AN ACT CONCERNING THE APPOINTMENT AND POWERS OF CONSERVATORS AND SPECIAL LIMITED CONSERVATORS WITH RESPECT TO PSYCHIATRIC TREATMENT.

AN ACT CONCERNING THE APPOINTMENT AND POWERS OF CONSERVATORS AND SPECIAL LIMITED CONSERVATORS WITH RESPECT TO PSYCHIATRIC TREATMENT.

This bill specifies that criminal defendants who cannot or will not consent to take psychiatric medication needed to treat their condition are entitled to legal representation in matters involving petitions to subject them to forced medication. It also sets notice and hearing rules governing their involuntary medication proceedings.

It also specifies that probate court orders on this issue and on the issue of involuntarily releasing any psychiatric patient's medical records must be supported by clear and convincing evidence.

Current law has no legal representation provision or explicit legal standard for ordering forced medication, but clear and convincing evidence is the standard apparently applied in practice. Current law also has no procedure or standards for releasing medical records when defendants are unable or unwilling to give permission on their own.

The bill specifies that a criminal defendant who is unwilling or unable to consent to the administration of psychiatric medication is entitled to legal representation at probate court hearings involving petitions to administer the medication involuntarily. It requires the probate court to appoint the attorney if the defendant is indigent or unable to request or obtain one. The court must pay the attorney if the defendant cannot. The bill specifies that funds come from the Judicial Department if the department has appropriated money for this purpose; otherwise the funds must come from the Probate Court Administration Fund.

The bill requires the probate court to have a marshal or other disinterested person personally serve citations on the defendant unless the court determines this would adversely affect the person's health and his or her attorney and conservator. Citations must inform them that they must appear at a court hearing and specify the hearing's time and location. They must be served at least seven days before the scheduled hearing date. The hearing date must be scheduled for no more than 30 days after the court receives the application.

The bill requires the court to send notices to the people listed above within 30 days of receiving the application. This appears to allow hearings to be held before the notices are received, since the bill requires the court to schedule the hearing for a date no more than 30 days after receiving the application. The bill requires notices to contain the same information courts include in notices involving applications seeking the involuntary appointment of a conservator. This information is:

1. the nature of involuntary representation sought and its legal consequences (however, the hearings covered in the bill concern the appropriateness of involuntary medication, not conservator appointments);

2. the facts alleged in the application; and

3. the hearing's date and time.

The bill also allows the court to notify people, in the manner it directs (1) with an interest in the defendant and (2) whom the patient requests about hearing dates and locations.

Probate court judges can appoint special limited conservators and authorize them to make medication decisions on behalf of incompetent psychiatric patients. The bill specifies that clear and convincing evidence is the standard of proof the court must apply to existing criteria for ordering forced medication, namely that (1) medication is necessary to treat the patient's condition and (2) the patient is unable to give knowing and voluntary consent.

The bill also makes clear and convincing evidence the standard for probate court orders to forcibly medicate patients who are able but unwilling to consent. As under existing law, the findings required for issuing these orders are:

1. the patient is capable of giving informed consent but refuses to consent to medication for treatment of psychiatric disabilities;

2. there is no less intrusive beneficial treatment; and

3. without medication, the patient's psychiatric condition will not improve and will place the patient or others in direct threat of harm.

The bill authorizes court-appointed conservators to release an incompetent person's otherwise-confidential medical records. It requires the probate court judge's determination to issue such orders be supported by clear and convincing evidence that (1) the patient is unable or unwilling to give consent on his or her own and (2) the records are needed to make treatment decisions.

Yea

Nay

(03/14/2007)