Background:

Under the Involuntary Treatment Act (ITA), a person may be ordered to undergo involuntary mental health treatment if the person, as a result of a mental disorder, poses a likelihood of serious harm, is gravely disabled, or is in need of assisted outpatient treatment. Designated mental health professionals (DMHPs) are responsible for investigating and determining whether an individual may be in need of involuntary treatment. The DMHP may petition for initial detention for evaluation and treatment for up to 72 hours if the person poses a likelihood of serious harm or is gravely disabled. If the person is in need of assisted outpatient treatment, the DMHP may petition for initial involuntary outpatient evaluation. After the initial 72-hour detention, the facility providing treatment may petition the court to have the person committed for further mental health treatment for 14 days. Upon subsequent petitions and hearings, a court may order up to an additional 90 days of commitment at a state hospital, followed by successive terms of up to 180 days of commitment.

When entering an order for involuntary treatment on the basis that the person poses a likelihood of serious harm or is gravely disabled, the court must order an appropriate less restrictive course of treatment, rather than inpatient treatment, if the court finds that treatment in a less restrictive alternative (LRA) than detention is in the best interest of the person or others. If a person is found to be in need of assisted outpatient treatment, and does not pose a likelihood of serious harm and is not gravely disabled, the person may only be ordered to LRA treatment, and may not be ordered to inpatient treatment. An LRA order might require a person to reside at a specific location, participate in outpatient treatment appointments, follow treatment recommendations, and take prescribed medications.

Court Review of Initial Detention Decisions.

When a DMHP decides not to detain a person for evaluation and treatment, or does not take action to have a person detained within 48 hours of a request for investigation, the person's immediate family member, guardian, or conservator may petition the superior court for the person's initial detention. The petition must include a sworn declaration of the petitioner that describes why the person should be detained for evaluation and treatment. If the court finds that the petition presents sufficient evidence, the court must order the DMHP to provide a detailed description of the investigation and decision not to file for initial detention, along with a copy of all information material to the DMHP's decision.‪ If the court enters an order for initial detention, the court must provide the order of detention to the DMHP agency, which must execute the order without delay. An order for detention expires after 180 days.‪‬‬‬‬‬

Upon receiving a request for an investigation for an initial detention of a person, a DMHP or DMHP agency must inquire whether the request is from an immediate family member, guardian, or conservator. If the DMHP decides not to detain the person, or if the person is not detained within 48 hours, the DMHP or DMHP agency must inform the immediate family member, guardian, or conservator of the process for petitioning the court for detention.

Less Restrictive Alternative Treatment Orders.

Legislation enacted in 2015 (Engrossed Second Substitute House Bill 1450) provided increased statutory direction regarding treatment services that must be provided under an LRA order and amended the process for issuance and modification or revocation of LRA orders. Designated mental health professionals and the Department of Social and Health Services may institute proceedings for modification or revocation of an LRA order and may detain the person pending a hearing. An LRA order may be modified or revoked if the person fails to adhere to the terms and conditions of his or her release, is substantially deteriorating or decompensating, or poses a likelihood of serious harm. A petition for modification or revocation of an LRA order must be filed with the court that originally ordered commitment, and venue for the proceeding is in the court where the petition is filed. Prior to enactment of the 2015 legislation, a petition for modification or revocation of an LRA order could be filed with the court that originally ordered commitment or with the court in the county in which the person is detained.

Consultation with Emergency Room Physicians.

A DMHP evaluating a person for initial detention under the ITA must consult with any examining emergency room physician regarding the physician's observations and opinions of the person's condition and whether, in the view of the physician, it is appropriate to detain the person. The DMHP must take serious consideration of observations and opinions by examining emergency room physicians when deciding whether a person should be detained, and must document the consultation and the physician's observations or opinions regarding whether detention of the person is appropriate.

Intent language in the ITA provides that courts, when construing the requirements of the ITA, must focus on the merits of the petition, rather than procedural requirements, except in cases where the requirements have been totally disregarded. In a 2016 Court of Appeals case, In re Detention of K.R., the Court overturned a 14-day commitment order on the grounds that the DMHP had totally disregarded the requirements to consult with any examining emergency room physician, take serious consideration of the physician's observation and opinions, and document the consultation with the physician.

Integrated Treatment System for Mental Health and Substance Use Disorders.

Legislation was enacted in 2016 (Engrossed Third Substitute House Bill 1713) to integrate the involuntary mental health and substance use disorder treatment systems effective April 1, 2018. Under the integrated system, a designated crisis responder (DCR) is responsible for conducting an evaluation for civil commitment based on the presence of a mental disorder or substance use disorder. The DCR may detain the person to an evaluation and treatment facility, secure detox facility, or approved substance use disorder treatment facility. After initial detention, the treating facility or the DCR may petition for 14-day involuntary detention or 90-day LRA for mental health or substance use disorder treatment. The petition must be signed by two professionals who have examined the person, in the following combinations:

two physicians;
one physician and a mental health professional;
one physician assistant and a mental health professional; or
one psychiatric advanced registered nurse practitioner and a mental health professional.

Chemical Dependency Evaluations and Petitions.

Under the chemical dependency involuntary treatment laws in effect until April 1, 2018, a person may be committed for chemical dependency treatment if the person, due to chemical dependency, poses a likelihood of serious harm or is gravely disabled. An initial commitment may be for a period of 14 days, or up to 90 days of LRA treatment. Upon petition, a person may be committed for involuntary treatment for a subsequent period of 90 days. The court may not order commitment of a person if an approved substance use disorder treatment program is not available. The petition must be signed by two professionals who have examined the person, in the following combinations:

two physicians;
one physician and a mental health professional;
one physician assistant and a mental health professional; or
one psychiatric advanced registered nurse practitioner and a mental health professional.

Designated chemical dependency specialists (DCDSs) are responsible for investigating and determining whether to detain a person who may be in need of chemical dependency treatment. A DCDS must be certified by the Department of Health as a chemical dependency professional or meet or exceed the requirements for certification. In addition a DCDS must demonstrate knowledge of chemical dependency involuntary commitment laws and differential assessment of mentally ill and chemically dependent persons.

The 2016 legislation made short-term changes to the chemical dependency involuntary treatment laws that are in effect until the systems are integrated on April 1, 2018, to make them more consistent with the procedures of the ITA. One of the short-term changes is a requirement that a petition for involuntary chemical dependency treatment must be signed by a combination of two qualified professionals who have examined the person. The list of professionals that may sign a petition for 14-day or 90-day treatment includes physicians, psychiatric advanced registered nurse practitioners, mental health professionals, and physician assistants.

Summary of Bill:

Court Review of Initial Detention Decisions.

A petition for initial detention filed by a family member, guardian, or conservator must be filed within 10 calendar days following the designated mental health professional (DMHP) investigation or request for a DMHP investigation. If more than 10 days have elapsed, the family member, guardian or conservator must request a new DMHP investigation. A DMHP or DMHP agency must, upon request, disclose the date of a DMHP investigation to an immediate family member, guardian, or conservator of a person investigated.

If a court enters an order for initial detention, the court must issue a written order for apprehension of the person by a peace officer for delivery of the person to a facility or emergency room. The order of detention should contain the advisement of rights the person would receive if the person were detained by a DMHP. The DMHP serving the jurisdiction of the court must collaborate and coordinate with law enforcement in the apprehension and detention of the person, including sharing information relating to risk and information that will assist in locating the person.

By December 15, 2017, the Administrative Office of the Courts (AOC) must develop a user's guide to assist pro se litigants in the preparation and filing of a petition for initial detention and develop a model order of detention that contains an advisement of rights for the detained person. In developing these materials, the AOC must collaborate with stakeholders including judges, prosecutors, defense attorneys, the Department of Social and Health Services, behavioral health advocates, and families.

Less Restrictive Alternative Treatment Orders.

A petition for revocation of a less restrictive alternative order, and order of apprehension and detention, must be filed with the court of the county where the person is currently located or being detained. Notice of the filing must be provided to the court that originally ordered commitment, if different from the court of revocation, within two judicial days of the person's detention.

Consultation with Emergency Room Physicians.

The requirement that a DMHP consult with any examining emergency room physician when determining whether a person should be detained is revised. If a person subject to evaluation under the Involuntary Treatment Act (ITA) is located in an emergency room at the time of evaluation, the DMHP must take serious consideration of observations and opinions by an examining emergency room physician, advanced registered nurse practitioner, or physician assistant in determining whether detention is appropriate. If the examining professional is not available for consultation, the DMHP must document his or her review of the professional's written observations or opinions regarding whether detention of the person is appropriate.

The requirement that a DMHP consult with and take serious consideration of an examining professional's observations and opinions does not create an exception to the general rule stated in the ITA that courts should decide ITA petitions on their merits in light of the state's parens patriae or police power interest in protecting the safety of individuals and the public.

Integrated Treatment System for Mental Health and Substance Use Disorders.

Under the integrated mental health and substance use disorder treatment system, chemical dependency professionals are included in the definition of "professional person" and added to the list of persons who may examine and sign a petition for involuntary treatment of a person. A person who is detained, accepted, or admitted to an evaluation and treatment facility must be evaluated by a mental health professional. A person detained, accepted, or admitted to a secure detox facility must be evaluated by a chemical dependency professional.

The combination of professionals who may sign a petition for 14-day involuntary detention or 90-day LRA for mental health or substance use disorder treatment is revised to require signatures by:

one physician, physician assistant, or advanced registered nurse practitioner; and
one physician, physician assistant, advanced registered nurse practitioner, mental health professional, or chemical dependency professional.

If the person is detained for the purpose of mental health treatment, the person must be examined by a mental health professional.

Chemical Dependency Evaluations and Petitions.

Chemical dependency professionals replace mental health professionals in the list of qualified professionals that may examine and sign a petition for involuntary commitment of a person who may be in need of substance use disorder treatment under the chemical dependency laws in effect until April 1, 2018. In addition, the combination of professionals who may sign a petition for involuntary detention is revised to require signatures by:

one physician, physician assistant, or advanced registered nurse practitioner; and
one physician, physician assistant, advanced registered nurse practitioner, or chemical dependency professional.

References to "chemical dependency" and "chemical dependency treatment" are changed to "substance use disorder" and "substance use disorder treatment."