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                       ENGROSSED SUBSTITUTE SENATE BILL 5672

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State of Washington              52nd Legislature             1991 Regular Session

By Senate Committee on Health & Long‑Term Care (originally sponsored by Senators Niemi, McDonald, West, L. Smith and Sutherland; by request of Office of Financial Management and Dept. of Social & Health Services).

Read first time March 6, 1991.Changing provisions relating to antipsychotic medication.

     AN ACT Relating to antipsychotic medicine; amending RCW 71.05.120, 71.05.130, 71.05.210, and 71.05.370; and adding a new section to chapter 71.05 RCW.

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

NEW SECTION. Sec. 1.  A new section is added to chapter 71.05 RCW to read as follows:

     (1) A person found to be gravely disabled or presents a likelihood of serious harm as a result of a mental disorder has a right to refuse antipsychotic medication unless it is determined that the failure to medicate may result in a likelihood of serious harm or substantial deterioration or substantially prolong the length of involuntary commitment and there is no less intrusive course of treatment than medication in the best interest of that person.

     (2) The department shall adopt rules to carry out the purposes of this chapter.  These rules shall include:

     (a) An attempt to obtain the informed consent of the person prior to administration of antipsychotic medication.

     (b) For short-term treatment up to thirty days, the right to refuse antipsychotic medications unless there is an additional concurring medical opinion approving medication.

     (c) For continued treatment beyond thirty days through the hearing on any petition filed under RCW 71.05.370(7), the right to periodic review of the decision to medicate by the medical director or designee.

     (d) Administration of antipsychotic medication in an emergency and review of this decision within twenty-four hours.  An emergency exists if the person presents an imminent likelihood of serious harm to self or others, and medically acceptable alternatives to administration of antipsychotic medications are not available or are unlikely to be successful; and in the opinion of the physician, the person's condition constitutes an emergency requiring the treatment be instituted prior to obtaining a second medical opinion.

     (e) Documentation in the medical record of the physician's attempt to obtain informed consent and the reasons why antipsychotic medication is being administered over the person's objection or lack of consent.

     Sec. 2.  RCW 71.05.120 and 1989  c 120 s 3 are each amended to read as follows:

     (1) No officer of a public or private agency, nor the superintendent, professional person in charge, his or her professional designee, or attending staff of any such agency, nor any public official performing functions necessary to the administration of this chapter, nor peace officer responsible for detaining a person pursuant to this chapter, nor any county designated mental health professional, nor the state, a unit of local government, or an evaluation and treatment facility shall be civilly or criminally liable for performing duties pursuant to this chapter with regard to the decision of whether to admit, release, administer antipsychotic medications ((on an emergency basis)), or detain a person for evaluation and treatment:  PROVIDED, That such duties were performed in good faith and without gross negligence.

     (2) This section does not relieve a person from giving the required notices under RCW 71.05.330(2) or 71.05.340(1)(b), or the duty to warn or to take reasonable precautions to provide protection from violent behavior where the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.  The duty to warn or to take reasonable precautions to provide protection from violent behavior is discharged if reasonable efforts are made to communicate the threat to the victim or victims and to law enforcement personnel.

     Sec. 3.  RCW 71.05.130 and 1989 c 120 s 4 are each amended to read as follows:

     In any judicial proceeding for involuntary commitment or detention, ((or administration of antipsychotic medication,)) or in any proceeding challenging such commitment or detention, ((or administration of antipsychotic medication,)) the prosecuting attorney for the county in which the proceeding was initiated shall represent the individuals or agencies petitioning for commitment or detention ((or administration of antipsychotic medication)) and shall defend all challenges to such commitment or detention ((or administration of antipsychotic medication)):  PROVIDED, That after January 1, 1980, the attorney general shall represent and provide legal services and advice to state hospitals or institutions with regard to all provisions of and proceedings under this chapter except in proceedings initiated by such hospitals and institutions seeking fourteen day detention ((and administration of antipsychotic medication)).

     Sec. 4.  RCW 71.05.210 and 1989 c 120 s 6 are each amended to read as follows:

     Each person involuntarily admitted to an evaluation and treatment facility shall, within twenty‑four hours of his or her admission, be examined and evaluated by a licensed physician who may be assisted by a ((physician's)) physician assistant according to chapter 18.71A RCW or a nurse practitioner according to chapter 18.88 RCW and a mental health professional as defined in this chapter, and shall receive such treatment and care as his or her condition requires including treatment on an outpatient basis for the period that he or she is detained, except that, beginning twenty‑four hours prior to a court proceeding, the individual may refuse all but emergency life‑saving treatment, and the individual shall be informed at an appropriate time of his or her right to such refusal of treatment.  Such person shall be detained up to seventy‑two hours, if, in the opinion of the professional person in charge of the facility, or his or her professional designee, the person presents a likelihood of serious harm to himself or herself or others, or is gravely disabled.  A person who has been detained for seventy‑two hours shall no later than the end of such period be released, unless referred for further care on a voluntary basis, or detained pursuant to court order for further treatment as provided in this chapter.

     If, after examination and evaluation, the licensed physician and mental health professional determine that the initial needs of the person would be better served by placement in an alcohol treatment facility, then the person shall be referred to an approved treatment ((facility)) program defined under RCW 70.96A.020.

     An evaluation and treatment center admitting any person pursuant to this chapter whose physical condition reveals the need for hospitalization shall assure that such person is transferred to an appropriate hospital for treatment.  Notice of such fact shall be given to the court, the designated attorney, and the designated county mental health professional and the court shall order such continuance in proceedings under this chapter as may be necessary, but in no event may this continuance be more than fourteen days.

     Sec. 5.  RCW 71.05.370 and 1989 c 120 s 8 are each amended to read as follows:

     Insofar as danger to the individual or others is not created, each person involuntarily detained, treated in a less restrictive alternative course of treatment, or committed for treatment and evaluation pursuant to this chapter shall have, in addition to other rights not specifically withheld by law, the following rights, a list of which shall be prominently posted in all facilities, institutions, and hospitals providing such services:

     (1) To wear his or her own clothes and to keep and use his or her own personal possessions, except when deprivation of same is essential to protect the safety of the resident or other persons;

     (2) To keep and be allowed to spend a reasonable sum of his or her own money for canteen expenses and small purchases;

     (3) To have access to individual storage space for his or her private use;

     (4) To have visitors at reasonable times;

     (5) To have reasonable access to a telephone, both to make and receive confidential calls;

     (6) To have ready access to letter writing materials, including stamps, and to send and receive uncensored correspondence through the mails;

     (7) Not to consent to the administration of antipsychotic medications beyond the hearing conducted pursuant to RCW 71.05.320(2) or the performance of ((shock treatment, the administration of antipsychotic medications,)) electroconvulsant therapy or surgery, except emergency life‑saving surgery, ((and not to have shock treatment, antipsychotic medications, or nonemergency surgery in such circumstance)) unless ordered by a court of competent jurisdiction pursuant to the following standards and procedures:

     (a) ((Shock treatment and)) The administration of antipsychotic medication or electroconvulsant therapy shall not be ordered unless the petitioning party proves by clear, cogent, and convincing evidence that there exists a compelling state interest that justifies overriding the patient's lack of consent to ((shock treatment or)) the administration of antipsychotic medications or electroconvulsant therapy, that the proposed treatment is necessary and effective, and that medically acceptable alternative forms of treatment are not available, have not been successful, or are not likely to be effective.

     (b) The court shall make specific findings of fact concerning:  (i) The existence of one or more compelling state interests; (ii) the necessity and effectiveness of the treatment; and (iii) the person's desires regarding the proposed treatment.  If the patient is unable to make a rational and informed decision about consenting to or refusing the proposed treatment, the court shall make a substituted judgment for the patient as if he or she were competent to make such a determination.

     (c) The person shall be present at any hearing on a request to administer ((shock treatment or)) antipsychotic medication((s)) or electroconvulsant therapy filed pursuant to this subsection.  The person has the right:  (i) To be represented by an attorney; (ii) to present evidence; (iii) to cross‑examine witnesses; (iv) to have the rules of evidence enforced; (v) to remain silent; (vi) to view and copy all petitions and reports in the court file; and (vii) to be given reasonable notice and an opportunity to prepare for the hearing.  The court may appoint a psychiatrist, psychologist within their scope of practice, or physician to examine and testify on behalf of such person.  The court shall appoint a psychiatrist, psychologist within their scope of practice, or physician designated by such person or the person's counsel to testify on behalf of the person in cases where an order for ((shock treatment)) electroconvulsant therapy is sought.

     (d) An order for the administration of antipsychotic medications entered following a hearing conducted pursuant to this section shall be effective for the period of the current involuntary treatment order, ((any succeeding order entered pursuant to RCW 71.05.320(1),)) and any interim period during which the person is awaiting trial or hearing on a new petition for involuntary treatment or involuntary medication.  ((Upon a request timely filed, a review of any such medication order shall be conducted by the court at the hearing on a petition filed pursuant to RCW 71.05.300.  If a succeeding involuntary treatment order is entered pursuant to RCW 71.05.320(2), a person who refuses to consent to the administration of antipsychotic medications shall be entitled to an evidentiary hearing in accordance with this section.))

(e) Any person detained pursuant to RCW 71.05.320(2), who subsequently refuses antipsychotic medication, shall be entitled to the procedures set forth in RCW 71.05.370(7).

     (((e))) (f) Antipsychotic medication may be administered to a nonconsenting person detained or committed pursuant to this chapter without a court order under the following circumstances:

     (i) A person presents an imminent likelihood of serious harm to self or others;

     (ii) Medically acceptable alternatives to administration of antipsychotic medications are not available, have not been successful, or are not likely to be effective; and

     (iii) In the opinion of the physician with responsibility for treatment of the person, or his or her designee, the person's condition constitutes an emergency requiring the treatment be instituted before a judicial hearing as authorized pursuant to this section can be held.

     If antipsychotic medications are administered over a person's lack of consent pursuant to this subsection, a petition for an order authorizing the administration of antipsychotic medications shall be filed on the next judicial day.  The hearing shall be held within two judicial days.  If deemed necessary by the physician with responsibility for the treatment of the person, administration of antipsychotic medications may continue until the hearing is held;))

     (8) To dispose of property and sign contracts unless such person has been adjudicated an incompetent in a court proceeding directed to that particular issue;

     (9) Not to have psychosurgery performed on him or her under any circumstances.

NEW SECTION. Sec. 6.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.