H-2524

AN ACT Relating to involuntary use of long-term pharmaceutical birth control for mothers who have given birth to a child with drug addiction; adding new sections to chapter 70.96A RCW; and creating new sections.

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 controlled substances are unable to make reasoned decisions that help ensure the birth of a healthy baby. The creation of long-term pharmaceutical birth control 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 70.96A RCW to read as follows:

(1) The department of social and health services shall operate four pilot projects in communities served by the parent and child assistance program. The projects shall provide services to women addicted to controlled substances who give birth to drug-addicted infants. The projects shall provide hospital screening in project communities to identify all babies born to women addicted to controlled substances. A licensed physician who believes, based on the physician's reasonable medical judgment, that an infant is drug-affected shall conduct appropriate test to determine whether the infant is drug-affected. If the appropriate tests establish that the baby is drug-affected, the physician shall notify the designated chemical dependency specialist in the pilot site established under this section and the department of the name and address of the parents of the infant.

(2) Upon the first referral of a woman addicted to controlled substances who has given birth to a drug-addicted baby, the designated chemical dependency specialist in a pilot site shall:

(a) Initiate the procedures under section 3 of this act to require the mother to participate in chemical dependency treatment, counseling, and support services, modeled after the successful six-year demonstration birth-to-three program at the University of Washington; and

(b) Notify the mother of the opportunity for voluntary, publicly funded tubal ligation surgery as provided under section 4 of this act.

The department shall make available, or cause to be made available, birth control services, information, and counseling to a mother referred under this subsection.

(3) Upon the second, and any subsequent, referral of a woman addicted to controlled substances who has given birth to a drug-addicted baby, the designated chemical dependency specialist shall notify the mother of the opportunity for voluntary, publicly funded tubal ligation surgery as provided under section 4 of this act. The designated chemical dependency specialist in a pilot site shall initiate the procedures under section 3 of this act to:

(a) Require the mother to participate in chemical dependency treatment, counseling, and support services; and

(b) Require the mother to participate in mandatory long-term pharmaceutical birth control and related education and counseling unless a physician makes a written finding that, based on an evaluation of the medical and physical consequences to the mother, long-term pharmaceutical birth control would be medically harmful to the mother.

NEW SECTION. Sec. 3. A new section is added to chapter 70.96A RCW to read as follows:

(1) If a designated chemical dependency specialist in a pilot site established under section 2 of this act receives information alleging that a woman has given birth to a baby who is 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 related to the woman's participation in chemical dependency treatment, counseling, and support services and the use of long-term pharmaceutical birth control. 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 required to participate in mandatory chemical dependency treatment, counseling, and support services and use long-term pharmaceutical birth control 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 required to participate in mandatory chemical dependency treatment, counseling, and support services, and use long-term pharmaceutical birth control, or upon motion of the petitioner with written permission of the woman, 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 required to participate in mandatory chemical dependency treatment, counseling, and support services, and use long-term pharmaceutical birth control, 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 section. Upon motion by the woman who may be required to participate in mandatory chemical dependency treatment, counseling, and support services, and to use long-term pharmaceutical birth control, 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 addicted to a controlled substance, or in the case of a minor incapacitated by drug addiction, and has given birth to her second drug-addicted baby 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 the 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 including evaluation of the medical and physical consequences of long-term pharmaceutical birth control use by the mother.

(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 addicted to a controlled substance by clear, cogent, and convincing proof, it shall make an order requiring a disposition under this section.

(a) If this is the woman's first child addicted to a controlled substance, the court shall require the mother to participate in chemical dependency treatment, counseling, and support services, modeled after the successful six-year demonstration birth-to-three program at the University of Washington program. The court shall refer the mother to voluntary family planning services, education, and counseling.

(b) If the court finds that the woman has given birth to a second or subsequent baby addicted to a controlled substance, the woman shall be ordered to participate in mandatory chemical dependency treatment, counseling, and support services. The court shall order the mother to use long-term pharmaceutical birth control unless a physician makes a written finding that, based on an evaluation of the medical and physical consequences to the mother, long-term pharmaceutical birth control would be medically harmful to the mother.

(5) A woman required to use long-term pharmaceutical birth control under this section shall not be permitted to terminate the use of long-term pharmaceutical birth control until six months after the court finds she is not using nonprescription controlled substances.

NEW SECTION. Sec. 4. A new section is added to chapter 70.96A RCW to read as follows:

Within available funds, the department shall arrange and pay for any tubal ligation surgery requested under section 2 of this act if the mother's income is less than two hundred percent of the federal poverty level. Refusal to obtain a tubal ligation under section 2 of this act shall not subject a mother to any procedures established under chapter . . ., Laws of 1997 (this act) or otherwise diminish her rights.

NEW SECTION. Sec. 5. The University of Washington shall conduct an outcome evaluation of the pilot sites, including the voluntary and mandatory service components and the related legal procedures established by chapter . . ., Laws of 1997 (this act).