HOUSE OF REPRESENTATIVES
TWENTY-EIGHTH LEGISLATURE, 2015
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:
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 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.
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 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 court of the circuit 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 to read as follows:
§353-13.8[ ]] Notice;
waiver of notice; hearing on petition; waiver of hearing on petition for
involuntary [ hospitalization.] medical treatment. (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, and personally 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.] either the person's
legal guardian or emergency contact listed while in
the custody of the department, if such person can be located and served. 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
(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 [
commitment] 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.
(c) If the person who is the subject of the petition executes and files a waiver of the hearing, then upon acceptance by the court following a court determination that the person understands the person's rights and is competent to waive them, the court shall order the person to be given the care or treatment as the court deems to be proper under the circumstance."
SECTION 4. Section 353-13.9, Hawaii Revised Statutes, is amended to read as follows:
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,] either
the person's legal
guardian or emergency contact listed while in the
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.
(b) Unless the hearing is waived, the [
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.
(c) The 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 [
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.
(d) Hearings may be held at a convenient location within the circuit where the person who is the subject of the petition resides or any other circuit deemed appropriate by the court. The person or any interested person may request a hearing in another circuit because of convenience to the parties, witnesses, or the court, or because of the person's mental or physical condition.
(e) The attorney general, the attorney general's deputy, special deputy, or appointee shall present the case for hearings convened under this section.
(f) Counsel for the person who is the subject of the petition shall be allowed adequate time for investigation of the matters at issue and for preparation, and shall be permitted to present evidence that the counsel believes necessary to a proper disposition of the proceedings.
(g) No person who is the subject of the
petition shall be found to require care or treatment unless at least one
physician or psychologist who has personally examined the person testifies in
person at the hearing. This testimony may be waived by the person. If the
subject has refused to be examined by a licensed physician or psychologist, the
person may be examined by a court-appointed licensed physician or psychologist.
If the person refuses and there is sufficient evidence to believe that the
allegations of the petition are true, the person's refusal shall be treated as
a denial that the person is mentally ill [
or suffering from substance abuse].
Nothing in this section shall limit the person's privilege against
(h) The person who is the subject of the petition in a hearing under this section has the right to secure an independent medical or psychological evaluation at the person's own expense and present evidence thereon.
(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 the sentence has not been fully served, unless the person is sooner determined to no longer be in need of treatment.
(j) Prior to the expiration of an existing involuntary treatment order, the department may move for an extension of the order for a period of up to one year. An extension may be ordered by the court upon a showing that the subject of the order continues to meet the criteria set forth in section 353-13.6. Any extension request shall follow the notice requirements set forth in section 353-13.8.
(j)] (k) The court may
find that the person who is the subject of the petition is an incapacitated or
protected person, or both, under article V of chapter 560, and may appoint a
guardian or conservator, or both, for the person under the terms and conditions
as the court shall determine."
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; Court Orders to Provide Medical Treatment for Inmates and Detainees
Allows for a declaration to be filed with the petition as an alternative to an affidavit; expands the court's ability to continue the hearing on the petition for good cause; gives the court more flexibility in deciding when a guardian ad litem is necessary; changes the time requirement for filing for a court order for medical treatment from a period of within two days of an examination of the person to within five days; redefines the persons who must be notified of the petition; clarifies the effective expiration date of the order for persons who return to custody after release; and provides the ability for the department to seek an extension of an order to treat if necessary.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.