BILL REQ. #:  H-0966.2 

Read first time 01/29/13.   Referred to Committee on Judiciary.

     AN ACT Relating to outpatient commitment; reenacting and amending RCW 71.05.020; and adding new sections to chapter 71.05 RCW.

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

Sec. 1   RCW 71.05.020 and 2011 c 148 s 1 and 2011 c 89 s 14 are each reenacted and amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Admission" or "admit" means a decision by a physician or psychiatric advanced registered nurse practitioner that a person should be examined or treated as a patient in a hospital;
     (2) "Antipsychotic medications" means that class of drugs primarily used to treat serious manifestations of mental illness associated with thought disorders, which includes, but is not limited to atypical antipsychotic medications;
     (3) "Attending staff" means any person on the staff of a public or private agency having responsibility for the care and treatment of a patient;
     (4) "Commitment" means the determination by a court that a person should be detained for a period of either evaluation or treatment, or both, in an inpatient or a less restrictive setting;
     (5) "Conditional release" means a revocable modification of a commitment, which may be revoked upon violation of any of its terms;
     (6) "Crisis stabilization unit" means a short-term facility or a portion of a facility licensed by the department of health and certified by the department of social and health services under RCW 71.24.035, such as an evaluation and treatment facility or a hospital, which has been designed to assess, diagnose, and treat individuals experiencing an acute crisis without the use of long-term hospitalization;
     (7) "Custody" means involuntary detention under the provisions of this chapter or chapter 10.77 RCW, uninterrupted by any period of unconditional release from commitment from a facility providing involuntary care and treatment;
     (8) "Department" means the department of social and health services;
     (9) "Designated chemical dependency specialist" means a person designated by the county alcoholism and other drug addiction program coordinator designated under RCW 70.96A.310 to perform the commitment duties described in chapters 70.96A and 70.96B RCW;
     (10) "Designated crisis responder" means a mental health professional appointed by the county or the regional support network to perform the duties specified in this chapter;
     (11) "Designated mental health professional" means a mental health professional designated by the county or other authority authorized in rule to perform the duties specified in this chapter;
     (12) "Detention" or "detain" means the lawful confinement of a person, under the provisions of this chapter;
     (13) "Developmental disabilities professional" means a person who has specialized training and three years of experience in directly treating or working with persons with developmental disabilities and is a psychiatrist, psychologist, psychiatric advanced registered nurse practitioner, or social worker, and such other developmental disabilities professionals as may be defined by rules adopted by the secretary;
     (14) "Developmental disability" means that condition defined in RCW 71A.10.020(((3))) (4);
     (15) "Discharge" means the termination of hospital medical authority. The commitment may remain in place, be terminated, or be amended by court order;
     (16) "Evaluation and treatment facility" means any facility which can provide directly, or by direct arrangement with other public or private agencies, emergency evaluation and treatment, outpatient care, and timely and appropriate inpatient care to persons suffering from a mental disorder, and which is certified as such by the department. A physically separate and separately operated portion of a state hospital may be designated as an evaluation and treatment facility. A facility which is part of, or operated by, the department or any federal agency will not require certification. No correctional institution or facility, or jail, shall be an evaluation and treatment facility within the meaning of this chapter;
     (17) "Gravely disabled" means a condition in which a person, as a result of a mental disorder: (a) Is in danger of serious physical harm resulting from a failure to provide for his or her essential human needs of health or safety; or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety;
     (18) "Habilitative services" means those services provided by program personnel to assist persons in acquiring and maintaining life skills and in raising their levels of physical, mental, social, and vocational functioning. Habilitative services include education, training for employment, and therapy. The habilitative process shall be undertaken with recognition of the risk to the public safety presented by the person being assisted as manifested by prior charged criminal conduct;
     (19) "History of one or more violent acts" refers to the period of time ten years prior to the filing of a petition under this chapter, excluding any time spent, but not any violent acts committed, in a mental health facility or in confinement as a result of a criminal conviction;
     (20) "Imminent" means the state or condition of being likely to occur at any moment or near at hand, rather than distant or remote;
     (21) "Individualized service plan" means a plan prepared by a developmental disabilities professional with other professionals as a team, for a person with developmental disabilities, which shall state:
     (a) The nature of the person's specific problems, prior charged criminal behavior, and habilitation needs;
     (b) The conditions and strategies necessary to achieve the purposes of habilitation;
     (c) The intermediate and long-range goals of the habilitation program, with a projected timetable for the attainment;
     (d) The rationale for using this plan of habilitation to achieve those intermediate and long-range goals;
     (e) The staff responsible for carrying out the plan;
     (f) Where relevant in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual discharge or release, and a projected possible date for discharge or release; and
     (g) The type of residence immediately anticipated for the person and possible future types of residences;
     (22) "Information related to mental health services" means all information and records compiled, obtained, or maintained in the course of providing services to either voluntary or involuntary recipients of services by a mental health service provider. This may include documents of legal proceedings under this chapter or chapter 71.34 or 10.77 RCW, or somatic health care information;
     (23) "Judicial commitment" means a commitment by a court pursuant to the provisions of this chapter;
     (24) "Legal counsel" means attorneys and staff employed by county prosecutor offices or the state attorney general acting in their capacity as legal representatives of public mental health service providers under RCW 71.05.130;
     (25) "Likelihood of serious harm" means:
     (a) A substantial risk that: (i) Physical harm will be inflicted by a person upon his or her own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on oneself; (ii) physical harm will be inflicted by a person upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm; or (iii) physical harm will be inflicted by a person upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; or
     (b) The person has threatened the physical safety of another and has a history of one or more violent acts;
     (26) "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on a person's cognitive or volitional functions;
     (27) "Mental health professional" means a psychiatrist, psychologist, psychiatric advanced registered nurse practitioner, psychiatric nurse, or social worker, and such other mental health professionals as may be defined by rules adopted by the secretary pursuant to the provisions of this chapter;
     (28) "Mental health service provider" means a public or private agency that provides mental health services to persons with mental disorders as defined under this section and receives funding from public sources. This includes, but is not limited to, hospitals licensed under chapter 70.41 RCW, evaluation and treatment facilities as defined in this section, community mental health service delivery systems or community mental health programs as defined in RCW 71.24.025, facilities conducting competency evaluations and restoration under chapter 10.77 RCW, and correctional facilities operated by state and local governments;
     (29) "Peace officer" means a law enforcement official of a public agency or governmental unit, and includes persons specifically given peace officer powers by any state law, local ordinance, or judicial order of appointment;
     (30) "Private agency" means any person, partnership, corporation, or association that is not a public agency, whether or not financed in whole or in part by public funds, which constitutes an evaluation and treatment facility or private institution, or hospital, which is conducted for, or includes a department or ward conducted for, the care and treatment of persons who are mentally ill;
     (31) "Professional person" means a mental health professional and shall also mean a physician, psychiatric advanced registered nurse practitioner, registered nurse, and such others as may be defined by rules adopted by the secretary pursuant to the provisions of this chapter;
     (32) "Psychiatric advanced registered nurse practitioner" means a person who is licensed as an advanced registered nurse practitioner pursuant to chapter 18.79 RCW; and who is board certified in advanced practice psychiatric and mental health nursing;
     (33) "Psychiatrist" means a person having a license as a physician and surgeon in this state who has in addition completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association and is certified or eligible to be certified by the American board of psychiatry and neurology;
     (34) "Psychologist" means a person who has been licensed as a psychologist pursuant to chapter 18.83 RCW;
     (35) "Public agency" means any evaluation and treatment facility or institution, or hospital which is conducted for, or includes a department or ward conducted for, the care and treatment of persons with mental illness, if the agency is operated directly by, federal, state, county, or municipal government, or a combination of such governments;
     (36) "Registration records" include all the records of the department, regional support networks, treatment facilities, and other persons providing services to the department, county departments, or facilities which identify persons who are receiving or who at any time have received services for mental illness;
     (37) "Release" means legal termination of the commitment under the provisions of this chapter;
     (38) "Resource management services" has the meaning given in chapter 71.24 RCW;
     (39) "Secretary" means the secretary of the department of social and health services, or his or her designee;
     (40) "Serious violent offense" has the same meaning as provided in RCW 9.94A.030;
     (41) "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010;
     (42) "Therapeutic court personnel" means the staff of a mental health court or other therapeutic court which has jurisdiction over defendants who are dually diagnosed with mental disorders, including court personnel, probation officers, a court monitor, prosecuting attorney, or defense counsel acting within the scope of therapeutic court duties;
     (43) "Triage facility" means a short-term facility or a portion of a facility licensed by the department of health and certified by the department of social and health services under RCW 71.24.035, which is designed as a facility to assess and stabilize an individual or determine the need for involuntary commitment of an individual, and must meet department of health residential treatment facility standards. A triage facility may be structured as a voluntary or involuntary placement facility;
     (44) "Treatment records" include registration and all other records concerning persons who are receiving or who at any time have received services for mental illness, which are maintained by the department, by regional support networks and their staffs, and by treatment facilities. Treatment records include mental health information contained in a medical bill including but not limited to mental health drugs, a mental health diagnosis, provider name, and dates of service stemming from a medical service. Treatment records do not include notes or records maintained for personal use by a person providing treatment services for the department, regional support networks, or a treatment facility if the notes or records are not available to others;
     (45) "Violent act" means behavior that resulted in homicide, attempted suicide, nonfatal injuries, or substantial damage to property.
     (46) "Outpatient commitment" means court-ordered outpatient treatment for a person who:
     (a) Has had more than two involuntary inpatient or outpatient commitments within the last twenty-four months;
     (b) Is suffering from a mental disorder;
     (c) Is capable of surviving safely in the community with supervision;
     (d) In view of the person's treatment history or current behavior, the person is unlikely to voluntarily participate in outpatient treatment without an order for outpatient commitment; and
     (e) Outpatient treatment that would be provided under an outpatient commitment order is necessary to prevent a relapse, decompensation, or deterioration that is likely to result in the person presenting a likelihood of serious harm or the person becoming gravely disabled within a reasonably short period of time.
     (47) "Outpatient treatment" includes: Medication; individual or group therapy; day or partial day programming activities; services and training, including educational and vocational activities; supervision of living arrangements; and other services prescribed to either alleviate the person's disorder or disability, to maintain semi-independent functioning, or to prevent further deterioration that may reasonably be predicted to result in the need for hospitalization;
     (48) "Outpatient treatment psychiatrist or agency," "supervising psychiatrist, agency, or provider," or similar terms mean the psychiatrist or agency who is responsible for the management and supervision of a person's outpatient treatment under order of the court;
     (49) "Subject of the order" means a person who has been ordered by the court to obtain outpatient treatment under an order of outpatient commitment;
     (50) "Subject of the petition" means a person who, under a petition filed with the court, is alleged to meet the criteria for outpatient commitment.

NEW SECTION.  Sec. 2   (1) A person may be ordered to obtain involuntary outpatient treatment under this chapter if the court finds that the person:
     (a) Has had more than two involuntary inpatient or outpatient commitments within the last twenty-four months;
     (b) Is suffering from a mental disorder;
     (c) Is capable of surviving safely in the community with supervision;
     (d) In view of the person's treatment history or current behavior, the person is unlikely to voluntarily participate in outpatient treatment without an order for outpatient commitment; and
     (e) Outpatient treatment that would be provided under an outpatient commitment order is necessary to prevent a relapse, decompensation, or deterioration that is likely to result in the person presenting a likelihood of serious harm or the person becoming gravely disabled within a reasonably short period of time.
     (2) A person may file a petition, executed subject to the penalties of perjury, with the court alleging that another person meets the criteria for involuntary outpatient treatment. The petition must state:
     (a) Each of the criteria under subsection (1)(a) through (f) of this section for outpatient commitment;
     (b) The petitioner's good faith belief that the subject of the petition meets each of the criteria of this section;
     (c) Facts that support the petitioner's good faith belief that the subject of the petition meets each of the criteria of this section, but the hearing on the petition need not be limited to the stated facts; and
     (d) That the subject of the petition is present within the county where the petition is filed.
     (3) The petitioner may request the court to subpoena witnesses, if necessary, who are needed to support the petition.
     (4) The petition may be accompanied by a statement of a psychiatrist, or of a physician and a mental health professional, who has examined the subject of the petition before the submission of the petition. If the subject of the petition has refused to submit to examination by a psychiatrist, physician, or mental health professional, the fact of the refusal must be alleged in the petition.
     (5) At a probable cause hearing conducted under RCW 71.05.240 or 71.05.310, the court may order outpatient commitment as an option for treatment without the necessity of receiving a petition for outpatient commitment. However, the criteria for outpatient commitment must be met and supported by the evidence.

NEW SECTION.  Sec. 3   (1) The court shall hold a hearing on a petition filed under section 3 of this act as soon as possible, but within six calendar days after filing of the petition.
     (2) Notice of the hearing must be delivered personally or mailed by certified or registered mail, return receipt requested, deliverable to addressee only, to the subject of the petition, and those interested parties identified by the petitioner, if any. All reasonable efforts must be used to notify the subject of the petition of the hearing. The subject and necessary witnesses must be notified as soon as possible, but in all cases at least two court days before the hearing. The petitioner shall certify that the notices have been mailed and to whom, but proof of receipt of the notices is not required. Notice must also be served on any other person that the court designates.
     (3) The notice must include the following:
     (a) The date, time, and place of hearing, a clear statement of the purpose of the hearing and possible consequences to the subject, and a statement of the legal standard upon which outpatient commitment is authorized;
     (b) A copy of the petition; and
     (c) Notice that the subject of the petition is entitled to be represented by an attorney and that the court will appoint a public defender or other attorney for the subject if the subject desires one and is indigent.
     (4) The court may continue the hearing for failure to timely notify the subject of the petition or those interested parties whom the petitioner designates should receive notice.
     (5) The time and form of the procedure incident to hearing the issues in the petition must be provided by court rule and be consistent with this section.
     (6) The hearing may be held at a convenient place within the circuit. The subject of the petition, an interested person, or the court upon its own motion may request a hearing in another court because of inconvenience to the parties, witnesses, or the court, or because of the subject's physical or mental condition.
     (7) The hearing must be closed to the public, unless the subject of the petition requests otherwise.
     (8) The subject of the petition shall be present at the hearing. However, if the subject has been notified of the petition and does not appear at the hearing, the court, in its discretion, may go forward with the hearing.
     (9) The subject of the petition may be represented by an attorney. If the subject desires an attorney and is indigent, or if the court determines that the legal or factual issues raised are of such complexity that the assistance of an attorney is necessary for an adequate presentation of the merits or that the subject of the petition is unable to speak for the subject's self, the court shall order the appointment of a public defender or other attorney to represent the subject and continue the hearing for not more than five days.
     (10) A subject of the petition may not be ordered to outpatient commitment unless at least one psychiatrist, or a licensed physician and a mental health professional, states the full condition of the subject of the petition and the facts that support the allegation that the subject meets all the criteria for outpatient commitment, the recommended outpatient treatment, and the rationale for the recommended outpatient treatment.
     (11) If the subject of the petition has refused to be examined by a licensed psychiatrist, the court may request the subject to consent to examination by a psychiatrist or agency appointed by the court. If the subject of the petition does not consent and the court finds sufficient evidence to believe that the allegations in the petition are true, the court may order the commitment of the subject to a psychiatric facility for examination. The commitment may not be for more than seventy-two hours. The examining psychiatrist shall submit the findings and recommendations to the court.
     (12) The subject of the petition may secure one or more psychiatric examinations and present the findings as evidence at the hearing.

NEW SECTION.  Sec. 4   (1) If, after hearing all relevant evidence, including the results of an examination ordered by the court, if any, the court finds that the subject of the petition filed under section 3 of this act does not meet the criteria for outpatient commitment, the court shall dismiss the petition.
     (2) If, after hearing all relevant evidence, including the results of an examination ordered by the court, if any, the court finds by clear and convincing evidence that the subject of the petition meets the criteria for outpatient commitment, the court shall order the subject to outpatient commitment and treatment for a period of not more than twelve months.

NEW SECTION.  Sec. 5   (1) The court shall state the beginning and ending dates of the period of commitment, which may not exceed twelve months, in an order made under section 5 of this act.
     (2) The order must also state who should receive notice of intent to terminate the order of outpatient commitment early, in the event that the outpatient treatment psychiatrist or agency determines, before the end of the court-ordered period of treatment, that the order of outpatient commitment should be terminated early.
     (3) The court shall also designate on the order the outpatient treatment psychiatrist or agency who is to be responsible for the management and supervision of the subject's outpatient treatment, or shall designate the regional support network, who in turn shall designate the agency or psychiatrist. However, the psychiatrist or agency must agree to the designation.
     (4) The court shall order the subject to obtain outpatient treatment under the treatment plan. The order shall require that the subject cooperate with the treatment provider and comply with the course of treatment.

NEW SECTION.  Sec. 6   The regional support network shall assure that resources are available to cover costs related to outpatient commitment for persons ordered to outpatient commitment.

NEW SECTION.  Sec. 7   A person adversely affected or aggrieved by an order of outpatient commitment under sections 3 through 6 of this act is entitled to judicial review.

NEW SECTION.  Sec. 8   An outpatient commitment order issued under section 5 of this act is automatically and fully terminated at the end of the court-ordered period of outpatient commitment, a period of not more than twelve months, unless a new court order has been obtained as provided in sections 3 through 6 of this act.

NEW SECTION.  Sec. 9   (1) A person may petition the court for the early termination of an order of outpatient commitment issued under sections 3 through 6 of this act during the period of outpatient treatment if done more than sixty days after the most recent hearing involving the subject of the order. The petition must be filed, notice given, hearing held, and order made in the same manner as provided for the original petition alleging that the subject of the order met the criteria for outpatient commitment.
     (2) The treating psychiatrist may commence the early termination procedure for a subject of the order if the treating psychiatrist finds that the subject no longer meets the criteria for outpatient commitment.
     (3) To commence the early termination procedure, the treating psychiatrist shall send to the clerk of the court that issued the order for outpatient commitment notification that, in the psychiatrist's opinion, the order should be terminated before the end of the period specified in the court order.
     (4) The clerk of the court shall, upon receipt of a notification under subsection (3) of this section, prepare and mail, to the persons whom the court order specified are entitled to notice, a notice of intent of early termination of the order. The notice of early termination must be mailed at least five days before the intended date of termination.
     (5) If an objection is not filed within five days of the mailing of notice, the court shall enter an order of termination.

NEW SECTION.  Sec. 10   A person who has received a notice of intent to terminate an order of outpatient commitment early may file an objection with the court. Upon receipt of an objection, the court shall hold a hearing on the termination. The hearing must be conducted as provided in section 4 of this act. If the court finds by clear and convincing evidence that the subject of the order continues to meet the criteria for outpatient commitment, the court shall order the subject to continue the outpatient treatment for the unexpired period of its earlier order. If the court finds that the subject of the order does not meet the criteria for outpatient commitment, the court shall dismiss the objection and terminate the order early.

NEW SECTION.  Sec. 11   Before the expiration of the period of outpatient commitment ordered by the court, a person, including the treating psychiatrist, may file a petition with the court for an order of continued outpatient commitment. The petition must be filed and notice provided in the same manner as under sections 3 and 4 of this act. The court shall hold a hearing on the petition and make its decision in the same manner as provided under section 4 of this act. The court may order the continued outpatient commitment for not more than twelve months after the date of the hearing. This section is in addition to the provisions on the objection to termination.

NEW SECTION.  Sec. 12   Sections 2 through 12 of this act are each added to chapter 71.05 RCW.