Report Title:

Victim's rights

 

Description:

Provides right of victims, surviving immediate family members, and witnesses of crime to receive notice of custodial status of a defendant found unfit to proceed or acquitted on the ground of physical or mental disease, disorder, or defect and is committed to a psychiatric facility under the jurisdiction of the department of health.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

884

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO RIGHTS OF VICTIMS AND WITNESSES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 334-60.4, Hawaii Revised Statutes, is amended to read as follows:

"§334-60.4 Notice; waiver of notice; hearing on petition; waiver of hearing on petition for involuntary hospitalization. (a) The court shall set a hearing on the petition and notice of the time and place of such hearing shall be served in accordance with, and to those persons specified in, a current order of commitment. If there is no current order of commitment, notice of the hearing shall be served personally on the subject of the petition and served personally or by certified or registered mail, return receipt requested, deliverable to the addressee only, on the subject's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent and adult children, or if none can be found, notice of the hearing shall be served on at least one of the subject's closest adult relatives if any can be found. Notice of the hearing shall also be served on the public defender, attorney for the subject of the petition, or other court-appointed attorney as the case may be. If the subject of the petition was committed pursuant to sections 704-406, 704-411, or 706-607 notice also shall be served on the county department, agency, or office responsible for the enforcement of rights under section 801D-4, on behalf of any victim, surviving immediate family member, or witness. If the subject of the petition is a minor, notice of the hearing shall also be served upon the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition if such person can be found within the State. Notice shall also be given to such other persons as the court may designate."

SECTION 2. Section 334-60.5(i), Hawaii Revised Statutes, is amended to read as follows:

"§334-60.5 Hearing on petition.

(i) If after hearing all relevant evidence, including the result of any diagnostic examination ordered by the court, the court finds that an individual is not a person requiring medical, psychiatric, psychological, or other rehabilitative treatment or supervision, the court shall order that the individual be discharged if the individual has been hospitalized prior to the hearing. If the court finds that the criteria for involuntary hospitalization under section 334-60.2(1) has been met beyond a reasonable doubt and that the criteria under sections 334-60.2(2) and 334-60.2(3) have been met by clear and convincing evidence, the court may issue an order to any police officer to deliver the subject to a facility that has agreed to admit the subject as an involuntary patient, or if the subject is already a patient in a psychiatric facility, authorize the facility to retain the patient for treatment for a period of ninety days unless sooner discharged. An order of commitment shall specify which of those persons served with notice pursuant to section 334-60.4, together with such other persons as the court may designate, shall be entitled to receive any subsequent notice of intent to discharge, transfer, or recommit. The order of commitment also shall specify that notice shall be provided to the county department, agency, or office responsible for the enforcement of rights under section 801D-4, on behalf of any victim, surviving immediate family member, or witness where the subject of the petition was committed pursuant to sections 704-406, 704-411, or 706-607. The director of health shall be responsible for proper service of notice."

SECTION 3. Section 334-60.6, Hawaii Revised Statutes, is amended to read as follows:

"§334-60.6 Period of detention. (a) Except with regard to subsection (b),[T]the psychiatric facility may detain a subject for a period of time ordered by the court not to exceed ninety days from date of admission unless sooner discharged by the facility pursuant to section 334-76 or section 334-74. At the end of the ninety-day period the subject shall be discharged automatically except as provided in [sections 704-406, 704-411, and 706-607] subsection (b), unless before expiration of the period and by a proceeding initiated pursuant to section 334-60.3 the facility obtains a court order for the subject's recommitment. Recommitment for a period not to exceed ninety days may not be ordered unless the court determines that the criteria for involuntary hospitalization set forth in section 334-60.2 continue to exist. If at the end of a recommitment period the court finds that the criteria for involuntary hospitalization set forth in section 334-60.2 continue to exist and are likely to continue beyond ninety days, the court may order recommitment for a period not to exceed one hundred eighty days.

Nothing in this section shall preclude a facility from accepting for voluntary inpatient treatment, in accordance with the procedures in section 334-60.1, a patient, for whom the facility contemplates discharge pursuant to section 334-60.7 and who voluntarily agrees to further hospitalization after the period of commitment has expired, or where the patient is no longer a proper subject for commitment.

(b) A subject committed to a psychiatric facility pursuant to sections 704-406, 704-411, and 706-607 shall not be eligible for release under this section until one hundred and eighty days have elapsed from the date of admission. No subject committed pursuant to sections 704-406, 704-411, and 706-607 shall be automatically released at the end of the one hundred and eighty day period. At the end of the one hundred and eighty day period, the subject may petition for release pursuant to section 334-60.5. If the court determines that the subject shall not be released, the subject shall not again petition for release until ninety days have elapsed. No subject committed pursuant to sections 704-406, 704-411,and 706-607 shall be automatically released at the end of the ninety-day period. At the end of the ninety-day period, the subject may petition for release pursuant to section 334-60.5. If the court determines that the subject shall not be released, the court may order recommitment for a period not to exceed one hundred and ninety days."

SECTION 4. Section 334-60.7 Hawaii Revised Statutes is amended to read as follows:

"§334-60.7 Notice of intent to discharge[.]: hearing. (a) When the administrator of a psychiatric facility contemplates discharge of an involuntary patient because of expiration of the court order for commitment or because the patient is no longer a proper subject for commitment, as determined by the criteria for involuntary hospitalization in section 334-60.2 the administrator shall provide notice of intent to discharge, or if the patient voluntarily agrees to further hospitalization, the administrator shall provide notice of the patient's admission to voluntary inpatient treatment. The notice shall be filed with the court and served personally or by certified mail on those persons whom the order of commitment specifies as entitled to receive notice. If the patient is committed pursuant to sections 704-406, 704-411, or 706-607, the administrator shall serve notice by personal service or by certified mail on the county department, agency, or office responsible for the enforcement of rights under section 801D-4, on behalf of any victim, surviving immediate family member, or witness in accordance with section 801D-4.

(b) If no objection is filed within three days of service, the administrator of the psychiatric facility shall discharge or accept the patient for voluntary inpatient treatment. If any person specified as entitled to receive notice files a written objection to discharge or to the patient's admission to voluntary inpatient treatment on the grounds that the patient is a proper subject for commitment, the court shall conduct a hearing to determine if the patient still meets the criteria for involuntary hospitalization in section 334-60.2. If the court finds that the patient does not meet the criteria for involuntary hospitalization in section 334-60.2, the court shall issue an order of discharge from the commitment. If the court finds that the patient does meet the criteria for involuntary hospitalization in section 334-60.2, the court shall issue an order denying discharge from the commitment."

SECTION 5. Section 334-76, Hawaii Revised Statutes, is amended to read as follows:

"§334-76 Discharge from custody. Subject to any special requirements of law as provided in sections 704-406, 704-411, and 706-607 or elsewhere, with respect to patients committed on court order, the administrator of a psychiatric facility, pursuant to section 334-60.7, shall send a notice of intent to discharge or notice of the patient's admission to voluntary inpatient treatment to those persons specified in the order of commitment as entitled to receive notice of intent to discharge [and the]. The administrator also shall serve notice by personal service or by certified mail on the county department, agency, or office responsible for the enforcement of rights under section 801D-4, on behalf of any victim, surviving immediate family member, or witness in accordance with section 801D-4. The administrator or the deputy or the physician assuming medical responsibility for the patient shall discharge an involuntary patient when the patient is no longer a proper subject for commitment, as determined by the criteria for involuntary hospitalization in section 334-60.2.

Nothing in this section shall preclude a facility from accepting for voluntary inpatient treatment, in accordance with the procedures in section 334-60.1, a patient for whom the facility contemplates discharge pursuant to section 334-60.7 and who voluntarily agrees to further hospitalization after the period of commitment has expired or where the patient is no longer a proper subject for commitment."

SECTION 6. Section 334-82, Hawaii Revised Statutes, is amended to read as follows:

"§334-82 Order to show cause; guardian ad litem. Immediately upon receipt of a request, the court shall issue an order to show cause directed to the administrator of the facility and commanding the administrator to show cause at a date and time certain, not later than five days thereafter, why the patient should not be discharged forthwith. A copy of the request shall be attached to the order to show cause. The form of the order to show cause shall be prescribed and supplied free of charge by the court. The order to show cause shall issue without cost and may be served as any other civil process or by any responsible person appointed by the court for that purpose. At any stage of the proceedings, the court may appoint a guardian ad litem for the patient. The guardian ad litem may be a member of the bar of the court or any other responsible person. Service on the administrator may be effected by leaving certified copies of the order to show cause and request at the facility with any person exercising authority. If the patient has been committed pursuant to sections 704-406, 704-411, or 706-607, the request and the order to show cause also shall be served personally or by certified mail on the county department, agency, or office responsible for the enforcement of rights under section 801D-4, on behalf of any victim, surviving immediate family member, or witness in accordance with section 801D-4."

SECTION 7. Section 801D-4, Hawaii Revised Statutes, is amended to read as follows:

"§801D-4 Basic bill of rights for victims and witnesses. (a) Upon written request, victims and surviving immediate family members of crime shall have the following rights:

(1) To be informed by the police and the prosecuting attorney of the final disposition of the case. If the crime charged is a felony, the victim or a surviving immediate family member shall be notified of major developments in the case and whenever the defendant or perpetrator is released from custody. The victim or a surviving immediate family member shall also be consulted and advised about plea bargaining by the prosecuting attorney;

(2) To be notified by the prosecuting attorney if a court proceeding to which they have been subpoenaed will not proceed as scheduled;

(3) To receive protection from threats or harm;

(4) To be informed by the police, victim/witness counselor, or other criminal justice personnel, of financial assistance and other social services available as a result of being a witness to or a victim of crime, including information on how to apply for the assistance and services;

(5) To be provided by the court, whenever possible, with a secure waiting area during court proceedings that does not require them to be in close proximity to defendants and families and friends of defendants;

(6) To have any stolen or other personal property expeditiously returned by law enforcement agencies when the property is no longer needed as evidence. If feasible, all the property, except weapons, currency, contraband, property subject to evidentiary analysis, and property, the ownership of which is disputed, shall be returned to the person within ten days of being taken; and

(7) To be informed by the department of public safety of changes planned by the department in the custodial status of the offender that allows or results in the release of the offender into the community, including escape, furlough, work release, placement on supervised release, release on parole, release on bail bond, release on appeal bond, and final discharge at the end of the prison term.

(b) Upon written request, the victim or the parent or guardian of a minor or incapacitated victim of an offense under section 707-730, 707-731, or 707-732(1)(a) shall have the right to be informed of the human immunodeficiency virus (HIV) status of the person who has been convicted or a juvenile who has been adjudicated under that section and to receive counseling regarding HIV. The testing shall be performed according to the protocols set forth in section 325-17. Upon request of the victim, or the parent or guardian of a minor or incapacitated victim, the department of health shall provide counseling.

(c) Pursuant to sections 334-60.7, 334-76, and 334-82, victims, surviving immediate family members, or witnesses of a crime shall have the right to be notified of the custodial status of a patient who has been committed pursuant to sections 704-406, 704-411, or 706-607."

SECTION 8. This Act shall apply to the release, after the effective date of this Act, of any patient placed under the jurisdiction of the department of health, whether before or after the effective date of this Act, pursuant to chapter 334, Hawaii Revised Statutes, as a result of having been found unfit to proceed under section 704-406, Hawaii Revised Statutes, or having been acquitted under section 704-411, Hawaii Revised Statutes.

SECTION 9. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 10. This Act shall take effect upon approval.

 

INTRODUCED BY:

_____________________________