HOUSE OF REPRESENTATIVES

H.B. NO.

1686

TWENTY-EIGHTH LEGISLATURE, 2016

 

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 part IV of chapter 334, Hawaii Revised Statutes, includes procedures authorizing any person to petition a court to commit another person in the same county to a psychiatric facility under certain limited circumstances.  Pursuant to section 334-60.3(a), Hawaii Revised Statutes, the petition may be accompanied by a certificate from a medical professional that describes the symptoms justifying the need for treatment and stating whether the person is capable of realizing and making a rational decision with respect to the person’s need for treatment.  Pursuant to section 334-60.5(g), Hawaii Revised Statutes, no person may be found to require treatment in a psychiatric facility unless at least one medical professional who has personally examined the person testifies in person at the hearing on the petition.

     The respondent to the petition for involuntary hospitalization may be committed to a psychiatric facility if the court finds all of the following criteria under section 334-60.2, Hawaii Revised Statutes:

     (1)  That the respondent is mentally ill or suffering from substance abuse;

     (2)  That the respondent is imminently dangerous to self or others; and

     (3)  That the respondent is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs that would be less restrictive than hospitalization.

     "Dangerous to self" and "dangerous to others" are defined in section 334-1, Hawaii Revised Statutes, as collectively meaning that the respondent recently has:

     (1)  Threatened or attempted suicide or serious bodily harm to self;

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

     (3)  Engaged in an act, attempt, or threat that makes the respondent likely to do substantial physical or emotional injury on another.

     These definitions are consistent with the criteria for involuntary commitment applied in most other states that require a finding of danger to self or others, using a standard of a serious or substantial risk, likelihood, or probability of harm. However, the standard in Hawaii is that of an "imminent" danger to self or others.  In the few states that operate under that threshold for involuntary commitment, it is possible for the respondent to be discharged from the proceedings, even if harm is virtually certain to occur in the future, if the respondent does not exhibit any signs of immediate danger during the involuntary commitment proceedings.  If the imminent dangerousness standard is applied in this manner, it is unlikely that an involuntary commitment petition will be successful given the improbability of a mentally ill individual exhibiting signs of imminent dangerousness at the time of the hearing. 

The legislature recognizes that, pursuant to Act 221, Session Laws of Hawaii 2013, the imminent dangerousness standard for involuntary commitment in Hawaii is scheduled to be expanded in 2020 to once again include individuals who are "gravely disabled" or "obviously ill."  These categories of mental illness, which do not rise to the level of imminent dangerousness but involve issues of mental illness requiring treatment, were originally encompassed by the involuntary commitment law but temporarily eliminated therefrom by Act 221 in furtherance of a pilot program for assisted community treatment that is scheduled to terminate on July 1, 2020.  The assisted community treatment program provides a newer approach to involuntary outpatient treatment for the mentally ill designed to expand outpatient treatment options in the community, with the goal of reducing hospitalization rates, lengths of hospital stays, arrest rates, and days spent in correctional confinement facilities by providing more opportunities for the treatment of severe mental illness in the least restrictive setting.

     While the legislature supports the continued evaluation of the temporary assisted community treatment program under Act 221, Session Laws of Hawaii 2013, in the meantime the resulting effect of having imminent dangerousness serve as the main standard for the involuntary commitment of mentally ill persons leaves Hawaii communities with an unworkable law that, in actual application, makes it extremely difficult to fulfill the law's original purpose of protecting communities and providing necessary treatment to mentally ill individuals posing a danger to themselves or others.  The problem stemming from the lack of an effective option for involuntary hospitalizations has become particularly pronounced with the recent rise in Hawaii of the homeless population, which includes mentally ill individuals who may pose a risk of harm to themselves, other persons, or property.  The legislature finds it essential to establish a better standard for involuntary hospitalizations that would allow for the commitment of mentally ill individuals who are likely to behave dangerously in the future without treatment or protection.

     The purpose of this Act is to facilitate involuntary hospitalizations and other forms of treatment for the protection of mentally ill individuals and the public, by replacing the current standard of imminent dangerousness with the criterion of a likelihood of harm to self or others based on recent behavior.

     SECTION 2.  Section 334-59, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (a) to read:

     "(a)  Initiation of proceedings.  An emergency admission may be initiated as follows:

     (1)  If a law enforcement officer has reason to believe that a person is [imminently] dangerous to self or others, the officer shall call for assistance from the mental health emergency workers designated by the director.  Upon determination by the mental health emergency workers that the person is [imminently] dangerous to self or others, the person shall be transported by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization.  A law enforcement officer may also take into custody and transport to any facility designated by the director any person threatening or attempting suicide, or may take into custody and transport to any designated mental health program, any person subject to an assisted community treatment order, issued pursuant to part VIII of this chapter, for further evaluation and possible emergency hospitalization.  The officer shall make application for the examination, observation, and diagnosis of the person in custody.  The application shall state or shall be accompanied by a statement of the circumstances under which the person was taken into custody and the reasons therefor which shall be transmitted with the person to a physician, advanced practice registered nurse, or psychologist at the facility, or to a licensed psychiatrist at a designated mental health program.

     (2)  Upon written or oral application of any licensed physician, advanced practice registered nurse, psychologist, attorney, member of the clergy, health or social service professional, or any state or county employee in the course of employment, a judge may issue an ex parte order orally, but shall reduce the order to writing by the close of the next court day following the application, stating that there is probable cause to believe the person is mentally ill or suffering from substance abuse or is [imminently] dangerous to self or others and in need of care or treatment, or both, giving the findings upon which the conclusion is based, and directing that a law enforcement officer or other suitable individual take the person into custody and deliver the person to the nearest facility designated by the director for emergency examination and treatment.  The ex parte order shall be made a part of the patient's clinical record.  If the application is oral, the person making the application shall reduce the application to writing and shall submit the same by noon of the next court day to the judge who issued the oral ex parte order.  The written application shall be executed subject to the penalties of perjury but need not be sworn to before a notary public.

     (3)  Any licensed physician, advanced practice registered nurse, physician assistant, or psychologist who has examined a person and has reason to believe the person is:

         (A)  Mentally ill or suffering from substance abuse;

         (B)  [Imminently dangerous] Dangerous to self or others; and

         (C)  In need of care or treatment;

          may direct transportation, by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization.  A licensed physician, an advanced practice registered nurse, or physician assistant may administer treatment as is medically necessary, for the person's safe transportation.  A licensed psychologist may administer treatment as is psychologically necessary."

     2.  By amending subsection (d) to read:

     "(d)  Emergency hospitalization.  If the physician, advanced practice registered nurse, or psychologist who performs the emergency examination has reason to believe that the patient is:

     (1)  Mentally ill or suffering from substance abuse;

     (2)  [Imminently dangerous] Dangerous to self or others; and

     (3)  In need of care or treatment, or both;

the physician, advanced practice registered nurse, or psychologist may direct that the patient be hospitalized on an emergency basis or cause the patient to be transferred to another psychiatric facility for emergency hospitalization, or both.  The patient shall have the right immediately upon admission to telephone the patient's guardian or a family member including a reciprocal beneficiary, or an adult friend and an attorney.  If the patient declines to exercise that right, the staff of the facility shall inform the adult patient of the right to waive notification to the family including a reciprocal beneficiary, and shall make reasonable efforts to ensure that the patient's guardian or family including a reciprocal beneficiary, is notified of the emergency admission but the patient's family including a reciprocal beneficiary, need not be notified if the patient is an adult and requests that there be no notification.  The patient shall be allowed to confer with an attorney in private."

     SECTION 3.  Section 334-60.2, Hawaii Revised Statutes, is amended to read as follows:

     "§334-60.2  Involuntary hospitalization criteria.  A person may be committed to a psychiatric facility for involuntary hospitalization, if the court finds:

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

     (2)  That the person is [imminently] dangerous to self or others; and

     (3)  That the person is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization."

     SECTION 4.  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 that:

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

     (2)  The person is unlikely to live safely in the community without available supervision 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 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; and

     (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; and

     (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; and

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

     (7)  Considering less intrusive alternatives, assisted community treatment is essential to prevent the danger posed by the person."

     SECTION 5.  Section 334-142, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§334-142[]]  Petition.  Any family member may petition the family court for an order requiring a respondent to enter into an outpatient treatment program for substance abuse.  The petition shall be in writing under penalty of perjury and include facts relating to:

     (1)  The conduct of the respondent that indicates substance abuse or addiction;

     (2)  The respondent’s history of substance abuse, treatment, and relapse;

     (3)  The effects of the respondent’s conduct on the family;

     (4)  The petitioner’s good faith belief that the respondent poses [an imminent] a danger to self or to others if the respondent does not receive treatment;

     (5)  The availability of treatment and financial resources to pay for treatment; and

     (6)  Any other reason for seeking court intervention."

     SECTION 6.  Section 334-144, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The court may grant the petition if it finds clear and convincing evidence that:

     (1)  The respondent has a history of substance abuse and refuses to enter treatment voluntarily;

     (2)  The respondent has a family support system that will encourage and participate in the respondent’s treatment program;

     (3)  The respondent can benefit from outpatient treatment and is capable of surviving safely in the community with the family support system and if outpatient treatment is received;

     (4)  The respondent or the petitioner has financial resources to pay for the outpatient treatment program;

     (5)  The respondent poses [an imminent] a danger to self or to others if treatment is not received; and

     (6)  The respondent understands the nature of the proceeding and the effect of the court order to enter into outpatient treatment."

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval; provided that the amendments made to sections 334-59, 334-60.2, and 334-121, Hawaii Revised Statutes, by this Act shall not be repealed when those sections are reenacted on July 1, 2020, pursuant to section 24 of Act 221, Session Laws of Hawaii 2013.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Mental Health Treatment; Involuntary Hospitalization

 

Description:

Amends the criteria for involuntary hospitalizations and other forms of mental health treatment to replace the current standard of imminent dangerousness with the criterion of a likelihood of harm to self or others based on recent behavior.

 

 

 

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