HOUSE OF REPRESENTATIVES
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO COURT ORDERS TO PROVIDE MEDICAL TREATMENT FOR INMATES AND DETAINEES IN CORRECTIONAL FACILITIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 353-13.6, Hawaii Revised Statutes, is amended to read as follows:
§353-13.6[ ]] Involuntary
medical treatment criteria. 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 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.
For the purposes of this section:
"Danger 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 the person or 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."
SECTION 2. Section 353-13.7, Hawaii Revised Statutes, is amended to read as follows:
Initiation of proceeding for involuntary medical treatment. (a) The
director, or the director's designee, may file a petition for involuntary
medical treatment alleging that a person in the custody of the department meets
the criteria for involuntary
medical treatment under section 353-13.6. The petition shall be executed
subject to the penalties of perjury but need not be sworn to before a notary
public and shall be filed in the circuit or district court of the
circuit or district wherein the person who is the subject of the petition is in custody. The
attorney general, the attorney general's deputy, special deputy, or appointee
designated to present the case shall assist the petitioner to state the
substance of the petition in plain and simple language. The petition may be accompanied by an affidavit or
declaration of the licensed physician or psychologist who has examined the
person within [ two] five days prior to submission of the
petition, unless the person whose treatment is sought has refused to submit to
a medical or psychological examination, in which case the fact of refusal shall
be alleged in the petition. The affidavit or declaration shall set
forth the signs and symptoms relied upon by the physician or psychologist 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. If the petitioner believes
that further evaluation is necessary before treatment, the petitioner may
request such further evaluation.
(b) 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."
SECTION 3. Section 353-13.8, Hawaii Revised Statutes, is amended by amending its title and subsections (a) and (b) to read as follows:
Notice; waiver of notice; hearing on petition; waiver of hearing on petition
for involuntary hospitalization. (a) The court shall set a hearing on the
petition, and notice of the hearing shall be served personally on the person
who is the subject of the petition, or by certified or registered mail, return
receipt requested, deliverable to the addressee only[ ;], on [ the
person's spouse, civil union partner, or reciprocal beneficiary; legal parents;
adult children; and legal guardian, if one has been appointed. If the person
has no living spouse, civil union partner, or reciprocal beneficiary; legal
parent; adult children; or legal guardian, or
if none can be found, notice of the hearing shall be served on at least one of
the person's closest adult relatives if any can be found.] the person's
legal guardian or emergency contact listed while the person is in the custody of the department. Notice
of the hearing shall also be served on the public defender, person's attorney,
or other court-appointed attorney, as the case may be. If the person is a
minor, notice of the hearing shall also be served upon the person who has had
the principal care and custody of the minor during the sixty days preceding the
date of the petition if the person can be found within the State. Notice shall
also be given to the other persons as the court may designate.
(b) The notice required by subsection (a) shall include:
(1) The date, time, place of hearing, a clear
statement of the purpose of the
proceedings and of possible consequences to the person who is the subject of
the petition, and a statement of the legal standard upon which [
care or treatment is authorized;
(2) A copy of the petition;
(3) Written notice, in plain and simple language, that the person may waive the hearing by voluntarily agreeing to the care or treatment proposed;
(4) A completed form indicating the waiver described in paragraph (3) if the person waived the hearing;
(5) Written notice, in plain and simple language, that the person or the person's guardian or representative may apply at any time for a hearing on the issue of the person's need for care or treatment if the person has previously waived a hearing;
(6) Notice that the person is entitled to the assistance of an attorney and that the public defender has been notified of these proceedings;
(7) Notice that if the person does not want to be represented by the public defender, the person may contact the person's own attorney; and
(8) Notice, if applicable, that the petitioner intends to present evidence to show that the person is an incapacitated or protected person, or both, under article V of chapter 560, and whether the appointment of a guardian is sought at the hearing. If appointment of a guardian is to be recommended, and a nominee is known at the time the petition is filed, the identity of the nominee shall be disclosed."
SECTION 4. Section 353-13.9, Hawaii Revised Statutes, is amended as follows:
1. By amending its title and subsections (a) to (d) to read:
§353-13.9[ ]] Hearing
on petition. (a) The
court may adjourn or continue a hearing for failure to timely notify [ a
spouse, civil union partner, reciprocal beneficiary, guardian, relative,] the person's legal guardian or emergency
contact listed while the person is
custody of the department,
or other person determined by the court to be entitled to notice, or for
failure by the person who is the subject of the petition to contact an attorney
as provided in section 353-13.8, if the court determines that an adjournment or
continuance is in the interest of justice.
the hearing is waived, the [
judge] court shall hear the petition
as soon as possible and no later than ten days after the date the petition is
filed unless a reasonable delay is sought for good cause shown by the person
who is the subject of the petition, the person's attorney, the petitioner,
the guardian or guardian ad litem, or those persons entitled to receive
notice of the hearing under section 353-13.8.
person who is the subject of the petition shall be present at all hearings
unless the person waives the right to be present, is unable to attend, or
creates conditions that make it impossible to conduct the hearing in a
reasonable manner as determined by the [
judge.] court. A waiver
is valid only upon acceptance by the court following a judicial determination
that the person understands the person's rights and is competent to waive them,
or is unable to participate. [ If the person is unable to participate, the
judge shall appoint a guardian ad litem or a temporary guardian as provided in
article V of chapter 560, to represent the person throughout the proceedings.] At any point during the proceedings and after the
filing of the petition, the court may appoint a guardian ad litem or a
temporary guardian, as provided in article V of chapter 560, to represent the
person throughout the proceedings, if the court finds that the person is unable
to participate or that other good cause exists.
may be held at a convenient location within the circuit or district
where the person who is the subject of the petition resides or any other
circuit or district deemed appropriate by the court. The person or any
interested person may request a hearing in another circuit or district
because of convenience to the parties, witnesses, or the court, or because of
the person's mental or physical condition."
2. By amending subsection (i) to read:
"(i) If the court finds that the criteria for involuntary medical treatment under section 353-13.6 have been met by clear and convincing evidence, the court may issue an order to authorize the department to involuntarily medically treat the person for a period of up to one year unless the person is sooner released or sooner determined to no longer be in need of treatment. If so specified by the court, however, the order may remain in effect if the person who is the subject of the petition is released but returns to custody during the maximum period of the order, if the underlying criminal case is still active, or if the sentence has not been fully served, unless the person is sooner determined to no longer be in need of treatment."
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect upon its approval.
Correctional Facilities; Involuntary Medical Treatment
Amends procedures for petition and hearing for court-ordered, involuntary medical treatment of inmates and detainees in custody of the department of corrections. (HB948 HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.