H-4659 _______________________________________________
SUBSTITUTE HOUSE BILL NO. 1656
_______________________________________________
State of Washington 50th Legislature 1988 Regular Session
By House Committee on Human Services (originally sponsored by Representatives Brekke and Armstrong)
Read first time 2/5/88.
AN ACT Relating to drug addiction; amending RCW 5.62.020, 18.83.110, 70.96A.020, 70.96A.120, and 70.96A.140; reenacting and amending RCW 5.60.060; and adding a new section to chapter 70.96A RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. Section 294, page 187, Laws of 1854 as last amended by section 1501, chapter 212, Laws of 1987 and by section 11, chapter 439, Laws of 1987 and RCW 5.60.060 are each reenacted and amended to read as follows:
(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding against a spouse if the marriage occurred subsequent to the filing of formal charges against the defendant, nor to a criminal action or proceeding for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian, nor to a proceeding under chapter 70.96A or 71.05 RCW: PROVIDED, That the spouse of a person sought to be detained under chapter 70.96A or 71.05 RCW may not be compelled to testify and shall be so informed by the court prior to being called as a witness.
(2) An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.
(3) A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.
(4) Subject to the limitations under RCW 70.96A.140 or 71.05.250, a physician or surgeon or osteopathic physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient, except as follows:
(a) In any judicial proceedings regarding a child's injury, neglect, or sexual abuse or the cause thereof; and
(b) Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.
(5) A public officer shall not be examined as a witness as to communications made to him or her in official confidence, when the public interest would suffer by the disclosure.
Sec. 2. Section 2, chapter 447, Laws of 1985 as amended by section 1, chapter 212, Laws of 1986 and RCW 5.62.020 are each amended to read as follows:
No registered nurse providing primary care or practicing under protocols, whether or not the physical presence or direct supervision of a physician is required, may be examined in a civil or criminal action as to any information acquired in attending a patient in the registered nurse's professional capacity, if the information was necessary to enable the registered nurse to act in that capacity for the patient, unless:
(1) The patient consents to disclosure or, in the event of death or disability of the patient, his or her personal representative, heir, beneficiary, or devisee consents to disclosure; or
(2) The information relates to the contemplation or execution of a crime in the future, or relates to the neglect or the sexual or physical abuse of a child, or of a vulnerable adult as defined in RCW 74.34.020, or to a person subject to proceedings under chapter 70.96A, 71.05, or 71.34 RCW.
Sec. 3. Section 11, chapter 305, Laws of 1955 as last amended by section 12, chapter 439, Laws of 1987 and RCW 18.83.110 are each amended to read as follows:
Confidential communications between a client and a psychologist shall be privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between attorney and client, but this exception is subject to the limitations under RCW 70.96A.140 and 71.05.250.
Sec. 4. Section 2, chapter 122, Laws of 1972 ex. sess. and RCW 70.96A.020 are each amended to read as follows:
For the purposes of this chapter the following words and phrases shall have the following meanings unless the context clearly requires otherwise:
(1)
"Alcoholic" means a person who ((habitually lacks self-control as
to the use of alcoholic beverages, or uses alcoholic beverages to the extent
that his health is substantially impaired or endangered or his social or
economic function is substantially disrupted)) suffers from the disease
of alcoholism, characterized by a physiological dependency on alcoholic
beverages, loss of control over the amount and circumstances of use, symptoms
of tolerance, physiological and/or psychological withdrawal if use is reduced
or discontinued, and impairment of health or disruption of social or economic
functioning;
(2) "Drug addict" means a person who uses drugs other than alcohol in a chronic, compulsive, or uncontrollable manner, to the extent that it is seriously interfering with the individual's health, economic, or social functioning. Drug addiction is characterized by a compulsive desire for one or more drugs, loss of control when exposed to one or more drugs, and continued use in spite of adverse consequences;
(3) "Approved treatment facility" means a treatment agency operating under the direction and control of the department of social and health services or providing treatment under this chapter through a contract with the department under RCW 70.96A.080(6) and meeting the standards prescribed in RCW 70.96A.090(1) and approved under RCW 70.96A.090(3) or meeting the standards prescribed in and approved under RCW 69.54.030;
(((3)))
(4) "Secretary" means the secretary of the department of
social and health services;
(((4)))
(5) "Department" means the department of social and health services;
(((5)
"Director" means the director of the division of alcoholism;))
(6) "Emergency service patrol" means a patrol established under RCW 70.96A.170;
(7)
"Incapacitated by alcohol or other drugs" means that a person,
as a result of the use of alcohol or other drugs, has his or her
judgment so impaired that he or she is incapable of realizing and making
a rational decision with respect to ((his)) the need for
treatment or care and constitutes a danger to himself or herself,
to any other person, or to property;
(8) "Gravely disabled by alcohol or other drugs" means that a person, as a result of the use of alcohol or other drugs: (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 a repeated and escalating loss of cognition or volitional control over his or her actions and is not receiving care as essential for his or her health or safety;
(9) "Incompetent person" means a person who has been adjudged incompetent by the superior court;
(((9)))
(10) "Intoxicated person" means a person whose mental or
physical functioning is substantially impaired as a result of the use of
alcohol or other drugs;
(((10)))
(11) "Treatment" means the broad range of emergency,
outpatient, intermediate, and inpatient and emergency services and care,
including diagnostic evaluation, medical, psychiatric, psychological, and
social service care, vocational rehabilitation and career counseling, which may
be extended to alcoholics, drug addicts, persons incapacitated by
alcohol or other drugs, and intoxicated persons;
(12) "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;
(13) "Licensed physician" means a person licensed to practice medicine or osteopathy in the state of Washington.
Sec. 5. Section 12, chapter 122, Laws of 1972 ex. sess. as last amended by section 13, chapter 439, Laws of 1987 and RCW 70.96A.120 are each amended to read as follows:
(1) An intoxicated person may come voluntarily to an approved treatment facility for treatment. A person who appears to be intoxicated in a public place and to be in need of help, if he or she consents to the proffered help, may be assisted to his or her home, an approved treatment facility or other health facility.
(2) Except
for a person who may be apprehended for possible violation of laws not relating
to alcoholism, drug addiction, or intoxication and except for a person
who may be apprehended for possible violation of laws relating to driving or
being in physical control of a vehicle while intoxicated and except for a
person who may wish to avail himself or herself of the provisions of RCW
46.20.308, a person who appears to be incapacitated or gravely disabled
by alcohol or other drugs and who is in a public place or who has
threatened, attempted, or inflicted physical harm on himself, herself, or
another, shall be taken into protective custody by ((the police or the
emergency service patrol)) a peace officer or staff designated by the
county and as soon as practicable, but in no event beyond eight hours
brought to an approved treatment facility for treatment. If no approved
treatment facility is readily available he or she shall be taken to an
emergency medical service customarily used for incapacitated persons. The ((police
or the emergency service patrol)) peace officer or staff designated by
the county, in detaining the person and in taking him or her to an approved
treatment facility, is taking him or her into protective custody and shall make
every reasonable effort to protect his or her health and safety. In taking the
person into protective custody, the detaining peace officer or ((member
of an emergency patrol)) staff designated by the county may take
reasonable steps including reasonable force if necessary to protect himself or
herself or effect the custody. A taking into protective custody under this
section is not an arrest. No entry or other record shall be made to indicate
that the person has been arrested or charged with a crime.
(3) A person who comes voluntarily or is brought to an approved treatment facility shall be examined by a qualified person. He or she may then be admitted as a patient or referred to another health facility, which provides emergency medical treatment, where it appears that such treatment may be necessary. The referring approved treatment facility shall arrange for his or her transportation.
(4) A
person who is found to be incapacitated or gravely disabled by alcohol or
other drugs at the time of his or her admission or to have become
incapacitated or gravely disabled at any time after his or her
admission, may not be detained at the facility for more than seventy-two hours
after admission as a patient, unless a petition is filed under RCW 70.96A.140,
as now or hereafter amended: PROVIDED, That the treatment personnel at ((the))
an approved treatment facility are authorized to use such reasonable
physical restraint as may be necessary to retain an incapacitated or gravely
disabled person ((incapacitated by alcohol at such facility)) for up
to seventy-two hours from the time of admission. The seventy-two hour periods
specified in this section shall be computed by excluding Saturdays, Sundays,
and holidays. A person may consent to remain in the facility as long as the
physician in charge believes appropriate.
(5) A person who is not admitted to an approved treatment facility, is not referred to another health facility, and has no funds, may be taken to his or her home, if any. If he or she has no home, the approved treatment facility shall assist him or her in obtaining shelter.
(6) If a patient is admitted to an approved treatment facility, his or her family or next of kin shall be notified as promptly as possible by the treatment facility. If an adult patient who is not incapacitated requests that there be no notification, his or her request shall be respected.
(7) The ((police,
members of the emergency service)) peace officer, staff designated by
the county, or treatment facility personnel, who ((in good faith))
act in compliance with this chapter and are performing in the course of
their official duty ((and)) are not criminally or civilly liable
therefor.
(8) If the person in charge of the approved treatment facility determines it is for the patient's benefit, the patient shall be encouraged to agree to further diagnosis and appropriate voluntary treatment.
Sec. 6. Section 14, chapter 122, Laws of 1972 ex. sess. as last amended by section 14, chapter 439, Laws of 1987 and RCW 70.96A.140 are each amended to read as follows:
(1) When
the person in charge of a treatment facility, or his or her designee, receives
information alleging that a person is incapacitated as a result of alcoholism,
the person in charge, or his or her designee, after investigation and
evaluation of the specific facts alleged and of the reliability and credibility
of the information, may file a petition for commitment of such person with the
superior court or district court. If the person in charge, or his or her
designee, finds that the initial needs of such person would be better served by
placement within the mental health system, the person shall be referred to an
evaluation and treatment facility as defined in RCW 71.05.020. If placement in
an alcohol treatment facility is deemed appropriate, the petition shall allege
that: The person is an alcoholic who is incapacitated by alcohol, or
that the person has twice before in the preceding twelve months been admitted
for ((the voluntary)) detoxification or treatment for alcoholism
pursuant to RCW 70.96A.110 and is in need of a more sustained treatment
program, or that the person is an alcoholic who has threatened, attempted, or
inflicted physical harm on another and is likely to inflict physical harm on
another unless committed. A refusal to undergo treatment, by itself,
does not constitute evidence of lack of judgment as to the need for treatment.
The petition shall be accompanied by a certificate of a licensed physician who
has examined the person within ((two)) five days before
submission of the petition, unless the person whose commitment is sought 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
physician employed by the petitioning facility or the department is ((not))
eligible to be the certifying physician.
(2) Upon
filing the petition, the court shall fix a date for a hearing no less than ((three))
two and no more than seven days after the date the petition was filed
unless the person petitioned against is presently being detained ((by the))
in a facility, pursuant to RCW 70.96A.120 or 71.05.210, as now or
hereafter amended, in which case the hearing shall be held within seventy-two
hours of the filing of the petition: PROVIDED, HOWEVER, That the above
specified seventy-two hours shall be computed by excluding Saturdays, Sundays,
and holidays: PROVIDED FURTHER, That, the court may, upon motion of the person
whose commitment is sought, or upon motion of petitioner with written
permission of the person whose commitment is sought, or his 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 treatment facility on the person whose commitment is sought,
his or her next of kin, a parent or his or her legal guardian if he or 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, which may be telephonic, of at least one licensed physician who has examined the person whose commitment is sought. Communications otherwise deemed privileged under the laws of this state are deemed to be waived in proceedings under this chapter when a court of competent jurisdiction in its discretion determines that the waiver is necessary to protect either the detained person or the public. The waiver of a privilege under this section is limited to records or testimony relevant to evaluation of the detained person for purposes of a proceeding under this chapter. Upon motion by the detained person, 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 detained persons so long as the requirements of RCW 5.45.020 are met, except that portions of the record that contain opinions as to whether the detained person is an alcoholic must be deleted from the records unless the person offering the opinions is available for cross-examination. The person shall be present unless the court believes that his or her presence is likely to be injurious to him or her; in this event the court may deem it appropriate to appoint a guardian ad litem to represent him or her throughout the proceeding. If deemed advisable, the court may examine the person out of courtroom. If the person has refused to be examined by a licensed physician, he or she shall be given an opportunity to be examined by a court appointed licensed physician. If he or 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 him or her to the department 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 grounds for involuntary commitment have been
established by clear, cogent, and convincing proof, it shall make an order of
commitment to an approved treatment facility. It shall not order commitment of
a person unless it determines that an approved treatment facility is able to
provide adequate and appropriate treatment for him or her ((and the
treatment is likely to be beneficial)).
(5) A
person committed under this section shall remain in the facility for treatment
for a period of ((thirty)) sixty days unless sooner discharged.
At the end of the ((thirty)) sixty-day period, he or she shall be
discharged automatically unless the facility, before expiration of the period,
files a petition for his or her recommitment upon the grounds set forth in subsection
(1) of this section for a further period of ninety days unless sooner
discharged. If a person has been committed because he or she is an alcoholic
likely to inflict physical harm on another, the facility shall apply for
recommitment if after examination it is determined that the likelihood still
exists.
(6) ((A
person recommitted under subsection (5) of this section who has not been
discharged by the facility before the end of the ninety day period shall be
discharged at the expiration of that period unless the facility, before
expiration of the period, obtains a court order on the grounds set forth in
subsection (1) of this section for recommitment for a further period not to
exceed ninety days. If a person has been committed because he or she is an
alcoholic likely to inflict physical harm on another, the facility shall apply
for recommitment if after examination it is determined that the likelihood
still exists. Only two recommitment orders under subsections (5) and (6) of
this section are permitted.
(7))) Upon the filing of a petition for recommitment under
subsection((s)) (5) ((or (6))) of this section, the court shall
fix a date for hearing no less than ((three)) two and no more
than seven days after the date the petition was filed: PROVIDED, That, the
court may, upon motion of the person whose commitment is sought and upon good
cause shown, extend the date for the hearing. A copy of the petition and of
the notice of hearing, including the date fixed by the court, shall be served
by the treatment facility on the person whose commitment is sought, his or her
next of kin, the original petitioner under subsection (1) of this section if
different from the petitioner for recommitment, one of his or her parents or
his or her legal guardian if he or she is a minor, and his or her attorney and
any other person the court believes advisable. At the hearing the court shall
proceed as provided in subsection (3) of this section.
(((8)))
(7) The approved treatment facility shall provide for adequate and
appropriate treatment of a person committed to its custody. A person committed
under this section may be transferred from one approved public treatment
facility to another if transfer is medically advisable.
(((9)))
(8) A person committed to the custody of a facility for treatment shall
be discharged at any time before the end of the period for which he or she has
been committed and he or she shall be discharged by order of the court if
either of the following conditions are met:
(a) In case
of an alcoholic committed on the grounds of likelihood of infliction of
physical harm upon himself, herself, or another, ((that he or she is
no longer an alcoholic or)) the likelihood no longer exists; or further
treatment will not be likely to bring about significant improvement in the
person's condition, or treatment is no longer adequate or appropriate.
(b) In case of an alcoholic committed on the grounds of the need of treatment and incapacity, that the incapacity no longer exists.
(((10)))
(9) The court shall inform the person whose commitment or recommitment
is sought of his or her right to contest the application, be represented by
counsel at every stage of any proceedings relating to his or her commitment and
recommitment, and have counsel appointed by the court or provided by the court,
if he or she wants the assistance of counsel and is unable to obtain counsel.
If the court believes that the person needs the assistance of counsel, the
court shall require, by appointment if necessary, counsel for him or her
regardless of his or her wishes. The person shall, if he or she is financially
able, bear the costs of such legal service; otherwise such legal service shall
be at public expense. The person whose commitment or recommitment is sought
shall be informed of his or her right to be examined by a licensed physician of
his or her choice. If the person is unable to obtain a licensed physician and
requests examination by a physician, the court shall employ a licensed
physician.
(((11)))
(10) A person committed under this chapter may at any time seek to be
discharged from commitment by writ of habeas corpus in a court of competent
jurisdiction.
(((12)))
(11) The venue for proceedings under this section is the county in which
person to be committed resides or is present.
(12) When in the opinion of the professional person in charge of the facility providing involuntary treatment under this chapter, the committed patient can be appropriately served by less restrictive treatment before expiration of the period of commitment, then the less restrictive care may be required as a condition for early release for a period which, when added to the initial treatment period, does not exceed the period of commitment. If the facility designated to provide the less restrictive treatment is other than the facility providing the initial involuntary treatment, the facility so designated must agree in writing to assume such responsibility. A copy of the conditions for early release shall be given to the patient, the designated county alcoholism specialist, and the court of original commitment. The facility designated to provide less restrictive care may modify the conditions for continued release when the modifications are in the best interests of the patient. If the facility providing less restrictive care and the designated county alcoholism specialist determine that a conditionally released patient is failing to adhere to the terms and conditions of his or her release, or that substantial deterioration in the patient's functioning has occurred, then the designated county alcoholism specialist shall notify the court of original commitment and request a hearing to be held no less than two and no more than seven days after the date of the request to determine whether or not the person should be returned to more restrictive care. The designated alcoholism specialist shall file a petition with the court stating the facts substantiating the need for the hearing along with the treatment recommendations. The patient shall have the same rights with respect to notice, hearing, and counsel as for the original involuntary treatment proceedings. The issues to be determined at the hearing are whether the conditionally released patient did or did not adhere to the terms and conditions of his or her release to less restrictive care or that substantial deterioration of the patient's functioning has occurred and whether the conditions of release should be modified or the person should be returned to a more restrictive facility. The hearing may be waived by the patient and his or her counsel and his or her guardian or conservator, if any, but may not be waived unless all such persons agree to the waiver. Upon waiver, the person may be returned for involuntary treatment or continued on conditional release on the same or modified conditions.
NEW SECTION. Sec. 7. A new section is added to chapter 70.96A RCW to read as follows:
In any judicial proceeding for involuntary commitment or detention, or in any proceeding challenging such commitment or detention, the prosecuting attorney for the county in which the proceeding was initiated shall represent the individuals or agencies petitioning for commitment or detention and shall defend all challenges to such commitment or detention.