PRINTER'S NO. 440
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
391
Session of
2017
INTRODUCED BY COSTA, FONTANA, RAFFERTY, YUDICHAK, BOSCOLA,
MENSCH, BREWSTER AND VULAKOVICH, FEBRUARY 28, 2017
REFERRED TO JUDICIARY, FEBRUARY 28, 2017
AN ACT
Amending the act of July 9, 1976 (P.L.817, No.143), entitled "An
act relating to mental health procedures; providing for the
treatment and rights of mentally disabled persons, for
voluntary and involuntary examination and treatment and for
determinations affecting those charged with crime or under
sentence," in general provisions, further providing for
statement of policy and for mental health review officer; and
adding provisions relating to involuntary examination and
treatment of alcohol and other drug abuse.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 102 and 109 of the act of July 9, 1976
(P.L.817, No.143), known as the Mental Health Procedures Act,
are amended to read:
Section 102. Statement of Policy.--It is the policy of the
Commonwealth of Pennsylvania to seek to assure the availability
of adequate treatment to persons who are mentally ill, and it is
the purpose of this act to establish procedures whereby this
policy can be effected. The provisions of this act shall be
interpreted in conformity with the principles of due process to
make voluntary and involuntary treatment available where the
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need is great and its absence could result in serious harm to
the mentally ill person or to others. Treatment on a voluntary
basis shall be preferred to involuntary treatment; and in every
case, the least restrictions consistent with adequate treatment
shall be employed. Persons who are mentally retarded, senile,
alcoholic, or drug dependent shall receive mental health
treatment only if they are also diagnosed as mentally ill, but
these conditions of themselves shall not be deemed to constitute
mental illness: Provided, however, That nothing in this act
shall prohibit underutilized State facilities for the mentally
ill to be made available for the treatment of alcohol abuse or
drug addiction pursuant to the act of April 14, 1972 (P.L.221,
No.63), known as the "Pennsylvania Drug and Alcohol Abuse
Control Act." However, if such persons suffer from alcohol and
other drug abuse, they shall be subject to the provisions of
Article III-A. Chronically disabled persons 70 years of age or
older who have been continuously hospitalized in a State
operated facility for at least ten years shall not be subject to
the procedures of this act. Such a person's inability to give a
rational, informed consent shall not prohibit the department
from continuing to provide all necessary treatment to such a
person. However, if such a person protests treatment or
residence at a State operated facility he shall be subject to
the provisions of Article III.
Section 109. Mental Health Review Officer.--(a) Legal
proceedings concerning extended involuntary emergency treatment
under section 303(c), court-ordered involuntary treatment under
section 304 or 305 or transfer hearings under section 306[,] or
court-ordered involuntary treatment under Article III-A may be
conducted by a judge of the court of common pleas or by a mental
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health review officer authorized by the court to conduct the
proceedings.
(b) In all cases in which the hearing is conducted by a
mental health review officer, a person made subject to treatment
shall have the right to petition the court of common pleas for
review of the certification or order. A hearing shall be held
within 72 hours after the petition is filed unless a continuance
is requested by the person's counsel. The hearing shall include
a review of the certification or order and such evidence as the
court may receive or require. If the court determines that
further involuntary treatment is necessary and that the
procedures prescribed by this act have been followed, it shall
deny the petition. Otherwise, the person shall be discharged.
(c) [Notwithstanding any other provision of this act] Except
as provided under Article III-A, no judge or mental health
review officer shall specify to the treatment team the adoption
of any treatment technique, modality, or drug therapy.
(d) Notwithstanding any statute to the contrary, judges of
the courts of common pleas, mental health review officers and
county mental health and mental retardation administrators shall
notify the Pennsylvania State Police on a form developed by the
Pennsylvania State Police of the identity of any individual who
has been adjudicated incompetent or who has been involuntarily
committed to a mental institution for inpatient care and
treatment under this act or who has been involuntarily treated
as described under 18 [Pa.C.S] Pa.C.S. § 6105(c)(4) (relating to
persons not to possess, use, manufacture, control, sell or
transfer firearms). The notification shall be transmitted by the
judge, mental health review officer or county mental health and
mental retardation administrator within seven days of the
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adjudication, commitment or treatment. Notwithstanding any
statute to the contrary, county mental health and mental
retardation administrators shall notify the Pennsylvania State
Police on a form developed by the Pennsylvania State Police of
the identity of any individual who before the effective date of
this act had been adjudicated incompetent or had been
involuntarily committed to a mental institution for inpatient
care treatment under this act or had been involuntarily treated
as described in 18 Pa.C.S. § 6105(c)(4).
Section 2. The act is amended by adding an article to read:
ARTICLE III-A
INVOLUNTARY EXAMINATION AND TREATMENT
OF ALCOHOL AND OTHER DRUG ABUSE
Section 301-A. Definitions.
The following words and phrases when used in this article
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Alcohol and other drug abuse." Alcoholism or drug
addiction.
"Another drug." A controlled substance as defined in section
2 of the act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act.
"Danger" or "threat of danger to self, family or others."
Substantial physical harm or threat of substantial physical harm
upon self, family or others.
"Hospital." A facility licensed as a hospital under 28 Pa.
Code Pt. IV Subpt. B (relating to general and special
hospitals). The term does not include either a hospital operated
by the Department of Health and Department of Drug and Alcohol
Programs or an inpatient unit licensed by the Department of
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Health and Department of Drug and Alcohol Programs.
"Intoxicated." Being under the influence of alcohol, another
drug or both alcohol and another drug and, as a result, having a
significantly impaired ability to function.
"Petition." A petition filed under this article.
"Petitioner." An individual who institutes a proceeding
under this article.
"Qualified health professional." An individual who is
properly credentialed or licensed to conduct a drug and alcohol
assessment and diagnosis under the laws of this Commonwealth.
"Residence." The legal residence of an individual as
determined by applicable principles governing conflicts of law.
"Respondent." An individual who is alleged in a petition
filed or hearing under this article to be suffering from alcohol
and other drug abuse and who may be ordered to undergo
treatment.
"Treatment." Services and programs for the care and
rehabilitation of intoxicated individuals and individuals
suffering from alcohol and other drug abuse. The term includes
residential treatment, a halfway house setting and an intensive
outpatient or outpatient level of care.
Section 302-A. Authorization.
A court of common pleas may order involuntary treatment for
an individual suffering from alcohol and other drug abuse
pursuant to the procedures stated in this article.
Section 303-A. Persons who may be subject to involuntary
examination and treatment of alcohol and other drug
abuse.
No individual may be ordered to undergo treatment under this
article unless all of the following apply:
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(1) The individual suffers from alcohol and other drug
abuse.
(2) The individual presents an imminent danger or
imminent threat of danger to self, family or others as a
result of alcohol and other drug abuse or there exists a
substantial likelihood of such a threat in the near future.
(3) The individual can reasonably benefit from
treatment.
Section 304-A. Initiation of proceedings and petition.
(a) General rule.--An individual may initiate proceedings
for treatment for an individual suffering from alcohol and other
drug abuse by filing a petition with the county administrator
for an examination. A spouse, relative or guardian of the
respondent must file the petition.
(b) Contents of petition.--The petition shall state the
following:
(1) The petitioner's relationship to the respondent.
(2) The respondent's name, residence and current
location, if known.
(3) The name and residence of the respondent's parents,
living and known, or of the respondent's legal guardian, if
any and known.
(4) The name and residence of the respondent's spouse,
if any and if known.
(5) The name and residence of the individual having
custody of the respondent, if any, or, if no such individual
is known, the name and residence of a near relative or a
statement that the individual is unknown.
(6) The petitioner's belief, including the factual basis
for the belief, that the respondent is suffering from alcohol
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and other drug abuse and presents an imminent danger or
imminent threat of danger to self, family or others, or that
there exists a substantial likelihood of such a threat in the
near future, if the respondent is not treated for alcohol or
other drug abuse.
(c) Certificate and statement.--The following shall apply:
(1) A petition shall be accompanied by a certificate of
a physician who has examined the respondent within two days
prior to the day that the petition is filed with the county
administrator. The physician must be authorized to practice
medicine and surgery or osteopathic medicine and surgery
under the act of December 20, 1985 (P.L.457, No.112), known
as the Medical Practice Act of 1985, or the act of October 5,
1978 (P.L.1109, No.261), known as the Osteopathic Medical
Practice Act. The physician's certificate shall state:
(i) The physician's findings in support of the need
to treat the respondent for alcohol and other drug abuse.
(ii) If the respondent presents an imminent danger
or imminent threat of danger to self, family or others if
not treated.
(iii) The type and length of treatment required and
if the respondent can reasonably benefit from treatment.
(iv) If the physician's certificate indicates that
inpatient treatment is required.
(v) Any inpatient facilities known to the physician
that are able and willing to provide the recommended
inpatient treatment.
(2) If the respondent refuses to undergo an examination
with a physician concerning the respondent's possible need
for treatment for alcohol or other drug abuse, the petition
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shall state that the respondent has refused all requests made
by the petitioner to undergo a physician's examination. In
that case, the petitioner shall not be required to provide a
physician's certificate with the petition.
(3) The petition shall contain:
(i) A statement that the petitioner has arranged for
treatment of the respondent.
(ii) A statement from the individual or facility
that has agreed to provide the treatment that verifies
that the individual or facility has agreed to provide the
treatment and the estimated cost of the treatment.
(d) Deposit and guarantee.--A petition shall be accompanied
by both of the following:
(1) A security deposit to be deposited with the clerk of
the court of common pleas of which the respondent is a
resident that will cover half of the estimated cost of
treatment of the respondent.
(2) A guarantee, signed by the petitioner or another
individual authorized to file the petition obligating the
guarantor to pay the costs of:
(i) The examinations of the respondent conducted by
the physician and qualified health professional under
subsection (c).
(ii) The respondent that is associated with a
hearing conducted in accordance with section 305-A and
that the judge or mental health review officer determines
to be appropriate.
(iii) Treatment ordered by the judge or mental
health review officer.
Section 305-A. Warrant and notifications.
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(a) General rule.--Upon petition by an individual under
section 304-A(a) stating facts constituting probable cause to
believe a person is suffering from alcohol and other drug abuse
and may reasonably benefit from treatment, the county
administrator may issue a warrant requiring a person authorized
by the county administrator, or a peace officer, to take the
person to the facility specified in the warrant no earlier than
two hours prior to a hearing conducted pursuant to section 305-
A, provided the respondent does not agree to appear voluntarily.
(b) Notifications and examination.--Upon issuance of a
warrant, the county court of common pleas or mental health
review officer authorized to conduct a hearing under section
306-A shall:
(1) Schedule the hearing within seven days after the
warrant is issued.
(2) Notify the respondent, the legal guardian, if any
and known, and the spouse, parents or nearest relative or
friend of the respondent concerning the allegations and
contents of the petition and of the date and purpose of the
hearing.
(3) Notify the respondent that the respondent may retain
counsel and that, if the respondent is unable to obtain an
attorney, the respondent may be represented by court-
appointed counsel at public expense if the respondent is
indigent. Upon the appointment of an attorney to represent an
indigent respondent, the court or mental health review
officer shall notify the respondent of the name, address and
telephone number of the attorney appointed to represent the
respondent.
(4) Notify the respondent that the court or mental
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health review officer shall cause the respondent to be
examined not later than 24 hours before the hearing date by a
physician for the purpose of a physical examination and by a
qualified health professional for the purpose of a drug and
alcohol addiction assessment and diagnosis. The court or
mental health review officer shall notify the respondent that
the respondent may have an independent expert evaluation of
the individual's physical and mental condition conducted at
the respondent's own expense.
(5) Cause the respondent to be examined not later than
24 hours before the hearing date by a physician for the
purpose of a physical examination and by a qualified health
professional for the purpose of a drug and alcohol addiction
assessment and diagnosis.
(c) Findings.--The physician and qualified health
professional who examine the respondent pursuant to subsection
(b) or who are obtained by the respondent at the respondent's
own expense shall certify the findings of the examination to the
judge or mental health review officer within 24 hours of the
examinations. The findings of each qualified health professional
shall include a recommendation for treatment, if the qualified
health professional determines that treatment is necessary.
Section 306-A. Hearing and disposition.
(a) Persons who may conduct the hearing.--Within seven days
after the warrant is issued, a hearing shall be conducted by a
judge of the court of common pleas or a mental health review
officer and, if practicable, shall be held at the facility
specified in the warrant.
(b) Appointment of counsel and scheduling of hearing.--Upon
receiving the respondent for purposes of a hearing, the judge or
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mental health review officer shall appoint an attorney to
represent the respondent unless it appears that the respondent
can afford and desires to be privately represented.
(c) Hearing on petition.--
(1) (i) At the commencement of the hearing, the judge
or the mental health review officer shall inform the
respondent of the nature of the proceedings. Information
relevant to whether the respondent is suffering from
alcohol and other drug abuse and in need of treatment
shall be reviewed, including the reasons that involuntary
treatment is considered necessary. The information shall
be provided by a physician who examined the respondent
and shall be presented in terms understandable to a
layperson.
(ii) The judge or mental health review officer may
review any relevant information even if it would be
normally excluded under rules of evidence if the judge or
mental health review officer believes that the
information is reliable.
(iii) The respondent or the respondent's
representative shall have the right to ask questions of
the physician and of any other witnesses and to present
any relevant information.
(2) A record of the proceedings, which need not be a
stenographic record, shall be made. The record shall be kept
by the court or mental health review officer for at least one
year.
(3) (i) Upon a finding by clear and convincing evidence
that the respondent is suffering from alcohol and drug
abuse and may reasonably benefit from treatment, an order
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shall be entered directing treatment of the respondent in
an approved facility as an inpatient or an outpatient, or
a combination of such treatment, for a duration as
determined by the judge or mental health review officer
after considering the recommendations of the qualified
health professionals submitted under subsection 305-A(c).
(ii) Inpatient treatment shall be deemed appropriate
only after full consideration has been given to less
restrictive alternatives.
(iii) Investigation of treatment alternatives shall
include consideration of the respondent's relationship to
the respondent's community and family, the respondent's
employment possibilities, all available community
resources, and guardianship services. An order for
inpatient treatment shall include findings on those
considerations.
(4) If the judge or mental health review officer directs
the treatment, the judge or mental health review officer
shall direct the treatment to be provided by a certified
addiction counselor, an individual licensed or certified
under the act of December 20, 1985 (P.L.457, No.112), known
as the Medical Practice Act of 1985, or an individual
licensed or certified under the act of July 9, 1987 (P.L.220,
No.39), known as the Social Workers, Marriage and Family
Therapists and Professional Counselors Act, or a similar
board of another state authorized to provide alcohol and
other drug abuse treatment.
(5) (i) Failure of a respondent to undergo and complete
treatment required by the order is contempt of court.
(ii) An alcohol and drug addiction program or
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individual providing treatment under this article shall
notify the court or mental health review officer of a
respondent's failure to undergo or complete treatment.
(6) If, at any time after a petition is filed, the judge
or mental health review officer finds no probable cause to
continue treatment or if the petitioner withdraws the
petition, then the court or mental health review officer
shall dismiss the proceedings against the respondent.
(d) Contents of order.--An order for involuntary treatment
shall be made in writing on a form adopted by the Department of
Health and shall include:
(1) Findings by the judge or mental health review
officer as to the reasons that involuntary treatment is
necessary.
(2) A description of the treatment to be provided
together with an explanation of the adequacy and
appropriateness of the treatment, based upon the information
received at the hearing.
(3) The petition and any documents required by the
provisions of this article.
(4) A statement that the respondent is represented by
counsel.
(5) An explanation of the effect of the certification,
the respondent's right to petition the court for release
under subsection (g) and the continuing right to be
represented by counsel.
(e) Filing and service.--The order shall be filed with the
director of the facility providing the treatment and a copy
served on the respondent, such other parties as the respondent
may request to be notified and on the counsel representing the
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respondent.
(f) Petition to court of common pleas.--
(1) In a case in which the hearing is conducted by a
mental health review officer, the respondent made subject to
treatment pursuant to this section shall have the right to
petition the court of common pleas for review of the order.
(2) A hearing shall be held within 72 hours after the
order is entered unless a continuance is requested by the
respondent's counsel.
(3) The hearing shall include a review of the order and
such evidence as the court may receive or require.
(4) If the court determines that further involuntary
treatment is necessary and the procedures prescribed by this
article have been followed, the court shall deny the petition
of the respondent. Otherwise, the respondent shall be
discharged.
(g) Discharge during duration of treatment.--If a respondent
is no longer suffering from alcohol and other drug abuse or in
need of immediate treatment as determined by the director of the
facility providing the treatment, the respondent shall be
discharged.
Section 307-A. Emergency involuntary treatment.
(a) Authority of court.--
(1) Following an examination by a qualified health
professional and a certification by that professional that a
respondent meets the criteria specified in section 303-A, a
court of common pleas or mental health review officer may
order the respondent hospitalized for a period not to exceed
72 hours if the judge or mental health review officer finds
by clear and convincing evidence that the respondent presents
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an imminent threat of danger to self, family or others as a
result of alcohol and other drug abuse.
(2) If the hearing under section 306-A cannot be held
within 72 hours, the court may order the respondent
hospitalized until the hearing.
(3) In making its order, the court shall inform the
respondent that the respondent may immediately make a
reasonable number of telephone calls or use other reasonable
means to contact an attorney, a licensed physician or a
qualified health professional, to contact a person to secure
representation by counsel or to obtain medical or
psychological assistance and that the respondent will be
provided assistance in making telephone calls if the
assistance is needed and requested.
(b) Release.--A respondent who has been admitted to a
hospital under subsection (a) shall be released from the
hospital immediately upon expiration of the time period
established by the judge or mental health review officer for the
hospitalization.
(c) Prohibition.--No respondent ordered hospitalized under
this section shall be held in jail pending transportation to the
hospital or evaluation unless the court of common pleas or
mental health review officer previously has found the respondent
to be in contempt of court for either failure to undergo
treatment or failure to appear at the evaluation ordered under
section 305-A.
Section 308-A. Summons.
(a) General rule.--When a court of common pleas or mental
health review officer is authorized to issue an order that the
respondent be transported to a hospital, the judge or mental
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health review officer may issue a summons. If the respondent
fails to attend an examination scheduled before the hearing
under section 305-A, the judge or mental health review officer
shall issue a summons. A summons so issued shall be directed to
the respondent and shall command the respondent to appear at a
time and place specified in the summons.
(b) Transportation of respondent.--
(1) If a respondent who has been summoned fails to
appear at the hospital or the examination, the court or
mental health review officer may order the sheriff or any
other peace officer to transport the respondent to a hospital
on the list provided under section 309-A for treatment.
(2) The transportation costs of the sheriff or other
peace officer shall be included in the costs of treatment for
alcohol and other drug abuse to be paid by the petitioner.
Section 309-A. Lists of qualified hospitals and treatment
providers.
The Department of Health and the Department of Drug and
Alcohol Programs on at least an annual basis shall submit each
of the following lists to the clerk of the court of common pleas
in each county:
(1) A list of all hospitals in the county that are able
and willing to take respondents ordered to undergo 72 hours
of treatment and observation pursuant to section 307-A.
(2) A list of hospitals and treatment providers in the
county that are able and willing to provide treatment for
alcohol and other drug abuse ordered pursuant to section 307-
A.
Section 310-A. Civil rights and liberties of respondents.
An individual treated under this article shall retain the
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individual's civil rights and liberties, including:
(1) The right not to be experimented upon with treatment
not accepted as good medical practice without the
individual's fully informed consent.
(2) The right as an individual receiving services to
maintain the confidentiality of health and medical records.
(3) The right as an individual detained for medical
purposes to receive adequate and appropriate treatment.
(4) The right to vote.
Section 311-A. Confidentiality of records pertaining to
identity, diagnosis or treatment.
(a) General rule.--Records or information, other than court
journal entries or court docket entries, pertaining to the
identity, diagnosis or treatment of an individual receiving
treatment under this article shall be kept confidential, may be
disclosed only for the purposes and under the circumstances
expressly authorized under this section and may not otherwise be
divulged in any civil, criminal, administrative or legislative
proceeding.
(b) Consent.--If an individual with respect to whom a record
or information referred to in subsection (a) is maintained gives
consent in the form of a written release signed by the
individual, the content of the record or information may be
disclosed if the written release:
(1) Specifically identifies the individual, official or
entity to whom the information is to be provided.
(2) Describes with reasonable specificity the record,
records or information to be disclosed.
(3) Describes with reasonable specificity the purposes
of the disclosure and the intended use of the disclosed
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information.
(c) Exceptions.--
(1) Disclosure of the records or information referred to
under subsection (a) may be made without the individual's
consent to qualified personnel for the purpose of conducting
scientific research, management, financial audits or program
evaluation, but these personnel may not identify, directly or
indirectly, the individual in a report of the research, audit
or evaluation or otherwise disclose the individual's identity
in any manner.
(2) Upon the request of a prosecuting attorney or the
director of mental health and addiction services, a court of
competent jurisdiction may order the disclosure of records or
information referred to under subsection (a) if the court has
reason to believe that a treatment program or facility is
being operated or used in a manner contrary to law.
(3) The use of any information or record disclosed under
paragraph (2) shall be limited to the prosecution of persons
who are or may be charged with an offense related to the
illegal operation or use of the drug treatment program or
facility or to the decision to withdraw the authority of a
drug treatment program or facility to continue operation. In
such case, the court shall:
(i) Limit disclosure to those parts of the
individual's record considered essential to fulfill the
objective for which the order was granted.
(ii) Require, where appropriate, that all
information be disclosed in chambers.
(iii) Include any other appropriate measures to keep
disclosure to a minimum, consistent with the protection
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of the individual receiving services, the physician-
patient relationship and the administration of the drug
treatment and rehabilitation program.
Section 3. This act shall take effect in 60 days.
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