SECTION 1. In June 2012, a special action team was commissioned by the governor to analyze causes and identify ideas to address the systemic factors that contribute to the increased rate of admissions and factors that increase the length of stay at the Hawaii state hospital. Further, the team was tasked with considering possible solutions and making recommendations to the governor in time to be considered by the governor and the legislature during the 2013 legislative session and fiscal year 2014-2015 budget cycles. The team comprised representatives from the office of the governor, department of health's adult mental health division, department of public safety, department of human services, department of the attorney general, department of human resources development, department of budget and finance, offices of the prosecutors of each county, office of the public defender, and chiefs of police from each county. They joined together to examine data and to develop a plan to revitalize adult mental health services in the community and more effectively address the rate of increase in the census of the Hawaii state hospital.

There was consensus agreement among the members of the special action team that statutory changes should be proposed to the legislature. The proposed changes are intended to improve services and efficiency of operations, but not compromise public safety, nor impinge on defendants’ rights.

Analysis of the Hawaii state hospital admission legal status statistics revealed that the second most common forensic commitment status to the care and custody of the director of health and subsequent admission to Hawaii state hospital is related to conditional release status. Conditional release means that the person has been acquitted of the crime on the ground of mental disease or disorder excluding responsibility but that the person can be controlled adequately and given proper care, supervision, and treatment in the community under specified conditions. However, if the supervising probation officer has probable cause to believe the person is in violation of those conditions, the probation officer may order the person on conditional release to be hospitalized. Over 80 per cent of the individuals admitted to the hospital do not require inpatient hospital level of care, based on utilization management illness severity indexes. Further discussion revealed that under current Hawaii law, there is effectively no time limit on how long a person may remain on conditional release, pursuant to a charge of misdemeanor or less. However, if the same person, as a defendant in a court case, either pled or was found guilty of the charge, that person would receive a sentence or a period of probation that would be limited to one year or less.

The special action team analysis also revealed that, in addition to the issue of high numbers of admissions to the Hawaii state hospital for completion of court ordered examinations to evaluate a defendant's fitness to proceed under section 704-404 or 704-406, Hawaii Revised Statutes, such examinations are frequently delayed or incomplete because required information from other public agencies is not provided in a timely way to the examiners who are ordered to perform these evaluations and report to the court.

The special action team reached a consensus that changes to chapter 704, Hawaii Revised Statutes, were to be proposed to address these issues, without adverse impact on defendants’ rights, the provision of effective mental health services, or public safety. Accordingly, the purpose of this Act is to address the areas identified by the special action team as in need of legislative remedy, by modifying the relevant statutes to include the consensus recommendations made by the group. It is intended to improve the State's public sector forensic mental health services and thereby assist in reducing the census at the Hawaii state hospital.

SECTION 2. Section 704-404, Hawaii Revised Statutes, is amended to read as follows:

"§704-404 Examination of defendant with respect to physical or mental disease, disorder, or defect. (1) Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, or there is reason to doubt the defendant's fitness to proceed, or reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may immediately suspend all further proceedings in the prosecution. If a trial jury has been empanelled, it shall be discharged or retained at the discretion of the court. The discharge of the trial jury shall not be a bar to further prosecution.

(2) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant. In felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases the court may appoint either a psychiatrist or a licensed psychologist. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted on an out-patient basis or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or such longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).

(3) An examination performed under this section may employ any method that is accepted by the professions of medicine or psychology for the examination of those alleged to be affected by a physical or mental disease, disorder, or defect; provided that each examiner shall form and render diagnoses and opinions upon the physical and mental condition of the defendant independently from the other examiners, and the examiners, upon approval of the court, may secure the services of clinical psychologists and other medical or paramedical specialists to assist in the examination and diagnosis.

(4) The report of the examination shall include the following:

(a) A description of the nature of the examination;

(b) A diagnosis of the physical or mental condition of the defendant;

(c) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;

(d) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired at the time of the conduct alleged;

(e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind that is required to establish an element of the offense charged; and

(f) Where more than one examiner is appointed, a statement that the diagnosis and opinion rendered were arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction.

(5) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.

(6) Three copies of the report of the examination, including any supporting documents, shall be filed with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

(7) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's diagnosis or opinion.

(8) The court shall obtain all existing medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies, notwithstanding any other statutes, and make such records available for inspection by the examiners. If, pursuant to this section, the court orders the defendant committed to a hospital or other suitable facility under the control of the director of health, then the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant which have been adjudicated by the acceptance of a plea of guilty or no contest, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of plea of guilty or no contest made pursuant to chapter 853, so long as the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments, with the exception of expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with its investigation, or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law.

(9) All public agencies in possession of medical, mental health, social, police, and juvenile records, including those expunged and any other pertinent records of a defendant ordered to be examined under this chapter, shall provide those records to the court, notwithstanding any other state statute.

[~~(9)~~] (10) The compensation of persons making or assisting in the examination, other than those retained by the nonindigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the State."

SECTION 3. Section 704-411, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (1) to read:

"(1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall order that:

(a) The defendant shall be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:

(i) Is affected by a physical or mental disease, disorder, or defect;

(ii) Presents a risk of danger to self or others; and

(iii) Is not a proper subject for conditional release; provided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others. The county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704‑400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853, so long as the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law;

(b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition. For any defendant granted conditional release pursuant to this [~~paragraph,~~] section, and who was charged with a petty misdemeanor, misdemeanor, or violation, the period of conditional release shall be no longer than one year; or

(c) The defendant shall be discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment."

2. By amending subsection (3) to read:

"(3) When ordering a hearing pursuant to subsection (2):

(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and

(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, a licensed psychologist, or a qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.

To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or such longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section 704-404(3), (4)(a) and (b), (6), (7), (8), and [~~(9).~~] (10). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3)."

SECTION 4. Section 704-412, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) Upon application to the court by either the director of health or the person committed, the court shall complete the hearing process and render a decision within sixty days of the application; provided that for good cause the court may extend the sixty-day time frame upon the request of the director of health or the person committed. For any defendant granted conditional release pursuant to this section, and who was charged with a petty misdemeanor, misdemeanor, or violation, the period of conditional release shall be no longer than one year."

SECTION 5. Section 704-413, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (1) to read:

"(1) Any person granted conditional release pursuant to this chapter shall continue to receive mental health or other treatment and care deemed appropriate by the director of health until discharged from conditional release. The person shall follow all prescribed treatments and take all prescribed medications according to the instructions of the person's treating mental health professional. If a mental health professional who is treating a person granted conditional release believes that either the person is not complying with the requirements of this section or there is other evidence that hospitalization is appropriate, the mental health professional shall report the matter to the probation officer of the person granted conditional release. The probation officer may order the person granted conditional release to be hospitalized for a period not to exceed seventy-two hours if the probation officer has probable cause to believe the person has violated the requirements of this subsection. No person shall be hospitalized beyond the seventy-two-hour period, as computed pursuant to section 1-29, unless a hearing has been held pursuant to subsection (4); provided that on or before the expiration of the seventy-two-hour period, a court may conduct a hearing to determine whether the person would benefit from further hospitalization, which may render a revocation of conditional release unnecessary. If satisfied, the court may order further temporary hospitalization for a period not to exceed ninety days, subject to extension as appropriate, but in no event for a period longer than one year. For any person ordered to be hospitalized pursuant to this section, who was placed on a one-year limited conditional release pursuant to section 704-411(1)(b), the one year shall be tolled pending the person's time of hospitalization. At any time within that period, the court may determine that a hearing pursuant to subsection (4) should be conducted."

2. By amending subsection (4) to read:

"(4) If, at any time after the order pursuant to this chapter granting conditional release, the court determines, after hearing evidence, that:

(a) The person is still affected by a physical or mental disease, disorder, or defect, and the conditions of release have not been fulfilled; or

(b) For the safety of the person or others, the person's conditional release should be revoked,

the court may forthwith modify the conditions of release or order the person to be committed to the custody of the director of health, subject to discharge or release in accordance with the procedure prescribed in section 704-412. If the person's conditional release is revoked, the period of conditional release is terminated. If the person who was charged with a petty misdemeanor, misdemeanor, or violation is placed on conditional release subsequently, the period of conditional release shall be no longer than one year."

SECTION 6. Section 704-415, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Any such hearing shall be deemed a civil proceeding and the burden shall be upon the applicant to prove that the person is no longer affected by a physical or mental disease, disorder, or defect or may safely be either released on the conditions applied for or discharged. According to the determination of the court upon the hearing the person shall be:

(a) Discharged;

(b) Released on such conditions as the court determines to be necessary; provided that for any defendant granted conditional release pursuant to this section, and who was charged with a petty misdemeanor, misdemeanor, or violation, the period of conditional release shall be no longer than one year; or

(c) Recommitted to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704-412."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	1141
TWENTY-SEVENTH LEGISLATURE, 2013		S.D. 1
STATE OF HAWAII