HOUSE OF REPRESENTATIVES
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII
A BILL FOR AN ACT
relating to ORDERS FOR TREATMENT OVER OBJECTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the initiation of treatment for pretrial detainees and committed persons in the custody of the department of public safety needs to be expedient to address each committed person's medical or psychiatric symptoms and to protect the safety of the committed person and others. The legislature further finds that promptly addressing a committed person's medical or psychiatric symptoms helps to maintain a safe and secure environment for the individual involved and the persons who surround the committed person.
The legislature notes that a judicial hearing is required to obtain an authorization to provide treatment over a person's objection. However, this procedure may not be expedient enough to address the detainee's immediate health needs. Other states have addressed the variability and length of time before the judicial hearing by developing a nonjudicial, administrative process to review and authorize requests for treatment despite a person's objections.
The purpose of this Act is to permit an administrative order to overcome a person's objection to medical or psychiatric treatment, establish criteria for issuance of the court or administrative order, and establish criteria for an administrative authorization process to determine whether the administrative order should be issued.
SECTION 2. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§353- Criteria for administrative authorization process for treatment over objection. (a) Upon petition by the medical officer of a correctional facility or another person designated by the director, a pretrial detainee or committed person who is in the custody of the department may be ordered to receive medical treatment over the pretrial detainee's or committed person's objection through an administrative authorization process. The petition:
(1) Shall allege that the pretrial detainee or committed person meets the criteria for treatment over objection under section 353-13.6;
(2) Shall be executed subject to the penalties of perjury;
(3) May be accompanied by an affidavit or declaration of the licensed physician or psychologist who has examined the person within five days prior to submission of the petition; provided that:
(A) 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; and
(B) If the person for whom treatment is sought has refused to submit to a medical or psychological examination, the fact of refusal shall be alleged in the petition;
(4) Shall set forth the signs and symptoms relied upon 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; and
(5) May request further evaluation, if the petitioner believes additional evaluation is necessary before treatment.
(b) The administrative authorization process shall include the following due process safeguards:
(1) The department shall serve notice to the same persons, and in the same manner, as set forth in section 353‑13.8(a), containing the information set forth in section 353-13.8(b)(1) to (7);
(2) The administrative panel shall consist of three members who have relevant clinical training and experience and are not involved with the current treatment of the pretrial detainee or committed person;
(3) The pretrial detainee or committed person may attend the hearing, be represented by an attorney, cross-examine witnesses, and present testimony, exhibits, and witnesses; and
(4) The pretrial detainee or committed person may appeal the decision of the administrative panel pursuant to an appeals process to be adopted by the department.
(c) The administrative process described by this section is exempt from the contested case requirements of sections 91‑8.5 to 91-15.
(d) The department may adopt rules, pursuant to chapter 91, to effectuate this section."
SECTION 3. Section 353-13.6, Hawaii Revised Statutes, is amended to read as follows:
Involuntary medical treatment criteria.] Criteria
for issuance of court or administrative order for treatment over objection. (a) [ 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 danger of physical harm to 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.]
A pretrial detainee or a committed person in the custody of the department may be ordered to receive treatment over the pretrial detainee's or committed person's objection, including the taking or application of medication, if the court or administrative panel through the administrative authorization process established pursuant to section 353- finds that:
(1) The pretrial detainee or committed person suffers from a physical or mental disease, disorder, or defect;
(2) The pretrial detainee or committed person is imminently dangerous to self or others;
(3) The proposed treatment is medically appropriate; and
(4) After considering less intrusive alternatives, treatment is necessary to forestall the danger posed by the pretrial detainee or committed person.
(b) For the
purposes of this section[
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 recently has threatened or attempted suicide or serious bodily
self injury; or the person recently has 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.], "imminently dangerous to self or
others" means that, without intervention, the person will likely become
dangerous to the person's self or dangerous to others within the next
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect on July 1, 2018.
Psychiatric Treatment; Administrative Order; Administrative Authorization Process; Department of Public Safety
Authorizes medical treatment by administrative order of pretrial detainees or committed persons despite their objection. Establishes criteria for issuing court or administrative orders and the process to determine whether an administrative order should be issued for medical treatment over the pretrial detainee's or committed person's objection.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.