HB 608-FN – AS INTRODUCED

2005 SESSION

05-0088

09/01

HOUSE BILL 608-FN

AN ACT establishing a right to trial by jury prior to a nonemergency involuntary admission.

SPONSORS: Rep. Itse, Rock 9; Rep. Albert, Straf 1

COMMITTEE: Judiciary

ANALYSIS

This bill establishes a right to trial by jury for persons being considered for nonemergency involuntary admission to the state mental health services system.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05-0088

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT establishing a right to trial by jury prior to a nonemergency involuntary admission.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Court Jurisdiction; Involuntary Admissions. Amend RSA 135-C:20 to read as follows:

135-C:20 Jurisdiction.

I. For proceedings under RSA 135-C:27-33, jurisdiction is vested in the district court of the city or town where the person is detained.

II. Except as provided in paragraph III, for proceedings under RSA 135-C:34-54, jurisdiction is vested in the probate court in the county where the person sought to be admitted resides or is detained. For a client who is subject to an order for involuntary admission under this chapter, jurisdiction for a hearing held pursuant to this chapter is vested in the probate court for the county where the receiving facility that has been treating the client most recently is located, unless the court making the initial involuntary admission order has specifically retained jurisdiction over such person. The probate court judge who presides at hearings held pursuant to this chapter shall be reimbursed at the same per diem rate as court appointed referees in superior court pursuant to RSA 519:15.

III. For any person sought to be admitted under RSA 135-C:34-54 who requests a jury trial, jurisdiction is vested in the superior court in the county where the person resides or is detained.

2 Nonemergency Involuntary Admissions; Right to Jury Trial Established. Amend RSA 135-C:22 to read as follows:

135-C:22 Right to Legal Counsel; Right to Jury Trial.

I. The right of a client or a person sought to be admitted to a program or facility to legal counsel prior to and during any judicial hearing conducted under this chapter shall be absolute and unconditional. The right to legal counsel for any client or person sought to be admitted during any judicial proceeding conducted under this chapter shall be waived only if the client or person sought to be admitted makes an informed decision to do so.

II. A person sought to be admitted under RSA 135-C:34-54 shall have the right to a jury trial in the superior court upon request.

3 Nonemergency Involuntary Admissions; Petition for Involuntary Admission; Court Reference Change. Amend RSA 135-C:32 to read as follows:

135-C:32 Ten-Day Limitation; Petition for Involuntary Admission. No person shall be admitted for an involuntary emergency admission under RSA 135-C:27-33 for longer than a 10-day period, unless a subsequent petition for involuntary emergency admission which contains allegations of specific acts or actions which occurred subsequent to the initial involuntary emergency admission is completed and the admission is ordered by a physician or A.R.N.P., as defined in RSA 135-C:2, II-a, in accordance with RSA 135-C:28, or unless a petition requesting a judicial hearing on the issue of involuntary admission under RSA 135-C:34-54 has been filed with the appropriate [probate] court within the involuntary admission period. Upon the filing of the petition with the [probate] court, the period of involuntary emergency admission may be extended until the issuance of the order of the [probate] court pursuant to RSA 135-C:45.

4 Nonemergency Involuntary Admissions; Hearing Date; Superior Court Added. Amend RSA 135-C:37 to read as follows:

135-C:37 Hearing Date. The probate court judge or superior court justice of original jurisdiction shall, upon receipt of the petition, set a hearing date. The hearing shall be held within 15 days, excluding Saturdays, Sundays, and legal holidays, from the date of receipt of the petition.

5 Nonemergency Involuntary Admissions; Copies of Petition; Superior Court Added. Amend RSA 135-C:38 to read as follows:

135-C:38 Copies of Petition. Subsequent to receipt of the petition for involuntary admission, the register of probate or superior court clerk shall, within 2 days of receipt of the petition, forward 2 copies to the person sought to be admitted.

6 Nonemergency Involuntary Admissions; Custody Prior to Hearing; Court Reference Change. Amend RSA 135-C:39, II to read as follows:

II. A period of involuntary admission ordered by a [probate] court pursuant to RSA 135-C:45 may be continued under subparagraph I(c), provided that a petition requesting a judicial hearing on the issue of subsequent involuntary admission has been filed with the appropriate [probate] court within the initial period of involuntary admission. Upon the filing of the petition, the period of involuntary admission may be extended until the issuance of the order of the [probate] court pursuant to RSA 135-C:45; provided that the [probate] court shall act upon the petition within 30 days of its filing.

7 Nonemergency Involuntary Admissions; Conduct of Hearing; Right to Jury Trial. Amend RSA 135-C:43 to read as follows:

135-C:43 Conduct of Hearing. For hearings held under this chapter, the person sought to be admitted shall have the right to legal counsel, to a jury trial, to present evidence on his or her own behalf, to have a closed hearing unless he or she requests otherwise, and to cross-examine witnesses. He or she shall also have the right to summon as a witness the psychiatrist who filed the report pursuant to RSA 135-C:40 and to cross-examine him or her. A transcript, which may consist only of any audio recording of the proceedings, and at the court’s discretion, shall be made of the entire proceeding. The transcript may serve as the basis for an appeal and the costs of the transcript shall be apportioned, within the judge’s discretion, between the state and the person sought to be admitted. The transcript or recording shall be retained by the court for 2 years or until official notice is received of discharge, if the person is admitted on an involuntary basis and subsequently discharged.

8 Nonemergency Involuntary Admissions; Amended Orders; Court Reference Change. Amend RSA 135-C:47, I to read as follows:

I. The court issuing an order for treatment, other than inpatient treatment at a receiving facility, shall retain jurisdiction of the case for the duration of the order. At any time during the period of such order, any person may petition the [probate] court having jurisdiction for a hearing on whether the order should be amended or the person should be involuntarily admitted to a receiving facility.

9 Nonemergency Involuntary Admissions; Action for Discharge; Court Reference Change. Amend RSA 135-C:53 to read as follows:

135-C:53 Action for Discharge. Any person who has been involuntarily admitted to a receiving facility may file at the probate or superior court of the county in which he or she was originally admitted, or where he or she resides, a petition setting forth his or her name, the underlying circumstances and date of the prior order of the court ordering his or her involuntary admission, a request for discharge from care and custody or admission to a receiving facility, and the reasons for such request. The petition shall be accompanied by the certificate of a psychiatrist stating that the patient is no longer in need of involuntary admission and setting forth the facts upon which such an opinion is based. Upon receipt of the petition and the certificate, the court shall conduct a hearing pursuant to RSA 135-C:34-54.

10 Nonemergency Involuntary Admissions; Habeus Corpus; Court Reference Change. Amend RSA 135-C:54 to read as follows:

135-C:54 Habeas Corpus. This chapter shall not be construed to deprive any person of the benefits of the writ of habeas corpus. If the court issuing the writ of habeas corpus grants relief, the court shall enter an order discharging the person and shall transmit a certified copy of it to the [probate] court entering the original order of involuntary admission. Upon receipt of the certified copy, the [probate] court shall enter an order finding that such person has been discharged by order of the court.

11 Effective Date. This act shall take effect January 1, 2006.

LBAO

05-0088

9/14/05

HB 608 FISCAL NOTE

AN ACT establishing a right to trial by jury prior to a nonemergency involuntary admission.

FISCAL IMPACT:

The Judicial Branch and Department of Health and Human Services state this bill will increase state and local expenditures by an indeterminable amount in FY 2006 and each year thereafter. There will be no fiscal impact on state, county and local revenues or county expenditures.

METHODOLOGY:

The Judicial Branch indicated there were 400 non-emergency involuntary commitment proceedings in the probate court in 2003. 248 of these cases were settled without a trial, and the remaining 152 cases went to trial. The Judicial Branch is not able to estimate how many of the cases going to trial would request a jury trial but believes the percentage will be significant. The average trial length cannot be determined but the Branch assumed an average trial would last one day.

The Branch indicated the cost of a full day’s trial is as follows:

If the percentage of cases going to trial is between 10% and 50%, then the range of possible costs to the state general fund will be between $23,000 and $115,400. Additional costs will be incurred to pay for mileage for jurors, clerical processing, and the cost of impaneling jurors.

The Department of Health and Human Services assumed that of the 400 petitions for non-emergency involuntary admission, 200 are resolved and 200 go to trial before a probate court judge. The Department stated individuals subject to involuntary admission have a right to legal counsel and most of these individuals are unable to pay. In addition, each case includes an examination by an independent psychiatrist and requires legal representation of the State of New Hampshire. The Department estimated the additional costs for jury trials assuming 200 cases per year as follows: