community treatment, provide a written treatment plan, which shall include non-mental health treatment if appropriate, provide the rationale for the recommended treatment, and identify the designated mental health program responsible for the coordination of care.

     If the recommended assisted community treatment includes medication, the testimony of the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall describe the types or classes of medication which should be authorized, and describe the physical and mental beneficial and detrimental effects of such medication.

     [(i)] (j)  The subject of the petition may secure a psychiatric 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 9.  Section 334-127, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  If after hearing all relevant evidence, including the results of any diagnostic examination ordered by the family court, the family court finds that the criteria for assisted community treatment under section 334-121(1) have been met beyond a reasonable doubt and that the criteria under section 334-121(2) to [334-121(7)] 334-121(4) have been met by clear and convincing evidence, the family court shall order the subject to obtain assisted community treatment for a period of no more than one year.  The written treatment plan submitted pursuant to section [334-126(h)] 334-126(i) shall be attached to the order and made a part of the order.

     If the family court finds by clear and convincing evidence that the beneficial mental and physical effects of recommended medication outweigh the detrimental mental and physical effects, if any, the order may authorize types or classes of medication to be included in treatment at the discretion of the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization.

     The court order shall also state who should receive notice of intent to discharge early in the event that the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization determines, prior to the end of the court ordered period of treatment, that the subject should be discharged early from assisted community treatment.

     Notice of the order shall be provided to those persons entitled to notice pursuant to section 334-125."

     SECTION 10.  Section 334-129, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  A treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization 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 that is consistent with accepted medical standards and the family court order, including the written treatment plan submitted pursuant to section [334-126(h).] 334-126(i)."

     SECTION 11.  Section 802-1, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  Except as provided in section [334-126(f),] 334-126(g), the appearance of the public defender in all judicial proceedings shall be subject to court approval."

     SECTION 12.  Section 802-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Except as provided in section [334-126(f),] 334-126(g) when it shall appear to a judge that a person requesting the appointment of counsel satisfies the requirements of this chapter, the judge shall appoint counsel to represent the person at all stages of the proceedings, including appeal, if any. If conflicting interests exist, or if the interests of justice require, the court may appoint private counsel, who shall receive reasonable compensation for necessary expenses, including travel, the amount of which shall be determined by the court, and reasonable fees pursuant to subsection (b). All expenses and fees shall be ordered by the court. Duly ordered payment shall be made upon vouchers approved by the director of finance and warrants drawn by the comptroller."

     SECTION 13.  There is appropriated out of the general revenues of the State of Hawaii the sum of $         or so much thereof as may be necessary for fiscal year 2019-2020 and the sum of $         or so much thereof as may be necessary for fiscal year 2020-2021 for the establishment and appointment of two deputy attorneys general and support staff to assist with petitions for assisted community treatment.

     The sums appropriated shall be expended by the department of the attorney general for the purposes of this Act.

     SECTION 14.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 15.  This Act shall take effect on March 15, 2050.

 

Report Title:

Mental Health; Petitions; Procedures; Appropriation

 

Description:

Requires the administrator or attending physician to assess whether an assisted community treatment plan is indicated and to make certain arrangements if so indicated.  Specifies the role of the AG for petitions of involuntary hospitalizations and assisted community treatments.  Amends the criteria for assisted community treatment.  Makes conforming amendments.  Appropriates funds.  (SB1124 HD1)

 

 

 

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