HB5351 103RD GENERAL ASSEMBLY

LRB103 38673 RLC 68810 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5351

Introduced 2/9/2024, by Rep. Lindsey LaPointe

SYNOPSIS AS INTRODUCED:

405 ILCS 5/2-107.1	from Ch. 91 1/2, par. 2-107.1
405 ILCS 5/3-100	from Ch. 91 1/2, par. 3-100
405 ILCS 5/3-752
405 ILCS 5/3-753
405 ILCS 5/3-812	from Ch. 91 1/2, par. 3-812

Amends the Mental Health and Developmental Disabilities Code. Provides that the circuit court has jurisdiction under the Admission, Transfer and Discharge Procedures for the Mentally Ill Chapter of the Code over persons not charged with a felony who are subject to involuntary admission on an inpatient basis. Provides that the circuit court has jurisdiction over all persons who are subject to involuntary admission on an outpatient basis under the Admission on an Outpatient Basis by Court Order Article of that Chapter of the Code, whether or not they are charged with a felony. Provides that a petition that the respondent is subject to involuntary admission on an outpatient basis must be accompanied by one certificate (rather than 2 certificates) of a physician, qualified examiner, psychiatrist, advanced practice psychiatric nurse, or clinical psychologist which certifies that the respondent is subject to involuntary admission on an outpatient basis. Provides that a court order placing the respondent in the care and custody of a relative or other person willing and able to properly care for him or her or committing the respondent to alternative treatment at a community mental health provider may include provisions requiring that the respondent participate in: case management services, individual or group therapy, day or partial day programs, educational or vocational training, supervised living, assertive community treatment team services, substance use disorder treatment and testing and any other service that would help prevent relapse or deterioration resulting in hospitalization. Provides that psychotropic medication or electroconvulsive therapy and accompanying tests may be ordered only pursuant to the administration of psychotropic medication and electroconvulsive therapy upon application to a court provisions of the Code. Provides that the court may also order the custodian or treatment provider to file periodic reports with the court, and provide copies to the State's Attorney and respondent's counsel, reflecting the respondent's participation in treatment and his or her clinical condition.

A BILL FOR

AN ACT concerning health.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Mental Health and Developmental Disabilities Code is amended by changing Sections 2-107.1, 3-100, 3-752, 3-753, and 3-812 as follows:

(405 ILCS 5/2-107.1) (from Ch. 91 1/2, par. 2-107.1)

Sec. 2-107.1. Administration of psychotropic medication and electroconvulsive therapy upon application to a court.

(a) (Blank).

(a-5) Notwithstanding the provisions of Section 2-107 of this Code, psychotropic medication and electroconvulsive therapy may be administered to an adult recipient of services on an inpatient or outpatient basis without the informed consent of the recipient under the following standards:

(1) Any person 18 years of age or older, including any guardian, may petition the circuit court for an order authorizing the administration of psychotropic medication and electroconvulsive therapy to a recipient of services. The petition shall state that the petitioner has made a good faith attempt to determine whether the recipient has executed a power of attorney for health care under the Powers of Attorney for Health Care Law or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act and to obtain copies of these instruments if they exist. If either of the above-named instruments is available to the petitioner, the instrument or a copy of the instrument shall be attached to the petition as an exhibit. The petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, any known agent or attorney-in-fact, if any, and the guardian, if any, no later than 3 days prior to the date of the hearing. Service of the petition and notice of the time and place of the hearing may be made by transmitting them via facsimile machine to the respondent or other party. Upon receipt of the petition and notice, the party served, or the person delivering the petition and notice to the party served, shall acknowledge service. If the party sending the petition and notice does not receive acknowledgement of service within 24 hours, service must be made by personal service.

The petition may include a request that the court authorize such testing and procedures as may be essential for the safe and effective administration of the psychotropic medication or electroconvulsive therapy sought to be administered, but only where the petition sets forth the specific testing and procedures sought to be administered.

If a hearing is requested to be held immediately following the hearing on a petition for involuntary admission, then the notice requirement shall be the same as that for the hearing on the petition for involuntary admission, and the petition filed pursuant to this Section shall be filed with the petition for involuntary admission.

(2) The court shall hold a hearing within 7 days of the filing of the petition. The People, the petitioner, or the respondent shall be entitled to a continuance of up to 7 days as of right. An additional continuance of not more than 7 days may be granted to any party (i) upon a showing that the continuance is needed in order to adequately prepare for or present evidence in a hearing under this Section or (ii) under exceptional circumstances. The court may grant an additional continuance not to exceed 21 days when, in its discretion, the court determines that such a continuance is necessary in order to provide the recipient with an examination pursuant to Section 3-803 or 3-804 of this Act, to provide the recipient with a trial by jury as provided in Section 3-802 of this Act, or to arrange for the substitution of counsel as provided for by the Illinois Supreme Court Rules. The hearing shall be separate from a judicial proceeding held to determine whether a person is subject to involuntary admission on an inpatient basis but may be heard immediately preceding or following such a judicial proceeding and may be heard by the same trier of fact or law as in that judicial proceeding.

(3) Unless otherwise provided herein, the procedures set forth in Article VIII of Chapter III of this Act, including the provisions regarding appointment of counsel, shall govern hearings held under this subsection (a-5).

(4) Psychotropic medication and electroconvulsive therapy may be administered to the recipient if and only if it has been determined by clear and convincing evidence that all of the following factors are present. In determining whether a person meets the criteria specified in the following paragraphs (A) through (G), the court may consider evidence of the person's history of serious violence, repeated past pattern of specific behavior, actions related to the person's illness, or past outcomes of various treatment options.

(A) That the recipient has a serious mental illness or developmental disability.

(B) That because of said mental illness or developmental disability, the recipient currently exhibits any one of the following: (i) deterioration of his or her ability to function, as compared to the recipient's ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought, (ii) suffering, or (iii) threatening behavior.

(C) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated episodic occurrence of these symptoms.

(D) That the benefits of the treatment outweigh the harm.

(E) That the recipient lacks the capacity to make a reasoned decision about the treatment.

(F) That other less restrictive services have been explored and found inappropriate.

(G) If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.

(5) In no event shall an order issued under this Section be effective for more than 90 days. A second 90-day period of involuntary treatment may be authorized pursuant to a hearing that complies with the standards and procedures of this subsection (a-5). Thereafter, additional 180-day periods of involuntary treatment may be authorized pursuant to the standards and procedures of this Section without limit. If a new petition to authorize the administration of psychotropic medication or electroconvulsive therapy is filed at least 15 days prior to the expiration of the prior order, and if any continuance of the hearing is agreed to by the recipient, the administration of the treatment may continue in accordance with the prior order pending the completion of a hearing under this Section.

(6) An order issued under this subsection (a-5) shall designate the persons authorized to administer the treatment under the standards and procedures of this subsection (a-5). Those persons shall have complete discretion not to administer any treatment authorized under this Section. The order shall also specify the medications and the anticipated range of dosages that have been authorized and may include a list of any alternative medications and range of dosages deemed necessary.

(a-10) The court may, in its discretion, appoint a guardian ad litem for a recipient before the court or authorize an existing guardian of the person to monitor treatment and compliance with court orders under this Section.

(b) A guardian may be authorized to consent to the administration of psychotropic medication or electroconvulsive therapy to an objecting recipient only under the standards and procedures of subsection (a-5).

(c) Notwithstanding any other provision of this Section, a guardian may consent to the administration of psychotropic medication or electroconvulsive therapy to a non-objecting recipient under Article XIa of the Probate Act of 1975.

(d) Nothing in this Section shall prevent the administration of psychotropic medication or electroconvulsive therapy to recipients in an emergency under Section 2-107 of this Act.

(e) Notwithstanding any of the provisions of this Section, psychotropic medication or electroconvulsive therapy may be administered pursuant to a power of attorney for health care under the Powers of Attorney for Health Care Law or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act over the objection of the recipient if the recipient has not revoked the power of attorney or declaration for mental health treatment as provided in the relevant statute.

(f) The Department shall conduct annual trainings for physicians and registered nurses working in State-operated mental health facilities on the appropriate use of psychotropic medication and electroconvulsive therapy, standards for their use, and the preparation of court petitions under this Section.

(Source: P.A. 100-710, eff. 8-3-18.)

(405 ILCS 5/3-100) (from Ch. 91 1/2, par. 3-100)

Sec. 3-100. The circuit court has jurisdiction under this Chapter over persons not charged with a felony who are subject to involuntary admission on an inpatient basis. The circuit court has jurisdiction over all persons who are subject to involuntary admission on an outpatient basis under Article VII-A of this Code, whether or not they are charged with a felony. Inmates of penal institutions shall not be considered as charged with a felony within the meaning of this Chapter. Court proceedings under Article VIII of this Chapter may be instituted as to any such inmate at any time within 90 days prior to discharge of such inmate by expiration of sentence or otherwise, and if such inmate is found to be subject to involuntary admission, the order of the court ordering hospitalization or other disposition shall become effective at the time of discharge of the inmate from penal custody. The circuit court has jurisdiction over all persons alleged to be in need of treatment under Section 2-107.1 of this Code, whether or not they are charged with a felony.

(Source: P.A. 99-179, eff. 7-29-15.)

(405 ILCS 5/3-752)

Sec. 3-752. Certificate.

(a) The petition may be accompanied by the certificate of a physician, qualified examiner, psychiatrist, advanced practice psychiatric nurse, or clinical psychologist which certifies that the respondent is subject to involuntary admission on an outpatient basis. The certificate shall indicate that the physician, qualified examiner, psychiatrist, advanced practice psychiatric nurse, or clinical psychologist personally examined the respondent not more than 72 hours prior to the completion of the certificate. It shall also contain the physician's, qualified examiner's, psychiatrist's, advanced practice psychiatric nurse's, or clinical psychologist's clinical observations, other factual information relied upon in reaching a diagnosis, and a statement as to whether the respondent was advised of his or her rights under Section 3-208.

(b) Upon receipt of the petition either with or without a certificate, if the court finds the documents are in order, it may make such orders pursuant to Section 3-753 as are necessary to provide for examination of the respondent. If the petition is not accompanied by a certificate 2 certificates executed pursuant to Section 3-753, the court may order the respondent to present himself or herself for examination at a time and place designated by the court. If the petition is accompanied by a certificate 2 certificates executed pursuant to Section 3-753 and the court finds the documents are in order, the court shall set the matter for hearing.

(Source: P.A. 101-587, eff. 1-1-20.)

(405 ILCS 5/3-753)

Sec. 3-753. Examination. If no certificate was filed, the respondent shall be examined separately by a physician, clinical psychologist, advanced practice psychiatric nurse, or qualified examiner, or and by a psychiatrist. If a certificate executed by a psychiatrist was filed, the respondent shall be examined by a physician, clinical psychologist, qualified examiner, advanced practice psychiatric nurse, or psychiatrist. If a certificate executed by a qualified examiner, clinical psychologist, advanced practice psychiatric nurse, or a physician who is not a psychiatrist was filed, the respondent shall be examined by a psychiatrist. The examining physician, clinical psychologist, qualified examiner, advanced practice psychiatric nurse, or psychiatrist may interview by telephone or in person any witnesses or other persons listed in the petition for involuntary admission. If, as a result of an examination, a certificate is executed, the certificate shall be promptly filed with the court. If a certificate is executed, the examining physician, clinical psychologist, qualified examiner, advanced practice psychiatric nurse, or psychiatrist may also submit for filing with the court a report in which his or her findings are described in detail, and may rely upon such findings for his opinion that the respondent is subject to involuntary admission. Copies of the certificates shall be made available to the attorneys for the parties upon request prior to the hearing.

(Source: P.A. 101-587, eff. 1-1-20.)

(405 ILCS 5/3-812) (from Ch. 91 1/2, par. 3-812)

Sec. 3-812. Court ordered admission on an outpatient basis; modification; revocation.

(a) If a respondent is found subject to involuntary admission on an outpatient basis, the court may issue an order: (i) placing the respondent in the care and custody of a relative or other person willing and able to properly care for him or her; or (ii) committing the respondent to alternative treatment at a community mental health provider.

(b) An order placing the respondent in the care and custody of a relative or other person shall specify the powers and duties of the custodian. An order of care and custody entered pursuant to this Section may grant the custodian the authority to admit a respondent to a hospital if the respondent fails to comply with the conditions of the order. If necessary in order to obtain the hospitalization of the respondent, the custodian may apply to the court for an order authorizing an officer of the peace to take the respondent into custody and transport the respondent to a mental health facility. The provisions of Section 3-605 shall govern the transportation of the respondent to a mental health facility, except to the extent that those provisions are inconsistent with this Section. No person admitted to a hospital pursuant to this subsection shall be detained for longer than 24 hours, excluding Saturdays, Sundays, and holidays, unless, within that period, a petition for involuntary admission on an inpatient basis and a certificate supporting such petition have been filed as provided in Section 3-611.

(c) Alternative treatment shall not be ordered unless the program being considered is capable of providing adequate and humane treatment in the least restrictive setting which is appropriate to the respondent's condition. The court shall have continuing authority to modify an order for alternative treatment if the recipient fails to comply with the order or is otherwise found unsuitable for alternative treatment. Prior to modifying such an order, the court shall receive a report from the facility director of the program specifying why the alternative treatment is unsuitable. The recipient shall be notified and given an opportunity to respond when modification of the order for alternative treatment is considered. If the court determines that the respondent has violated the order for alternative treatment in the community or that alternative treatment in the community will no longer provide adequate assurances for the safety of the respondent or others, the court may revoke the order for alternative treatment in the community and may order a peace officer to take the recipient into custody and transport him to an inpatient mental health facility. The provisions of Section 3-605 shall govern the transportation of the respondent to a mental health facility, except to the extent that those provisions are inconsistent with this Section. No person admitted to a hospital pursuant to this subsection shall be detained for longer than 24 hours, excluding Saturdays, Sundays, and holidays, unless, within that period, a petition for involuntary admission on an inpatient basis and a certificate supporting such petition have been filed as provided in Section 3-611.

(d) A court order placing the respondent in the care and custody of a relative or other person willing and able to properly care for him or her or committing the respondent to alternative treatment at a community mental health provider may include provisions requiring that the respondent participate in: case management services, individual or group therapy, day or partial day programs, educational or vocational training, supervised living, assertive community treatment team services, substance use disorder treatment and testing and any other service that would help prevent relapse or deterioration resulting in hospitalization. Psychotropic medication or electroconvulsive therapy and accompanying tests may be ordered only pursuant to Section 2-107.1. The court may also order the custodian or treatment provider to file periodic reports with the court, and provide copies to the State's Attorney and respondent's counsel, reflecting the respondent's participation in treatment and his or her clinical condition.

(Source: P.A. 98-221, eff. 1-1-14.)