Senate Bill No. 23

Introduced By keating

By Request of the Department of Public Health and Human Services

A Bill for an Act entitled: "An Act amending provisions for involuntary commitment of persons with a chemical dependency; authorizing a county attorney to petition for commitment of a person with a chemical dependency; expanding the provisions for involuntary commitment to those who have a chemical dependency and those who may self-inflict physical harm; requiring certification from a certified chemical dependency counselor regarding the appropriate level of care; allowing examination of a person with a chemical dependency by a certified chemical dependency counselor; clarifying responsibility for costs before commitment; and amending sections 53-24-103, 53-24-207, and 53-24-302, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 53-24-102, MCA, is amended to read:

"53-24-102.   Declaration of policy. It is the policy of the state of Montana to recognize alcoholism as an illness and that alcoholics persons with a chemical dependency and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but, rather, should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society."

Section 2.  Section 53-24-103, MCA, is amended to read:

"53-24-103.   Definitions. For purposes of this chapter, the following definitions apply:

(1)  "Alcoholic" means a person who has a chronic illness or disorder of behavior characterized by repeated drinking of alcoholic beverages to the extent that it endangers the health, interpersonal relationships, or economic function of the individual or public health, welfare, or safety.

(2)  "Approved private treatment facility" means a private agency that has as its function the treatment, rehabilitation, and prevention of chemical dependency,; that meets the standards prescribed in 53-24-208(1),; and that is approved under 53-24-208.

(3)(2)  "Approved public treatment facility" means:

(a)  a treatment agency operating under the direction and control of the department as a state agency and approved under 53-24-208; or

(b)  a treatment agency operating under the direction and control of a local government and approved under 53-24-208.

(4)(3)  "Chemical dependency" means the use of any chemical substance, legal or illegal, that creates behavioral or health problems, or both, resulting in operational impairment. This term includes alcoholism, drug dependency, or both, that endanger the health, interpersonal relationships, or economic functions of an individual or the public health, welfare, or safety.

(5)(4)  "Department" means the department of public health and human services provided for in 2-15-2201.

(6)(5) "Family member" is the spouse, mother, father, child, or member of the household of a chemically dependent person with a chemical dependency whose life has been affected by the actions of the chemically dependent person with a chemical dependency and who may require treatment.

(7)(6)  "Incapacitated by alcohol" means that a person, as a result of the use of alcohol, is unconscious or has judgment otherwise so impaired that the person is incapable of realizing and making a rational decision with respect to a need for treatment.

(8)(7)  "Incompetent person" means a person who has been adjudged incompetent by the district court.

(9)(8) "Intoxicated person" means a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol.

(10)(9)  "Prevention" has meaning on four levels; these. These are:

(a)  education to provide information to the school children and the general public relating to chemical dependency treatment and rehabilitative services and to reduce the consequences of life experiences acquired by contact with a chemically dependent person with a chemical dependency;

(b)  early detection and recovery from the illness before lasting emotional or physical damage, or both, have occurred;

(c)  if lasting emotional or physical damage, or both, have occurred, to arrest of the illness before full disability has been reached;

(d)  the provision of facility requirements to meet division program standards and to improve public accessibility for services.

(11)(10) "Treatment" means the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation,; medical, psychiatric, psychological, and social service care,; vocational rehabilitation,; and career counseling, which may be extended to chemically dependent persons with a chemical dependency, intoxicated persons, and family members."

Section 3.  Section 53-24-207, MCA, is amended to read:

"53-24-207.   Comprehensive program for treatment. (1) The department shall establish a comprehensive and coordinated program for the treatment of chemically dependent persons with a chemical dependency, intoxicated persons, and family members.

(2)  The program must include:

(a)  emergency treatment provided by a facility affiliated with or part of the medical service of a general hospital;

(b)  inpatient treatment;

(c)  intermediate treatment;

(d)  outpatient treatment; and

(e)  followup services.

(3)  The department shall provide for adequate and appropriate treatment for alcoholics persons with a chemical dependency and intoxicated persons admitted under 53-24-301 through 53-24-303.

(4)  All appropriate public and private resources must be coordinated with and used in the program if possible.

(5)  The department shall prepare, publish, and distribute annually a list of all approved public and private treatment facilities."

Section 4.  Section 53-24-302, MCA, is amended to read:

"53-24-302.   Involuntary commitment of alcoholics persons with chemical dependency. (1) A person who is 18 years of age or older may be committed to the custody of the department by the district court upon the petition of the person's spouse or guardian, a relative, the certifying physician, or the chief of any approved public treatment facility, or the county attorney. The petition must allege that the person is an alcoholic who has a chemical dependency and habitually lacks self-control as to the use of alcoholic beverages or other intoxicating substances and that the person has threatened, attempted, or inflicted physical harm on another person or has threatened, attempted, or inflicted physical self-harm and that the person unless committed is likely to inflict physical harm on another person or to self-inflict physical harm or the person is incapacitated by alcohol or other intoxicating substances. A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment. The petition must be accompanied by a certificate of from a licensed physician who has examined the person within 2 days before submission of the petition and a certificate from a certified chemical dependency counselor that the person requires the ordered level of care. unless If the person whose commitment is sought has refused to submit to a medical examination, in which case the fact of refusal must be alleged in the petition. The certificate certificates must set forth the physician's and the certified chemical dependency counselor's findings in support of the allegations of the petition. A physician employed by the admitting 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 later than 10 days after the date that the petition was filed. A copy of the petition and of the notice of the hearing, including the date fixed by the court, must be served on the petitioner, the person whose commitment is sought, the person's next of kin other than the petitioner, a parent or the person's legal guardian if the person is a minor, the administrator in charge of the approved public treatment facility to which the person has been committed for emergency care, and any other person the court believes advisable. A copy of the petition and certificate must be delivered to each person notified.

(3)  At the hearing, the court shall hear all relevant testimony, including, if possible, the testimony of at least one licensed physician or certified chemical dependency counselor who has examined the person whose commitment is sought. The person has a right to have a licensed physician of the person's own choosing conduct an examination and testify on the person's behalf. If the person has no funds with which to pay the physician, the reasonable costs of one examination and testimony must be paid by the county. The person must be present unless the court believes that the person's presence is likely to be injurious to the person. The person must be advised of the right to counsel, and if the person is unable to hire counsel, the court shall appoint an attorney to represent the person at the expense of the county. The court shall examine the person in open court or, if advisable, shall examine the person in chambers. If the person refuses an examination by a licensed physician or a certified chemical dependency counselor 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 the person to the department for a period of not more than 5 days for purposes of a diagnostic examination.

(4)  If after hearing all relevant evidence, including the results of any diagnostic examination by the department, the court finds that grounds for involuntary commitment have been established by clear and convincing evidence, it shall make an order of commitment to the department. The court may not order commitment of a person unless it determines that the department is able to provide adequate and appropriate treatment for the person and that the treatment is likely to be beneficial.

(5)  A person committed under this section must remain in the custody of the department for treatment for a period of 40 days unless sooner discharged discharged sooner. At the end of the 40-day period, the person must automatically be discharged unless before expiration of the period the department obtains a court order from the district court of the committing district for the person's recommitment upon the grounds set forth in subsection (1) for a further period of 90 days unless sooner discharged discharged sooner. If a person has been committed because the person is an alcoholic has a chemical dependency and is likely to inflict physical harm on another person or to self-inflict physical harm, the department shall apply for recommitment if after examination it is determined that the likelihood still exists.

(6)  A person recommitted under subsection (5) who has not been discharged by the department before the end of the 90-day period must be discharged at the expiration of that period unless before expiration of the period the department obtains a court order from the district court of the committing district on the grounds set forth in subsection (1) for recommitment for a further period not to exceed 90 days. If a person has been committed because the person is an alcoholic has a chemical dependency and is likely to inflict physical harm on another person or to self-inflict physical harm, the department shall apply for recommitment if after examination it is determined that the likelihood still exists. Only two recommitment orders under subsections (5) and (6) are permitted.

(7)  Upon the filing of a petition for recommitment under subsection (5) or (6), the court shall fix a date for hearing no later than 10 days after the date that the petition was filed. A copy of the petition and of the notice of hearing, including the date fixed by the court, must be served on the petitioner, the person whose commitment is sought, the person's next of kin other than the petitioner, the original petitioner under subsection (1) if different from the petitioner for recommitment, one of the person's parents or the person's legal guardian if the person is a minor, and any other person the court believes advisable. At the hearing, the court shall proceed as provided in subsection (3).

(8)  A person committed to the custody of the department for treatment must be discharged at any time before the end of the period for which the person has been committed if either of the following conditions is met:

(a)  in case of an alcoholic a person with a chemical dependency committed on the grounds of likelihood of infliction of physical harm upon on another person or of self-inflicted physical harm, that the person is no longer in need of treatment or the likelihood no longer exists; or

(b)  in case of an alcoholic a person with a chemical dependency committed on the grounds of incapacity and the need of treatment, that the incapacity no longer exists, that further treatment will not be likely to bring about significant improvement in the person's condition, or that treatment is no longer adequate or appropriate.

(9)  The court shall inform the person whose commitment or recommitment is sought of the person's right to contest the application, be represented by counsel at every stage of any proceedings relating to the person's commitment and recommitment, and have counsel appointed by the court or provided by the court if the person 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 the person regardless of the person's wishes. The person whose commitment or recommitment is sought must be informed of the right to be examined by a licensed physician or a certified chemical dependency counselor of the person's choice. If the person is unable to obtain a licensed physician or a certified chemical dependency counselor and requests examination by a physician or a certified chemical dependency counselor, the court shall employ a licensed physician or a certified chemical dependency counselor.

(10) If a private treatment facility agrees with the request of a competent patient or the patient's parent, sibling, adult child, or guardian next of kin to accept the patient for treatment, the department may transfer the patient to the private treatment facility.

(11) A person committed under this section may at any time seek to be discharged from commitment by writ of habeas corpus or other appropriate means.

(12) The venue for proceedings under this section is the place in which the person to be committed resides or is present.

(13) (a) The county of residence shall pay all costs and expenses incurred before commitment that are related to the detention, examination, hospitalization, or transportation of a person with a chemical dependency who requires commitment.

(b) The county of residence is not obligated to pay any costs of treatment following commitment pursuant to this part. Medical, psychological, or other chemical dependency treatment provided pursuant to this part does not relieve a third party from a contractual obligation."

NEW SECTION. Section 5.  Code commissioner instruction. Wherever the terms "alcoholic" in reference to a person, "alcoholics", "chemically dependent", "the chemically dependent", "chemically dependent person", or "chemically dependent persons" appear in the Montana Code Annotated or in legislation enacted by the 1997 legislature, the code commissioner is directed to change the term to an appropriate reference, such as "a person who has a chemical dependency", "persons who have a chemical dependency", "a person with a chemical dependency", or "persons with a chemical dependency".

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