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S1076....................................................by HEALTH AND WELFARE
CHILDREN - MENTAL HEALTH SERVICES - Amends existing law to further define the
qualifications of a designated examiner for purposes of children's mental
health services.
02/06 Senate intro - 1st rdg - to printing
02/07 Rpt prt - to Health/Wel
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE SENATE
SENATE BILL NO. 1076
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO QUALIFICATIONS OF A DESIGNATED EXAMINER FOR PURPOSES OF CHILDREN'S
3 MENTAL HEALTH SERVICES; AMENDING SECTION 16-2403, IDAHO CODE, TO FURTHER
4 DEFINE TERMS; AMENDING SECTION 66-317, IDAHO CODE, TO FURTHER DEFINE TERMS
5 AND TO DELETE A CODE REFERENCE; AND AMENDING SECTION 66-329, IDAHO CODE,
6 TO FURTHER GOVERN THE DEFINITION OF A DESIGNATED EXAMINER AND TO MAKE
7 TECHNICAL CORRECTIONS.
8 Be It Enacted by the Legislature of the State of Idaho:
9 SECTION 1. That Section 16-2403, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 16-2403. DEFINITIONS. As used in this chapter:
12 (1) "Child" means an individual less than eighteen (18) years of age and
13 not emancipated by either marriage or legal proceeding.
14 (2) "Consistent with the least restrictive alternative principle" means
15 that services are delivered in the setting which places the fewest restric-
16 tions on the personal liberty of the child, and provides the greatest integra-
17 tion with individuals who do not have disabilities, in typical and age appro-
18 priate, school, community and family environments, which is consistent with
19 safe, effective and cost-effective treatment for the child and family.
20 (3) "Department" means the department of health and welfare.
21 (4) "Designated examiner" means a psychiatrist, psychologist, psychiatric
22 nurse, or social worker and such other mental health professionals as may be
23 designated in accordance with rules promulgated pursuant to the provisions of
24 chapter 52, title 67, Idaho Code, by the department of health and welfare has
25 the meaning provided in section 66-317, Idaho Code.
26 (5) "Director" means the director of the state department of health and
27 welfare.
28 (6) "Emergency" means a situation in which the child's condition, as evi-
29 denced by recent behavior, poses a significant threat to the health or safety
30 of the child, his family or others, or poses a serious risk of substantial
31 deterioration in the child's condition which cannot be eliminated by the use
32 of supportive services or intervention by the child's parents, or mental
33 health professionals, and treatment in the community while the child remains
34 in his family home.
35 (7) "Informed consent to treatment" means a knowing and voluntary deci-
36 sion to undergo a specific course of treatment, evidenced in writing, and made
37 by an emancipated child, or a child's parent, or guardian, who has the capac-
38 ity to make an informed decision, after the staff of the facility or other
39 provider of treatment have explained the nature and effects of the proposed
40 treatment.
41 (8) "Involuntary treatment" means treatment, services and placement of
42 children provided without consent of the parent of a child, under the author-
43 ity of a court order obtained pursuant to this chapter, as directed by an
2
1 order of disposition issued by a designated employee of the department of
2 health and welfare under section 16-2415, Idaho Code.
3 (9) "Lacks capacity to make an informed decision concerning treatment"
4 means that the parent is unable to understand the nature and effects of hospi-
5 talization or treatment, or is unable to engage in a rational decision-making
6 process regarding such hospitalization or treatment, as evidenced by an
7 inability to weigh the risks and benefits, despite conscientious efforts to
8 explain them in terms that the parent can understand.
9 (10) "Likely to cause harm to himself or to suffer substantial mental or
10 physical deterioration" means that, as evidenced by recent behavior, the
11 child:
12 (a) Is likely in the near future to inflict substantial physical injury
13 upon himself; or
14 (b) Is likely to suffer significant deprivation of basic needs such as
15 food, clothing, shelter, health or safety; or
16 (c) Will suffer a substantial increase or persistence of symptoms of men-
17 tal illness or serious emotional disturbance which is likely to result in
18 an inability to function in the community without risk to his safety or
19 well-being or the safety or well-being of others, and which cannot be
20 treated adequately with available home and community-based outpatient ser-
21 vices.
22 (11) "Likely to cause harm to others" means that, as evidenced by recent
23 behavior causing, attempting, or threatening such harm with the apparent abil-
24 ity to complete the act, a child is likely to cause physical injury or physi-
25 cal abuse to another person.
26 (12) "Protection and advocacy system" means the agency designated by the
27 governor as the state protection and advocacy system pursuant to 42 U.S.C.
28 6042 and 42 U.S.C. 10801 et seq.
29 (13) "Serious emotional disturbance" means an emotional or behavioral dis-
30 order, or a neuropsychiatric condition which results in a serious disability,
31 and which requires sustained treatment interventions, and causes the child's
32 functioning to be impaired in thought, perception, affect or behavior. A dis-
33 order shall be considered to "result in a serious disability" if it causes
34 substantial impairment of functioning in family, school or community. A sub-
35 stance abuse disorder does not, by itself, constitute a serious emotional dis-
36 turbance, although it may coexist with serious emotional disturbance.
37 (14) "Special therapy" means any treatment modality used to treat children
38 with serious emotional disturbances which is subject to restrictions or spe-
39 cial conditions imposed by the department of health and welfare rules.
40 (15) "Surrogate parent" means any person appointed to act in the place of
41 the parent of a child for purposes of developing an individual education pro-
42 gram under the authority of the individuals with disabilities education act,
43 20 U.S.C. 1400 et seq., as amended.
44 (16) "Treatment facility" means a facility or program meeting applicable
45 licensing standards, that has been approved for the provisions of services
46 under this chapter by the department of health and welfare.
47 SECTION 2. That Section 66-317, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 66-317. DEFINITIONS. As used in this chapter, terms shall have the fol-
50 lowing meanings:
51 (a) "Department director" means the director of the state department of
52 health and welfare.
53 (b) "Voluntary patient" means an individual admitted to a facility for
3
1 evaluation pursuant to section 18-211 or 20-520, Idaho Code, or admitted to a
2 facility for treatment pursuant to section 66-318, Idaho Code.
3 (c) "Involuntary patient" means an individual committed pursuant to sec-
4 tion 18-212, 18-214, 66-329 or 66-1201, Idaho Code, or committed pursuant to
5 section 16-1608 or 20-520, Idaho Code, and admitted to a facility for the
6 treatment of minors.
7 (d) "Licensed physician" means an individual licensed under the laws of
8 this state to practice medicine or a medical officer of the government of the
9 United States while in this state in the performance of his official duties.
10 (e) "Designated examiner" means any person designated by the department
11 director or designee, pursuant to department rules promulgated in accordance
12 with the provisions of chapter 52, title 67, Idaho Code, as specially quali-
13 fied by training and experience in the diagnosis and treatment of mental or
14 mentally related illnesses or conditions. Such persons shall be psychiatrists,
15 licensed psychologists, licensed physicians, a holder of an earned master's
16 level or higher degree in social work from an accredited program, a registered
17 nurse with an earned master's level or higher degree in psychiatric nursing
18 from an accredited program, or a holder of an earned master's level or higher
19 degree in psychology from an accredited program.
20 (f) "Dispositioner" means a designated examiner employed by or under con-
21 tract with the department of health and welfare and designated by the depart-
22 ment director to determine the appropriate location for care and treatment of
23 involuntary patients.
24 (g) "Facility" means any public or private hospital, sanatorium, institu-
25 tion, mental health center or other organization designated in accordance with
26 rules adopted by the board of health and welfare as equipped to initially
27 hold, evaluate, rehabilitate or to provide care or treatment, or both, for the
28 mentally ill.
29 (h) "Lacks capacity to make informed decisions about treatment" means the
30 inability, by reason of mental illness, to achieve a rudimentary understanding
31 after conscientious efforts at explanation of the purpose, nature, and possi-
32 ble significant risks and benefits of treatment.
33 (i) "Inpatient treatment facility" means a facility in which an individ-
34 ual receives medical and mental treatment for not less than a continuous
35 twenty-four (24) hour period.
36 (j) "Supervised residential facility" means a facility, other than the
37 individual's home, in which the individual lives and in which there lives, or
38 are otherwise on duty during the times that the individual's presence is
39 expected, persons who are employed to supervise, direct, treat or monitor the
40 individual.
41 (k) "Likely to injure himself or others" means either:
42 (1) A substantial risk that physical harm will be inflicted by the pro-
43 posed patient upon his own person, as evidenced by threats or attempts to
44 commit suicide or inflict physical harm on himself; or
45 (2) A substantial risk that physical harm will be inflicted by the pro-
46 posed patient upon another as evidenced by behavior which has caused such
47 harm or which places another person or persons in reasonable fear of sus-
48 taining such harm.
49 (l) "Mentally ill" means a person, who as a result of a substantial dis-
50 order of thought, mood, perception, orientation, or memory, which grossly
51 impairs judgment, behavior, capacity to recognize and adapt to reality,
52 requires care and treatment at a facility.
53 (m) "Gravely disabled" means a person who, as the result of mental ill-
54 ness, is in danger of serious physical harm due to the person's inability to
55 provide for any of his basic needs for nourishment, or essential medical care,
4
1 or shelter or safety.
2 (n) "Outpatient commitment" means a court order directing a person to
3 comply with specified mental health treatment requirements, not involving the
4 continuous supervision of a person in an inpatient setting, that are reason-
5 ably designed to alleviate or to reduce a person's illness or disability, or
6 to maintain or prevent deterioration of the person's mental or emotional func-
7 tioning. The specified requirements may include, but need not be limited to,
8 taking prescribed medication, reporting to a facility to permit monitoring of
9 the person's condition, or participating in individual or group therapy or in
10 educational or vocational programs. Outpatient commitment may be up to one
11 (1) year.
12 SECTION 3. That Section 66-329, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 66-329. COMMITMENT TO DEPARTMENT DIRECTOR UPON COURT ORDER -- JUDICIAL
15 PROCEDURE. (a) Proceedings for the involuntary care and treatment of mentally
16 ill persons by the department of health and welfare may be commenced by the
17 filing of a written application with a court of competent jurisdiction by a
18 friend, relative, spouse or guardian of the proposed patient, or by a licensed
19 physician, prosecuting attorney, or other public official of a municipality,
20 county or of the state of Idaho, or the director of any facility in which such
21 patient may be.
22 (b) The application shall state the name and last known address of the
23 proposed patient; the name and address of either the spouse, guardian, next of
24 kin or friend of the proposed patient; whether the proposed patient can be
25 cared for privately in the event commitment is not ordered; if the proposed
26 patient is, at the time of the application, a voluntary patient; whether the
27 proposed patient has applied for release pursuant to section 66-320, Idaho
28 Code; and a simple and precise statement of the facts showing that the pro-
29 posed patient is mentally ill and either likely to injure himself or others or
30 is gravely disabled due to mental illness.
31 (c) Any such application shall be accompanied by a certificate of a des-
32 ignated examiner stating that he has personally examined the proposed patient
33 within the last fourteen (14) days and is of the opinion that the proposed
34 patient is: (i) mentally ill; (ii) likely to injure himself or others or is
35 gravely disabled due to mental illness; and (iii) lacks capacity to make
36 informed decisions about treatment, or a written statement by the applicant
37 that the proposed patient has refused to submit to examination by a designated
38 examiner.
39 (d) Upon receipt of an application for commitment, the court shall,
40 within forty-eight (48) hours appoint another designated examiner to make a
41 personal examination of the proposed patient or if the proposed patient has
42 not been examined, the court shall appoint two (2) designated examiners to
43 make individual personal examinations of the proposed patient and may order
44 the proposed patient to submit to an immediate examination. If neither desig-
45 nated examiner is a physician, the court shall order a physical examination of
46 the proposed patient. At least one (1) designated examiner shall be a psychia-
47 trist, licensed physician or licensed psychologist; no more than one (1) des-
48 ignated examiner may be a physician not practicing psychiatry, a holder of an
49 earned master's level or higher degree in social work from an accredited pro-
50 gram, a registered nurse with an earned master's level or higher degree in
51 psychiatric nursing from an accredited program, or a holder of an earned
52 master's level or higher degree in psychology from an accredited program. The
53 designated examiners shall report to the court their findings within the fol-
5
1 lowing seventy-two (72) hours as to the mental condition of the proposed
2 patient and his need for custody, care, or treatment by a facility. The
3 reports shall be in the form of written certificates which shall be filed with
4 the court. The court may terminate the proceedings and dismiss the application
5 without taking any further action in the event the reports of the designated
6 examiners are to the effect that the proposed patient is not mentally ill or,
7 although mentally ill, is not likely to injure himself or others or is not
8 gravely disabled due to mental illness. If the proceedings are terminated, the
9 proposed patient shall be released immediately.
10 (e) If the designated examiner's certificate states a belief that the
11 proposed patient is mentally ill and either likely to injure himself or others
12 or is gravely disabled due to mental illness, the judge of such court shall
13 issue an order authorizing any health officer, peace officer, or director of a
14 facility to take the proposed patient to a facility in the community in which
15 the proposed patient is residing or to the nearest facility to await the hear-
16 ing and for good cause may authorize treatment during such period subject to
17 the provisions of section 66-346(a)(4), Idaho Code. Under no circumstances
18 shall the proposed patient be detained in a nonmedical unit used for the
19 detention of individuals charged with or convicted of penal offenses.
20 (f) Upon receipt of such application and designated examiners' reports
21 the court shall appoint a time and place for hearing not more than seven (7)
22 days from the receipt of such designated examiners' reports and thereupon give
23 written notice of such time and place of such hearing together with a copy of
24 the application, designated examiner's certificates, and notice of the pro-
25 posed patient's right to be represented by an attorney, or if indigent, to be
26 represented by a court-appointed attorney, to the applicant, to the proposed
27 patient, to the proposed patient's spouse, guardian, next of kin or friend.
28 With the consent of the proposed patient and his attorney, the hearing may be
29 held immediately. Upon motion of the proposed patient and attorney and for
30 good cause shown, the court may continue the hearing up to an additional four-
31 teen (14) days during which time, for good cause shown, the court may autho-
32 rize treatment.
33 (g) An opportunity to be represented by counsel shall be afforded to
34 every proposed patient, and if neither the proposed patient nor others provide
35 counsel, the court shall appoint counsel in accordance with chapter 8, title
36 19, Idaho Code, no later than the time the application is received by the
37 court.
38 (h) The hearing shall be held at a facility, at the home of the proposed
39 patient, or at any other suitable place not likely to have a harmful effect on
40 the proposed patient's physical or mental health. Venue for the hearing shall
41 be in the county of residence of the proposed patient, unless the patient
42 waives the right to have venue fixed there.
43 (i) In all proceedings under this section, any existing provision of the
44 law prohibiting the disclosure of confidential communications between the des-
45 ignated examiner and proposed patient shall not apply and any designated exam-
46 iner who shall have examined the proposed patient shall be a competent witness
47 to testify as to the proposed patient's condition.
48 (j) The proposed patient, the applicant, and any other persons to whom
49 notice is required to be given shall be afforded an opportunity to appear at
50 the hearing, to testify, and to present and cross-examine witnesses. The pro-
51 posed patient shall be required to be present at the hearing unless the court
52 determines that the mental or physical state of the proposed patient is such
53 that his presence at the hearing would be detrimental to the proposed
54 patient's health or would unduly disrupt the proceedings. A record of the pro-
55 ceedings shall be made as for other civil hearings. The hearing shall be con-
6
1 ducted in as informal a manner as may be consistent with orderly procedure.
2 The court shall receive all relevant and material evidence consistent with the
3 rules of evidence.
4 (k) If, upon completion of the hearing and consideration of the record,
5 the court finds by clear and convincing evidence that the proposed patient:
6 (1) is mentally ill; and
7 (2) is, because of such condition, likely to injure himself or others, or
8 is gravely disabled due to mental illness;
9 the court shall order the proposed patient committed to the custody of the
10 department director for an indeterminate period of time not to exceed one (1)
11 year. The department director, through his dispositioner, shall determine
12 within twenty-four (24) hours the least restrictive available facility con-
13 sistent with the needs of each patient committed under this section for obser-
14 vation, care, and treatment.
15 (l) Nothing in this chapter or in any rule adopted pursuant thereto shall
16 be construed to authorize the detention or involuntary admission to a hospital
17 or other facility of an individual who:
18 (1) has epilepsy, a developmental disability, a physical disability, men-
19 tal retardation, is impaired by chronic alcoholism or drug abuse, or aged,
20 unless in addition to such condition, such person is mentally ill;
21 (2) is a patient under treatment by spiritual means alone, through
22 prayer, in accordance with the tenets and practices of a recognized church
23 or religious denomination by a duly accredited practitioner thereof and
24 who asserts to any authority attempting to detain him that he is under
25 such treatment and who gives the name of a practitioner so treating him to
26 such authority; or
27 (3) can be properly cared for privately with the help of willing and able
28 family or friends, and provided, that such persons may be detained or
29 involuntarily admitted if such persons are is mentally ill and presents a
30 substantial risk of injury to himself or others if allowed to remain at
31 liberty.
32 (m) The order of commitment shall state whether the proposed patient
33 lacks capacity to make informed decisions about treatment, the name and
34 address of the patient's attorney and either the patient's spouse, guardian,
35 adult next of kin, or friend.
36 (n) If the patient has no spouse or guardian and if the patient has prop-
37 erty which may not be cared for pursuant to chapter 5, title 66, Idaho Code,
38 or by the patient while confined at a facility, the court shall appoint a
39 guardian ad litem for the purpose of preserving the patient's estate, pending
40 further guardianship or conservatorship proceedings.
41 (o) The commitment shall continue until the commitment is terminated and
42 shall be unaffected by the patient's conditional release or change in disposi-
43 tion.
STATEMENT OF PURPOSE
RS 12387
Currently the professional disciplines to be a Designated Examiner
are not consistent within Idaho Code 16-2403, 66-317 and 66-329.
Idaho Code 16-2403 allows the Department to designate "other mental
health professionals" to be examiners besides those included in
statute, but Idaho Code 66-317 restricts the qualifications to
designated professional disciplines.
These changes will create consistency between Idaho code 16-2403,
66-317 and 66-329 and enable the Department to create rules to
govern the appointment of examiners for adults as well as for
children.
FISCAL IMPACT
None
CONTACT
Name: Decker L. Sanders
Agency: Health and Welfare
Phone: 334-5934
Statement of Purpose/Fiscal Impact S 107