REPORT TITLE:
Mental Health


DESCRIPTION:
Allows for involuntary medication of those involuntarily
committed to a psychiatric facility. (SB1032 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           S.D. 1
NINETEENTH LEGISLATURE, 1999                               H.D. 2
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO INVOLUNTARY PSYCHIATRIC TREATMENT.


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

 1      SECTION 1.  Section 334-1, Hawaii Revised Statues, is
 
 2 amended by adding a new definition to be appropriately inserted
 
 3 and to read as follows:
 
 4      ""Competency or competent," as used in Part IV of this
 
 5 chapter, means possession of sufficient understanding or capacity
 
 6 to make a non-delusional decision concerning one's person."
 
 7      SECTION 2.  Section 334-60.3, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "§334-60.3  Initiation of proceeding for involuntary
 
10 hospitalization[.]; petition for involuntary medication.  (a)
 
11 Any person may file a petition for involuntary hospitalization
 
12 alleging that a person located in the county meets the criteria
 
13 for commitment to a psychiatric facility.  The petition shall be
 
14 executed subject to the penalties of perjury but need not be
 
15 sworn to before a notary public.  The attorney general, the
 
16 attorney general's deputy, special deputy, or appointee
 
17 designated to present the case shall assist the petitioner to
 
18 state the substance of the petition in plain and simple language.
 
19 The petition may be accompanied by a certificate of the licensed
 
20 physician or psychologist who has examined the person within two
 

 
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 1 days before submission of the petition, unless the person whose
 
 2 commitment is sought has refused to submit to medical or
 
 3 psychological examination, in which case the fact of refusal
 
 4 shall be alleged in the petition.  The certificate shall set
 
 5 forth the signs and symptoms relied upon by the physician or
 
 6 psychologist to determine the person is in need of care or
 
 7 treatment, or both, and whether or not the person is capable of
 
 8 realizing and making a rational decision with respect to the
 
 9 person's need for treatment.  If the petitioner believes that
 
10 further evaluation is necessary before commitment, the petitioner
 
11 may request such further evaluation.
 
12      (b)  In the event the subject of the petition for
 
13 involuntary hospitalization has been given an examination,
 
14 evaluation, or treatment in a psychiatric facility within five
 
15 days before submission of the petition, and hospitalization is
 
16 recommended by the staff of the facility, the petition may be
 
17 accompanied by the administrator's certificate in lieu of a
 
18 physician's or psychologist's certificate.
 
19      (c)  The subject's treating psychiatrist may file a petition
 
20 for involuntary psychoactive medication.  The petition shall be
 
21 executed subject to the penalties of perjury but need not be
 
22 sworn to before a notary public.
 
23      (d)  The petition for involuntary psychoactive medication
 

 
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 1 must be accompanied by a certificate of the licensed treating
 
 2 psychiatrist and a certificate of a licensed non-treating
 
 3 psychiatrist.  Both psychiatrists shall have examined the subject
 
 4 within two days before submission of the certificates, unless the
 
 5 subject has refused to submit to medical or psychiatric
 
 6 examination, in which case the fact of refusal shall be alleged
 
 7 in the certificates.
 
 8      (1)  The certificate of the treating psychiatrist shall
 
 9           include:
 
10           (A)  A description of the nature of the subject's
 
11                mental illness and the prognosis of the mental
 
12                illness without the proposed psychoactive
 
13                medication;
 
14           (B)  A description of the proposed psychoactive
 
15                medication trials and the relevant considerations
 
16                about the proposed psychoactive medication,
 
17                including:
 
18                (i)  The expected results;
 
19               (ii)  The possibility of common, severe, or
 
20                     irreversible side effects or conditions;
 
21              (iii)  The associated risks of such side effects or
 
22                     conditions;
 
23               (iv)  Any pain or discomfort connected with or
 

 
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 1                     caused by the psychoactive medication or its
 
 2                     administration; and
 
 3                (v)  The prognosis as to the length of time before
 
 4                     the subject's competency will be restored or
 
 5                     before the subject's ability to function will
 
 6                     be improved;
 
 7           (C)  A medical opinion regarding the subject's capacity
 
 8                to make an informed decision concerning the
 
 9                proposed psychoactive medication;
 
10           (D)  A medical opinion that:
 
11                (i)  The proposed course of psychoactive
 
12                     medication trials is medically appropriate
 
13                     and the least intrusive treatment alternative
 
14                     available;
 
15               (ii)  The proposed psychoactive medication is
 
16                     necessary to prevent a significant and likely
 
17                     long-term deterioration in the subject's
 
18                     mental condition;
 
19              (iii)  The proposed psychoactive medication is
 
20                     essential for the subject's safety or the
 
21                     safety of others; and
 
22               (iv)  The known beneficial mental and physical
 
23                     effects of the proposed psychoactive
 

 
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 1                     medication substantially outweigh the
 
 2                     detrimental and physical effects; and
 
 3           (E)  Any additional relevant information regarding:
 
 4                (i)  If applicable, the experimental nature or
 
 5                     method of treatment of the proposed
 
 6                     psychoactive medications and its acceptance
 
 7                     by the medical community of this State;
 
 8               (ii)  The manner in which the side effects or
 
 9                     conditions will be monitored and managed, if
 
10                     they occur;
 
11              (iii)  The extent of intrusion into the subject's
 
12                     body and the pain or discomfort connected
 
13                     with or caused by the psychoactive
 
14                     medications; and
 
15               (iv)  The subject's statements made both while
 
16                     competent or incompetent regarding the
 
17                     effects of the psychoactive medication on the
 
18                     subject's person;
 
19      (2)  The certificate of the non-treating psychiatrist shall
 
20           include:
 
21           (A)  A statement that the non-treating psychiatrist is
 
22                not directly involved with the subject's current
 
23                or proposed treatment;
 

 
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 1           (B)  A medical opinion that the non-treating
 
 2                psychiatrist concurs with the treating
 
 3                psychiatrist's medical opinion that the subject is
 
 4                incompetent and with the proposed plan for
 
 5                involuntary medication of the subject; and
 
 6           (C)  Any statements or medical opinions which differ
 
 7                from the statements or opinions set forth by the
 
 8                treating psychiatrist in the certificate attached
 
 9                to the petition."
 
10      SECTION 3.  Section 334-60.5, Hawaii Revised Statutes, is
 
11 amended to read as follows:
 
12      "§334-60.5  Hearing on petition[.] for involuntary
 
13 hospitalization and order; hearing on petition for involuntary
 
14 medication and order.  (a)  The court may adjourn or continue a
 
15 hearing for involuntary hospitalization or involuntary medication
 
16 for failure to timely notify a spouse or reciprocal beneficiary,
 
17 guardian, relative, or other person determined by the court to be
 
18 entitled to notice, or for failure by the subject to contact an
 
19 attorney as provided in section 334-60.4(b)(7) if the court
 
20 determines the interests of justice so require.
 
21      (b)  The time and form of the procedure incident to hearing
 
22 the issues in the petition for involuntary hospitalization or
 
23 involuntary medication shall be provided by court rule.  [Unless
 

 
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 1 the hearing is waived, the] The judge shall hear the petition for
 
 2 involuntary hospitalization or involuntary medication as soon as
 
 3 possible and no later than ten days after the date the petition
 
 4 is filed unless a reasonable delay is sought for good cause shown
 
 5 by the subject of the petition, the subject's attorney, or those
 
 6 persons entitled to receive notice of the hearing under section
 
 7 334-60.4.
 
 8      (c)  The subject of the petition for involuntary
 
 9 hospitalization or involuntary medication shall be present at all
 
10 hearings unless the subject waives the right to be present, is
 
11 unable to attend, or creates conditions which make it impossible
 
12 to conduct the hearing in a reasonable manner as determined by
 
13 the judge.  A waiver is valid only upon acceptance by the court
 
14 following a judicial determination that the subject understands
 
15 the subject's rights and is competent to waive them, or is unable
 
16 to participate.  If the subject is unable to participate, the
 
17 judge shall appoint a guardian ad litem or a temporary guardian
 
18 as provided in Article V of chapter 560, to represent the subject
 
19 throughout the proceedings.
 
20      (d)  Hearings may be held at any convenient place within the
 
21 circuit.  The subject of the petition, any interested person, or
 
22 the court on its own motion may request a hearing in another
 
23 circuit because of convenience to the parties, witnesses, or the
 

 
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 1 court or because of the individual's mental or physical
 
 2 condition.
 
 3      (e)  The attorney general, the attorney general's deputy,
 
 4 special deputy, or appointee shall present the case for hearings
 
 5 convened under this chapter, for involuntary hospitalization,
 
 6 except that the attorney general, the attorney general's deputy,
 
 7 special deputy, or appointee need not participate in or be
 
 8 present at a hearing whenever a petitioner or some other
 
 9 appropriate person has retained private counsel who will be
 
10 present in court and will present to the court the case for
 
11 involuntary hospitalization.
 
12      (f)  Counsel for the subject of the petition shall be
 
13 allowed adequate time for investigation of the matters at issue
 
14 and for preparation, and shall be permitted to present the
 
15 evidence that the counsel believes necessary to a proper
 
16 disposition of the proceedings, including evidence as to
 
17 alternatives to inpatient hospitalization[.] or medication.
 
18      (g)  No individual may be found to require treatment in a
 
19 psychiatric facility unless at least one physician or
 
20 psychologist who has personally examined the individual testifies
 
21 in person at the hearing[.] for involuntary hospitalization.
 
22 This testimony may be waived by the subject of the petition[.]
 
23 for involuntary hospitalization.  If the subject of the petition
 

 
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 1 for involuntary hospitalization has refused to be examined by a
 
 2 licensed physician or psychologist, the subject may be examined
 
 3 by a court-appointed licensed physician or psychologist.  If the
 
 4 subject refuses and there is sufficient evidence to believe that
 
 5 the allegations of the petition for involuntary hospitalization
 
 6 are true, the court may make a temporary order committing the
 
 7 subject to a psychiatric facility for a period of not more than
 
 8 five days for the purpose of a diagnostic examination and
 
 9 evaluation.  The subject's refusal shall be treated as a denial
 
10 that the subject is mentally ill or suffering from substance
 
11 abuse.  Nothing in this section, however, shall limit the
 
12 individual's privilege against self-incrimination.
 
13      (h)  The subject of the petition for involuntary
 
14 hospitalization or involuntary medication in a hearing under this
 
15 section has the right to secure an independent medical or
 
16 psychological evaluation and present evidence thereon.
 
17      (i)  If after hearing all relevant evidence, including the
 
18 result of any diagnostic examination ordered by the court, the
 
19 court finds that an individual is not a person requiring medical,
 
20 psychiatric, psychological, or other rehabilitative treatment or
 
21 supervision, the court shall order that the individual be
 
22 discharged if the individual has been hospitalized prior to the
 
23 hearing.  If the court finds that the criteria for involuntary
 

 
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 1 hospitalization under section 334-60.2(1) has been met beyond a
 
 2 reasonable doubt and that the criteria under sections 334-60.2(2)
 
 3 and 334-60.2(3) have been met by clear and convincing evidence,
 
 4 the court may issue an order to any police officer to deliver the
 
 5 subject to a facility that has agreed to admit the subject as an
 
 6 involuntary patient, or if the subject is already a patient in a
 
 7 psychiatric facility, authorize the facility to retain the
 
 8 patient for treatment for a period of ninety days unless sooner
 
 9 discharged.  An order of commitment for involuntary
 
10 hospitalization shall specify which of those persons served with
 
11 notice pursuant to section 334-60.4, together with such other
 
12 persons as the court may designate, shall be entitled to receive
 
13 any subsequent notice of intent to discharge, transfer, or
 
14 recommit.
 
15      (j)  The court may find that the subject of the petition for
 
16 involuntary hospitalization is an incapacitated or protected
 
17 person, or both, under Article V of chapter 560, and may appoint
 
18 a guardian of the person, or property, or both, for the subject
 
19 under the terms and conditions as the court shall determine.
 
20      (k)  If a petition for involuntary psychoactive medication
 
21 has been filed, the court may order the administration of
 
22 involuntary medication if:
 
23      (1)  The subject was involuntarily hospitalized pursuant to
 

 
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 1           this chapter based on the criteria that the subject is
 
 2           imminently dangerous to self or others;
 
 3      (2)  The treating psychiatrist, who has personally examined
 
 4           the subject and filed the certificate accompanying the
 
 5           petition, testifies in person at the hearing;
 
 6      (3)  The court finds clear and convincing evidence that the
 
 7           subject is incompetent to make an informed decision
 
 8           concerning the proposed psychoactive medication;
 
 9      (4)  The court finds by clear and convincing evidence that
 
10           the proposed psychoactive medication is necessary to
 
11           prevent a significant and likely long-term
 
12           deterioration in the subject's mental condition.  In
 
13           making this finding, the court shall consider the
 
14           following factors:
 
15           (A)  The subject's actual need for the psychoactive
 
16                medication;
 
17           (B)  The nature and gravity of the subject's mental
 
18                illness;
 
19           (C)  The extent to which the medication is essential to
 
20                effective treatment; and
 
21           (D)  The subject's prognosis without the medication;
 
22      (5)  The court finds by clear and convincing evidence that
 
23           the known beneficial mental and physical effects of the
 
24           proposed psychoactive medication substantially outweigh
 

 
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 1           the detrimental mental and physical effects, which
 
 2           findings shall be based on:
 
 3           (A)  The extent and duration of changes in behavior
 
 4                patterns and mental activity effected by the
 
 5                psychoactive medication;
 
 6           (B)  The detrimental mental and physical effects of the
 
 7                psychoactive medication and the risk that they
 
 8                will occur;
 
 9           (C)  The experimental nature or method of treatment of
 
10                the proposed psychoactive medications and its
 
11                acceptance by the medical community of this State;
 
12           (D)  The extent of intrusion into the subject's body
 
13                and the pain or discomfort connected with or
 
14                caused by the psychoactive medication; and
 
15           (E)  The subject's statements made both while competent
 
16                or incompetent regarding the effects of the
 
17                psychoactive medication on the subject's person;
 
18           and
 
19      (6)  The court finds by clear and convincing evidence that
 
20           the proposed psychoactive medication is medically
 
21           appropriate, the least intrusive treatment alternative
 
22           available, and essential for the subject's safety or
 
23           the safety of others.
 

 
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 1      (l)  The order for involuntary medication shall authorize
 
 2 the treating physician or designee to administer medication which
 
 3 the treating physician or designee deems necessary for treatment
 
 4 of the subject; provided that the subject or the subject's
 
 5 representative may petition the court for a hearing to determine
 
 6 the necessity of the medication administered.  The order for
 
 7 involuntary medication may specify types or classes of medication
 
 8 to be prescribed by the person's treating physician and
 
 9 administered on an involuntary basis if necessary.  The person's
 
10 treating physician or designee shall make all reasonable efforts
 
11 to solicit the person's compliance with the prescribed medication
 
12 prior to the involuntary administration of medication.  All
 
13 treatment shall be clinically indicated and consistent with
 
14 accepted medical standards and the court order.
 
15      (m)  The order for involuntary medication shall be effective
 
16 for no longer than ninety days.  If the subject believes that the
 
17 subject has regained competency, the subject or the subject's
 
18 representative may petition the court for a hearing on the
 
19 subject's competency no sooner than forty-five days after the
 
20 issuance of the order for involuntary medication.  The court
 
21 shall hold a hearing within ten days of this petition and must
 
22 make the identical findings set forth in subsection (k) before
 
23 the order for involuntary medication may continue for the
 

 
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 1 remaining unexpired period."
 
 2      SECTION 4.  Section 802-1, Hawaii Revised Statutes, is
 
 3 amended to read as follows:
 
 4      "§802-1 Right to representation by public defender or other
 
 5 appointed counsel.  Any indigent person who is (1) arrested for,
 
 6 charged with or convicted of an offense or offenses punishable by
 
 7 confinement in jail or prison or for which such person may be or
 
 8 is subject to the provisions of chapter 571; or (2) threatened by
 
 9 confinement, against the indigent person's will, in any
 
10 psychiatric or other mental institution or facility; or (3) the
 
11 subject of a petition for involuntary outpatient treatment or
 
12 involuntary medication under chapter 334 shall be entitled to be
 
13 represented by a public defender.  If, however, conflicting
 
14 interests exist, or if the public defender for any other reason
 
15 is unable to act, or if the interests of justice require, the
 
16 court may appoint other counsel. 
 
17      The appearance of the public defender in all judicial
 
18 proceedings shall be subject to court approval. 
 
19      The appearance of a public defender in all hearings before
 
20 the Hawaii paroling authority or other administrative body or
 
21 agency shall be subject to the approval of the chairperson of the
 
22 Hawaii paroling authority or the administrative head of the body
 
23 or agency involved."
 

 
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 1      SECTION 5.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 6.  This Act shall take effect on                 .