H-4279

AN ACT Relating to involuntarily inserting Norplant in mothers who have given birth to a child with fetal alcohol syndrome; adding a new section to chapter 70.96 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that all children have the right to be born healthy and free of preventable birth defects. Individuals who are addicted to drugs or alcohol are unable to make reasoned decisions that help ensure the birth of a healthy baby. The creation of Norplant is a breakthrough, allowing a temporary, mandatory birth control system. This will provide time for the person to seek and receive treatment.

NEW SECTION. Sec. 2. A new section is added to chapter 70.96 RCW to read as follows:

(1) If a designated chemical dependency specialist receives information alleging that a woman has given birth to a baby with fetal alcohol syndrome or addicted to drugs, the designated chemical dependency specialist, after investigation and evaluation of the specific facts alleged and of the reliability and credibility of the information, may file a petition with the superior or district court for the involuntary insertion of birth control known as Norplant into the woman. The petition shall be accompanied by a certificate of a licensed physician who has examined the mother and baby within five days before submission of the petition, unless the woman who may be involuntarily inserted with Norplant has refused to submit to a medical examination, in which case the fact of refusal shall be alleged in the petition. The certificate shall set forth the licensed physician's findings in support of the allegations of the petition. A licensed physician employed by the department of social and health services is eligible to be the certifying physician.

(2) Upon filing the petition, the court shall fix a date for a hearing no less than two and no more than seven days after the date the petition was filed unless the woman petitioned against is presently being detained in a program, pursuant to RCW 70.96A.120, 71.05.210, or 71.34.050, in which case the hearing shall be held within seventy-two hours of the filing of the petition. The seventy-two hours specified in this section shall be computed by excluding Saturdays, Sundays, and holidays, however, the court may, upon motion of the woman who may be involuntarily inserted with Norplant, or upon motion of petitioner with written permission of the woman who may be involuntarily inserted with Norplant, or her counsel and, upon good cause shown, extend the date for the hearing. A copy of the petition and of the notice of the hearing, including the date fixed by the court, shall be served by the court on the woman who may be involuntarily inserted with Norplant, or her next of kin, a parent, or her legal guardian if she is a minor, and any other person the court believes advisable. A copy of the petition and certificate shall be delivered to each person notified.

(3) At the hearing the court shall hear all relevant testimony, including, if possible, the testimony, that may be telephonic, of at least one licensed physician who has examined the mother and baby. Communications otherwise deemed privileged under the laws of this state are deemed to be waived in proceedings under this section if a court of competent jurisdiction in its discretion determines that the waiver is necessary to protect either the woman or the public. The waiver of a privilege under this section is limited to records or testimony relevant to evaluation of the woman for purposes of a proceeding under this chapter. Upon motion by the woman who may be involuntarily inserted with Norplant, or on its own motion, the court shall examine a record or testimony sought by a petitioner to determine whether it is within the scope of the waiver.

The record maker shall not be required to testify in order to introduce medical, nursing, or psychological records of women as long as the requirements of RCW 5.45.020 are met, except that portions of the record that contain opinions as to whether the woman is an alcoholic, or in the case of a minor incapacitated by alcoholism or other drug addiction, shall be deleted from the records unless the person offering the opinions is available for cross-examination. The woman shall be present unless the court believes that her presence is likely to be injurious to her; in this event the court may deem it appropriate to appoint a guardian ad litem to represent her throughout the proceeding. If deemed advisable, the court may examine the woman out of courtroom. If the woman has refused to be examined by a licensed physician, she shall be given an opportunity to be examined by a court-appointed licensed physician. If she refuses and there is sufficient evidence to believe that the allegations of the petition are true, or if the court believes that more medical evidence is necessary, the court may make a temporary order committing her to the department of social and health services for a period of not more than five days for purposes of a diagnostic examination.

(4) If after hearing all relevant evidence, including the results of any diagnostic examination, the court finds that the mother has given birth to a baby with fetal alcohol syndrome or addicted to drugs by clear, cogent, and convincing proof, it shall make an order of involuntary insertion of Norplant into the mother.

(5) A woman involuntarily inserted with Norplant under this section shall not have the Norplant implant removed from her body until six months after the court finds she is clean and sober.