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Sub. H. B. No. 355As Passed by the House
As Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Willamowski, Hughes, Faber, Womer Benjamin, Latta, Schmidt, Woodard, D. Miller, Coates, Distel, Schneider, Salerno, Key
A BILL
To amend section 5120.17 of the Revised Code to
modify
the administrative
procedures for inmate
transport
or transfer to psychiatric hospitals.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5120.17 of the Revised Code be
amended as follows:
Sec. 5120.17. (A) As used in this section: (1)
"Mental illness" means a substantial disorder of
thought,
mood, perception, orientation, or memory that grossly
impairs
judgment, behavior, capacity to recognize reality, or
ability to
meet the ordinary demands of life. (2)
"Mentally ill person subject to hospitalization" means
a
mentally ill person to whom any of the following applies because
of the
person's mental illness: (a) The person represents a substantial risk of physical
harm
to the person as manifested by evidence of threats of, or
attempts at, suicide or serious self-inflicted bodily harm. (b) The person represents a substantial risk of physical
harm
to others as manifested by evidence of recent homicidal or
other
violent behavior, evidence of recent threats that place
another
in reasonable fear of violent behavior and serious
physical
harm, or other evidence of present dangerousness. (c) The person represents a substantial and immediate risk
of
serious physical impairment or injury to the person as
manifested by evidence that the person is unable to provide for
and is not providing for the person's basic physical needs
because
of the person's mental illness and that appropriate
provision for
those needs cannot be made immediately available
in the
community
correctional institution in which the inmate is
currently housed. (d) The person would benefit from treatment in a hospital
for
the person's mental illness and is in need of treatment in a
hospital as
manifested by evidence of behavior that creates a
grave and
imminent risk to substantial rights of others or the
person. (3)
"Psychiatric hospital" means a facility that is
operated
by the department of rehabilitation and correction, is
designated
as a psychiatric hospital, is licensed by the
department of mental
health pursuant to section 5119.20 of the
Revised Code, and is in
substantial
compliance with the standards set by the joint
commission on
accreditation of healthcare organizations.
(4)
"Inmate patient" means an inmate who is admitted to a
psychiatric hospital.
(5)
"Admitted" to a psychiatric hospital means being
accepted
for and staying at least one night at the psychiatric
hospital. (6)
"Treatment plan" means a written statement of
reasonable
objectives and goals for an inmate patient that is
based on the
needs of the inmate patient and that is established
by the
treatment team, with the active participation of the
inmate
patient and with documentation of that participation.
"Treatment
plan" includes all of the following: (a) The specific criteria to be used in evaluating
progress
toward achieving the objectives and goals; (b) The services to be provided to the inmate patient
during
the inmate patient's hospitalization; (c) The services to be provided to the inmate patient
after
discharge from the hospital, including, but not limited to,
housing and mental health services provided at the state
correctional institution to which the inmate patient returns
after
discharge or community mental health services. (7)
"Mentally retarded person subject to
institutionalization
by court order" has the same meaning as in
section 5123.01 of the
Revised Code. (8)
"Emergency transfer" means the transfer of a mentally
ill
inmate
to a psychiatric hospital when the inmate presents an
immediate
danger to self or others and requires hospital-level
care.
(9)
"Uncontested transfer" means the transfer of a mentally
ill
inmate to a psychiatric hospital when the inmate has the
mental
capacity to, and has waived, the hearing required by
division (B)
of this section. (10)(a)
"Independent decision-maker" means a person
who is
employed or retained by the department of rehabilitation
and
correction and is
appointed by the chief or chief clinical officer
of
mental health
services as a hospitalization hearing officer to
conduct due
process hearings. (b) An independent decision-maker who presides over any
hearing
or
issues any order pursuant to this section shall be a
psychiatrist,
psychologist, or attorney, shall not be specifically
associated
with the institution in which the inmate who is the
subject of the
hearing or order resides at the time of the hearing
or order, and
previously shall not have had any treatment
relationship with nor
have represented in any legal proceeding the
inmate who is the
subject of the order. (B)(1)
If
Except as provided in division (C) of this
section,
if the warden of a state correctional institution
or the
warden's
designee believes that
an inmate should be
transferred
from the
institution to a psychiatric hospital, the
department
shall hold a
hearing to determine whether the inmate
is a mentally
ill person
subject to hospitalization. The
department shall
conduct the
hearing at the state correctional institution
in which
the inmate
is confined, and the department shall
provide qualified
and
independent assistance to the inmate for
the hearing. An
independent decision-maker provided by the
department shall
preside at the hearing and determine whether
the inmate is a
mentally ill person subject to hospitalization. (2)
Prior
Except as provided in division (C) of this
section,
prior to the hearing held pursuant to division (B)(1) of
this
section, the warden
or the warden's designee shall give
written
notice to the inmate that the department is considering
transferring the inmate to a psychiatric hospital, that it will
hold a hearing on the proposed transfer at which the inmate may
be
present, that at the hearing the inmate has the rights
described
in division (B)(3) of
this section, and that the department will
provide qualified
and
independent assistance to the inmate with
respect to the
hearing. The department shall not hold the hearing
until the inmate has
received written notice of the proposed
transfer and has had
sufficient time to consult with the person
appointed by the
department to provide assistance to the inmate
and to prepare
for a presentation at the hearing. (3) At the hearing held pursuant to division (B)(1) of this
section, the department shall disclose to the
inmate the evidence
that it relies upon for the transfer and shall give the
inmate an
opportunity to be heard. Unless the
independent decision-maker
finds good cause for not permitting
it, the inmate may present
documentary evidence and the testimony of
witnesses at the hearing
and may confront and cross-examine witnesses called
by the
department. (4) If the independent decision-maker does not
find clear
and convincing evidence that the inmate is a mentally
ill person
subject to hospitalization, the department shall not
transfer the
inmate to a psychiatric hospital but shall continue
to confine the
inmate in the same state correctional institution
or in another
state correctional institution that the department
considers
appropriate. If the independent decision-maker finds clear
and
convincing evidence that the inmate is a mentally ill person
subject to hospitalization, the decision-maker shall order that
the inmate be transported to a psychiatric hospital for
observation and treatment for a period of not longer than thirty
days.
After the hearing, the independent decision-maker
shall
submit to the department a written decision that states
one of the
findings described in division (B)(4) of this section, the
evidence
that the decision-maker relied on in reaching that
conclusion, and, if the
decision is that the inmate should be
transferred, the reasons for the
transfer. (5) The director of rehabilitation and correction shall
adopt rules setting forth guidelines for the procedures required
under division (B) of this section.
(C)(1)
The department may transfer an inmate to a
psychiatric
hospital under an emergency transfer order if the
chief clinical
officer of mental health services of the department or that
officer's
designee and
either a psychiatrist employed or retained
by the department or, in the absence of a
psychiatrist, a
psychologist employed or retained by the department determines
that the inmate
is
mentally ill, presents
an immediate danger to
self or others, and
requires hospital-level
care. (2) The department may transfer an inmate to a psychiatric
hospital
under an uncontested transfer order if both of the
following
apply: (a) A psychiatrist employed or retained by the department
determines all of the following apply: (i) The inmate has a mental illness or is a mentally ill
person
subject to hospitalization. (ii) The inmate requires hospital care to address the mental
illness. (iii) The inmate has the mental capacity to make a reasoned
choice regarding the inmate's transfer to a hospital. (b) The inmate agrees to a transfer to a hospital. (3) The written notice and the hearing required under
divisions
(B)(1) and (2) of this section are not required for an
emergency
transfer or uncontested transfer under division (C)(1)
or (2) of
this section. (4) After an emergency transfer under division (C)(1) of
this
section, the department
shall hold a hearing for continued
hospitalization within five
working days after admission of the
transferred inmate to the psychiatric
hospital. The department
shall hold subsequent hearings pursuant to division
(F) of this
section at the same intervals as required for inmate
patients who
are transported to a psychiatric
hospital under division (B)(4) of
this section. (5) After an uncontested transfer under division (C)(2) of
this
section, the inmate may withdraw consent to the transfer in
writing at any
time. Upon the inmate's withdrawal of consent, the
hospital shall discharge
the inmate, or, within five working days,
the department shall hold a hearing
for continued hospitalization.
The department shall hold subsequent hearings
pursuant to division
(F) of this section at the same time intervals
as required for
inmate patients who are transported to a psychiatric hospital
under division (B)(4) of this section. (D)(1) If an independent decision-maker, pursuant to
division
(B)(4) of this section, orders an inmate transported to a
psychiatric
hospital
or if an inmate is transferred pursuant to
division
(C)(1)
or (2) of this section, the staff of the
psychiatric hospital shall
examine the inmate patient when
admitted to the psychiatric hospital
as soon as practicable after
the inmate patient arrives at the
hospital and no later than
twenty-four hours after the time of
arrival. The attending
physician responsible for the inmate
patient's care shall give the
inmate patient all information
necessary to enable the patient to
give a fully informed,
intelligent, and knowing consent to the
treatment the inmate
patient will receive in the hospital. The
attending physician
shall tell the inmate patient the expected
physical and medical
consequences of any proposed treatment and
shall give the inmate patient
the opportunity to consult with
another
psychiatrist at the hospital and with the inmate advisor. (2) No inmate patient who is transported
or transferred to a
psychiatric hospital
pursuant to division (B)(4)
or (C)(1) or
(2)
of this
section and who is
in the
physical custody of the
department of rehabilitation and correction shall be
subjected to
any of the following procedures: (b) Major aversive interventions; (c) Any unusually hazardous treatment procedures; (D)(E) The warden of the psychiatric hospital or the
warden's
designee shall
ensure that an inmate patient hospitalized
pursuant to this section receives
or has all of the following:
(1) Receives sufficient professional care within twenty
days
of admission to ensure that an evaluation of the inmate
patient's
current status, differential diagnosis, probable
prognosis, and
description of the current treatment plan have
been formulated and
are stated on the inmate patient's official chart; (2) Has a written treatment plan consistent with the
evaluation, diagnosis, prognosis, and goals of treatment; (3) Receives treatment consistent with the treatment plan; (4) Receives periodic reevaluations of the treatment plan by
the professional
staff at intervals not to exceed thirty days; (5) Is provided with adequate medical treatment for physical
disease or
injury; (6) Receives humane care and treatment, including, without
being limited to, the following: (a) Access to the facilities and personnel required
by the
treatment plan; (b) A humane psychological and physical environment; (c) The right to obtain current information
concerning the
treatment program, the expected outcomes of
treatment, and the
expectations for the inmate patient's
participation in the
treatment program in terms that the inmate
patient reasonably can
understand; (d) Opportunity for participation in programs
designed to
help the inmate patient acquire the skills needed to
work toward
discharge from the psychiatric hospital; (e) The right to be free from unnecessary or
excessive
medication and from unnecessary restraints or
isolation; (f) All other rights afforded inmates in the
custody of the
department consistent with rules, policy, and
procedure of the
department. (E)(F) The department shall hold a hearing for the continued
hospitalization of
an inmate patient who is transported
or
transferred to a psychiatric
hospital pursuant to
division (B)(4)
or (C)(1) of this section prior to the
expiration of the initial
thirty-day period of hospitalization
and, if necessary, at
ninety-day
intervals after the first hearing for continued
hospitalization.
The department shall hold any subsequent
hearings, if necessary, not later
than ninety days after the first
thirty-day hearing and then not later than
each one
hundred and
eighty days after the immediately prior hearing. An
independent
decision-maker shall conduct the hearings at the
psychiatric
hospital in which the inmate patient is confined.
The inmate
patient shall be afforded all of the rights set forth
in this
section for the hearing prior to transfer to the
psychiatric
hospital.
The department may not waive a hearing for continued
commitment. A hearing for continued commitment is
mandatory, and
neither the department nor the inmate patient may waive
for an
inmate patient transported or transferred to a
psychiatric
hospital pursuant to division (B)(4) or (C)(1)
of
this section
unless the inmate patient has the capacity to make a reasoned
choice to execute a waiver and waives the hearing in writing. An
inmate
patient who is transferred to a psychiatric hospital
pursuant to an
uncontested transfer under division (C)(2) of this
section and who
has scheduled hearings after withdrawal of consent
for hospitalization may
waive any of the scheduled hearings if the
inmate has the capacity to make a
reasoned choice and executes a
written waiver of the hearing.
If upon completion of the hearing the independent
decision-maker does not find by clear and convincing evidence that
the inmate patient is a mentally ill person subject to
hospitalization, the independent decision-maker shall order the
inmate patient's discharge from the psychiatric hospital. If
the
independent decision-maker finds by clear and convincing
evidence
that the inmate patient is a mentally ill person
subject to
hospitalization, the
independent decision-maker shall order
that
the inmate patient remain at the psychiatric hospital for
another
period not to exceed ninety days
continued hospitalization
until
the next required hearing. If at any time prior to the
expiration of the ninety-day
period, the warden of the psychiatric hospital or the warden's
designee
next required hearing for continued hospitalization, the
medical director
of the
hospital or the attending physician
determines that the treatment needs of the inmate
patient could be
met equally well in an available and
appropriate less restrictive
state correctional institution or
unit, the
warden or the warden's
designee
medical director or
attending
physician may discharge the
inmate to that facility. (F)(G) An inmate patient is entitled to the credits toward
the reduction of the
inmate patient's stated prison term pursuant
to Chapters 2967. and 5120. of
the Revised Code under the same
terms and conditions as if the inmate patient
were in any other
institution of the department of rehabilitation and
correction.
(G)(H) The adult parole authority may place an inmate
patient
on parole or under
post-release control directly from a
psychiatric hospital.
(H)(I) If an inmate patient
who is a mentally ill person
subject to hospitalization is to be
released from a psychiatric
hospital because of the expiration
of the inmate patient's stated
prison term, the warden of the
psychiatric hospital, at least
fourteen days before the
expiration date, may file an affidavit
under section 5122.11 or
5123.71 of the Revised Code with the
probate court in
the county where the psychiatric hospital is
located
or the probate court
in the county where the inmate will
reside, alleging
that the inmate patient is a mentally ill person
subject to
hospitalization by court order or a mentally retarded
person
subject to institutionalization by court order, whichever
is
applicable. The proceedings in the probate court shall be
conducted
pursuant to Chapter 5122. or 5123. of the Revised
Code
except as modified by this division.
Upon the request of the inmate patient, the probate court
shall grant the inmate patient an initial hearing under section
5122.141 of the Revised Code or a probable cause hearing under
section 5123.75
of the Revised Code before the expiration of
the
stated prison term. After holding a full hearing, the
probate
court shall make a disposition authorized by section
5122.15 or
5123.76 of the Revised Code before the date of the
expiration of
the stated prison term
unless the court grants a
continuance of
the hearing at the request of the inmate patient
or the inmate
patient's counsel. No inmate patient shall be held
in the custody
of the department of rehabilitation and
correction past the date
of the expiration of the inmate
patient's stated prison term. (I)(J) The department of
rehabilitation and correction shall
set standards for treatment
provided to inmate patients,
consistent where applicable with the
standards set by the joint
commission on accreditation of
healthcare organizations.
(J)(K) A certificate,
application, record, or report that is
made in compliance with
this section and that directly or
indirectly identifies an
inmate or former inmate whose
hospitalization has been sought
under this section is
confidential. No person shall disclose
the contents of any
certificate, application, record, or report
of that nature
or any
other psychiatric or medical record or report regarding a mentally
ill inmate unless
one of the following applies:
(1) The person identified, or the person's legal guardian,
if any, consents to disclosure, and the
director of
chief clinical
officer or designee of
mental health services
and
psychiatry of
the department of rehabilitation and
correction determines that
disclosure is in the best interests
of the person. (2) Disclosure is required by a court order signed by a
judge. (3) An inmate patient seeks access to the inmate patient's
own
psychiatric and medical records, unless access is specifically
restricted in the treatment plan for clear treatment reasons. (4) Hospitals and other institutions and facilities within
the department of rehabilitation and correction may exchange
psychiatric records and other pertinent information with other
hospitals, institutions, and facilities of the department, but
the
information that may be released about an inmate patient is
limited to medication history, physical health status and
history,
summary of course of treatment in the hospital, summary
of
treatment needs, and a discharge summary, if any. (5) An inmate patient's family member who is involved in
planning, providing, and monitoring services to the inmate
patient
may receive medication information, a summary of the
inmate
patient's diagnosis and prognosis, and a list of the
services and
personnel available to assist the inmate patient
and family if the
attending physician determines that disclosure
would be in the
best interest of the inmate patient. No
disclosure shall be made
under this division unless the inmate
patient is notified of the
possible disclosure, receives the
information to be disclosed, and
does not object to the
disclosure. (6) The department of rehabilitation and correction may
exchange psychiatric hospitalization records, other mental
health
treatment records, and other pertinent information with county
sheriffs' offices, hospitals, institutions, and facilities of the
department of
mental health and with community mental health
agencies and
boards of alcohol, drug addiction, and mental health
services
with which the department of mental health has a current
agreement for patient care or services to ensure continuity of
care. Disclosure under this division is limited to records
regarding
the inmate patient's
a mentally ill inmate's medication
history, physical
health
status and history, summary of course of
treatment,
summary of
treatment needs, and a discharge summary, if
any. No
office,
department, agency, or board shall disclose the
records and
other
information unless one of the following applies: (a) The
mentally ill inmate
patient is notified of the
possible
disclosure and consents to the disclosure. (b) The
mentally ill inmate
patient is notified of the
possible
disclosure, an attempt to gain the consent of the inmate
is
made,
and the office, department, agency, or board documents
the
attempt
to gain consent, the inmate's objections, if any, and
the
reasons
for disclosure in spite of the inmate's objections. (7) Information may be disclosed to staff members
designated
by the director of rehabilitation and correction for
the purpose
of evaluating the quality, effectiveness, and
efficiency of
services and determining if the services meet
minimum standards. (K) The name of an inmate patient shall not be retained
with
the information obtained during the evaluations.
(L)
The director of rehabilitation and correction may adopt
rules
setting forth guidelines for the procedures required under
divisions
(B), (C)(1), and (C)(2) of this section.
Section 2. That existing section 5120.17 of the Revised Code
is hereby
repealed.
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