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12  AN ACT concerning the care and treatment act for mentally ill persons;
13    relating to petitions; orders; venue; amending K.S.A. 1996 Supp. [59-
14    2946,] 59-2957, 59-2958, 59-2966, 59-2967, 59-2969 and[,] 59-2971
15    [and 59-2972] and repealing the existing sections[; also repealing
16    section 1 of chapter 172 of the 1996 Session Laws of Kansas,
17    section 2 of chapter 172 of the 1996 Session Laws of Kansas,
18    section 3 of chapter 172 of the 1996 Session Laws of Kansas,
19    section 4 of chapter 172 of the 1996 Session Laws of Kansas,
20    section 5 of chapter 172 of the 1996 Session Laws of Kansas,
21    section 6 of chapter 172 of the 1996 Session Laws of Kansas and
22    section 7 of chapter 172 of the 1996 Session Laws of Kansas].
23
24  Be it enacted by the Legislature of the State of Kansas:
25    [New Section 1.  The attorney general shall have concurrent
26  authority with any county or district attorney to file a petition pur-
27  suant to K.S.A. 1996 Supp. 59-2957, and amendments thereto and
28  to prepare all necessary papers, to appear at any hearing and to
29  present such evidence as the attorney general determines to be of
30  aid to the court in determining the issues before the court in any
31  case wherein it is alleged that a person is or continues to be a
32  mentally ill person subject to involuntary commitment for care and
33  treatment, as defined in subsection (f)(1)(B) of K.S.A. 1996 Supp.
34  59-2946, and amendments thereto. The provisions of this section
35  shall be part of and supplemental to the care and treatment act
36  for mentally ill persons. The provisions of this section shall be ef-
37  fective on the date of the issuance by the United States supreme
38  court of an opinion in the case of State of Kansas vs. LeRoy Hendricks,
39  case no. 95-1649, which holds the sexually violent predator act,
40  K.S.A. 59-29a01 et seq., unconstitutional and shall expire on June
41  30, 1998.
42    [New Sec. 2.  In each proceeding in which it is alleged that a
43  person is or continues to be a mentally ill person subject to invol-
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 1  untary commitment for care and treatment, as defined in subsec-
 2  tion (f)(1)(B) of K.S.A. 1996 Supp. 59-2946, and amendments
 3  thereto, the court shall allow and order paid a reasonable fee and
 4  expenses for an attorney appointed by the court to represent the
 5  person against whom the petition was filed, which fee and expenses
 6  shall be taxed to the estate of the patient, to those bound by law
 7  to support such patient or to the state of Kansas, except if a pro-
 8  posed patient is found not to be a mentally ill person subject to
 9  involuntary commitment under this act, the costs shall not be as-
10  sessed against such patient's estate. Any fee or expenses taxes to
11  the state of Kansas shall be considered a special claim against the
12  state and considered in like manner by the legislature at its next
13  session. The provisions of this section shall be part of and supple-
14  mental to the care and treatment act for mentally ill persons. The
15  provisions of this section shall be effective on the date of the is-
16  suance by the United States supreme court of an opinion in the
17  case of State of Kansas vs. LeRoy Hendricks, case no. 95-1649, which
18  holds the sexually violent predator act, K.S.A. 59-29a01 et seq., un-
19  constitutional and shall expire on June 30, 1998.
20    [New Sec. 3.  Upon the provisions of subsections (e)(2), (f)(1)(B)
21  and (p) of K.S.A. 59-2946 and 59-2972 and sections 1 and 2 of this
22  act taking effect, the attorney general shall give notice of such fact
23  by publishing such notice in the Kansas register, but such notice
24  requirement shall not be necessary for this act to take effect and
25  be in force.
26    [Sec. 4.  K.S.A. 1996 Supp. 59-2946 is hereby amended to read
27  as follows: 59-2946. When used in the care and treatment act for
28  mentally ill persons:
29    [(a)  ``Discharge'' means the final and complete release from
30  treatment, by either the head of a treatment facility acting pur-
31  suant to K.S.A. 1996 Supp. 59-2950 and amendments thereto or by
32  an order of a court issued pursuant to K.S.A. 1996 Supp. 59-2973
33  and amendments thereto.
34    [(b)  ``Head of a treatment facility'' means the administrative
35  director of a treatment facility or such person's designee.
36    [(c)  ``Law enforcement officer'' shall have the meaning as-
37  cribed to it in K.S.A. 22-2202, and amendments thereto.
38    [(d) (1)  ``Mental health center'' means any community mental
39  health center organized pursuant to the provisions of K.S.A. 19-
40  4001 through 19-4015 and amendments thereto, or mental health
41  clinic organized pursuant to the provisions of K.S.A. 65-211
42  through 65-215 and amendments thereto, or a mental health clinic
43  organized as a not-for-profit or a for-profit corporation pursuant
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 1  to K.S.A. 17-1701 through 17-1775 and amendments thereto or
 2  K.S.A. 17-6001 through 17-6010 and amendments thereto, and li-
 3  censed in accordance with the provisions of K.S.A. 75-3307b and
 4  amendments thereto.
 5    [(2)  ``Participating mental health center'' means a mental
 6  health center which has entered into a contract with the secretary
 7  of social and rehabilitation services pursuant to the provisions of
 8  K.S.A. 39-1601 through 39-1612 and amendments thereto.
 9    [(e)  ``Mentally ill person'' means any person who is suffering
10  from a:
11    [(1)  Mental disorder which is manifested by a clinically signif-
12  icant behavioral or psychological syndrome or pattern and asso-
13  ciated with either a painful symptom or an impairment in one or
14  more important areas of functioning, and involving substantial be-
15  havioral, psychological or biological dysfunction, to the extent that
16  the person is in need of treatment; or
17    [(2)  mental condition, whether congenital or acquired, which affects
18  the person's emotional or volitional capacity predisposing that person to
19  commit sexually violent offenses. The provisions of this subsection (e)(2)
20  shall be effective on the date of the issuance by the United States supreme
21  court of an opinion in the case of State of Kansas vs. LeRoy Hendricks,
22  case no. 95-1649, which holds the sexually violent predator act, K.S.A.
23  59-29a01 et seq., unconstitutional and shall expire on June 30, 1998.
24    [(f) (1)  ``Mentally ill person subject to involuntary commitment
25  for care and treatment'' means:
26    [(A)  A mentally ill person, as defined in subsection (e)(1), who
27  also lacks capacity to make an informed decision concerning treat-
28  ment, is likely to cause harm to self or others, and whose diagnosis
29  is not solely one of the following mental disorders: Alcohol or
30  chemical substance abuse; antisocial personality disorder; mental
31  retardation; organic personality syndrome; or an organic mental
32  disorder; or
33    [(B)  a mentally ill person, as defined in subsection (e)(2) who also has
34  committed an act that would constitute a sexually violent offense and
35  presents a continuing threat of harm to self or others. The provisions of
36  this subsection (f)(1)(B) shall be effective on the date of the issuance by
37  the United States supreme court of an opinion in the case of State of
38  Kansas vs. LeRoy Hendricks, case no. 95-1649, which holds the sexually
39  violent predator act, K.S.A. 59-29a01 et seq., unconstitutional and shall
40  expire on June 30, 1998.
41    [(2)  ``Lacks capacity to make an informed decision concerning
42  treatment'' means that the person, by reason of the person's men-
43  tal disorder, is unable, despite conscientious efforts at explanation,
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 1  to understand basically the nature and effects of hospitalization or
 2  treatment or is unable to engage in a rational decision-making
 3  process regarding hospitalization or treatment, as evidenced by an
 4  inability to weigh the possible risks and benefits.
 5    [(3)  ``Likely to cause harm to self or others'' means that the
 6  person, by reason of the person's mental disorder: (a) Is likely, in
 7  the reasonably foreseeable future, to cause substantial physical in-
 8  jury or physical abuse to self or others or substantial damage to
 9  another's property, as evidenced by behavior threatening, at-
10  tempting or causing such injury, abuse or damage; except that if
11  the harm threatened, attempted or caused is only harm to the
12  property of another, the harm must be of such a value and extent
13  that the state's interest in protecting the property from such harm
14  outweighs the person's interest in personal liberty; or (b) is sub-
15  stantially unable, except for reason of indigency, to provide for any
16  of the person's basic needs, such as food, clothing, shelter, health
17  or safety, causing a substantial deterioration of the person's ability
18  to function on the person's own.
19    [No person who is being treated by prayer in the practice of the
20  religion of any church which teaches reliance on spiritual means
21  alone through prayer for healing shall be determined to be a men-
22  tally ill person subject to involuntary commitment for care and
23  treatment under this act unless substantial evidence is produced
24  upon which the district court finds that the proposed patient is
25  likely in the reasonably foreseeable future to cause substantial
26  physical injury or physical abuse to self or others or substantial
27  damage to another's property, as evidenced by behavior threat-
28  ening, attempting or causing such injury, abuse or damage; except
29  that if the harm threatened, attempted or caused is only harm to
30  the property of another, the harm must be of such a value and
31  extent that the state's interest in protecting the property from such
32  harm outweighs the person's interest in personal liberty.
33    [(g)  ``Patient'' means a person who is a voluntary patient, a pro-
34  posed patient or an involuntary patient.
35    [(1)  ``Voluntary patient'' means a person who is receiving treat-
36  ment at a treatment facility pursuant to K.S.A. 1996 Supp. 59-2949
37  and amendments thereto.
38    [(2)  ``Proposed patient'' means a person for whom a petition
39  pursuant to K.S.A. 1996 Supp. 59-2952 or K.S.A. 1996 Supp. 59-
40  2957 and amendments thereto has been filed.
41    [(3)  ``Involuntary patient'' means a person who is receiving
42  treatment under order of a court or a person admitted and de-
43  tained by a treatment facility pursuant to an application filed pur-
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 1  suant to subsection (b) or (c) of K.S.A. 1996 Supp. 59-2954 and
 2  amendments thereto.
 3    [(h)  ``Physician'' means a person licensed to practice medicine
 4  and surgery as provided for in the Kansas healing arts act or a
 5  person who is employed by a state psychiatric hospital or by an
 6  agency of the United States and who is authorized by law to prac-
 7  tice medicine and surgery within that hospital or agency.
 8    [(i)  ``Psychologist'' means a licensed psychologist, as defined by
 9  K.S.A. 74-5302 and amendments thereto.
10    [(j)  ``Qualified mental health professional'' means a physician
11  or psychologist who is employed by a participating mental health
12  center or who is providing services as a physician or psychologist
13  under a contract with a participating mental health center, or a
14  registered masters level psychologist or a licensed specialist social
15  worker or a licensed master social worker or a registered nurse
16  who has a specialty in psychiatric nursing, who is employed by a
17  participating mental health center and who is acting under the
18  direction of a physician or psychologist who is employed by, or
19  under contract with, a participating mental health center.
20    [(1)  ``Direction'' means monitoring and oversight including
21  regular, periodic evaluation of services.
22    [(2)  ``Licensed master social worker'' means a person licensed
23  as a master social worker by the behavioral sciences regulatory
24  board under K.S.A. 65-6301 through 65-6318 and amendments
25  thereto.
26    [(3)  ``Licensed specialist social worker'' means a person li-
27  censed in a social work practice specialty by the behavioral sci-
28  ences regulatory board under K.S.A. 65-6301 through 65-6318 and
29  amendments thereto.
30    [(4) ``Registered masters level psychologist'' means a person
31  registered as a registered masters level psychologist by the behav-
32  ioral sciences regulatory board under K.S.A. 74-5361 through 74-
33  5373 and amendments thereto.
34    [(5) ``Registered nurse'' means a person licensed as a registered
35  professional nurse by the board of nursing under K.S.A. 65-1113
36  through 65-1164 and amendments thereto.
37    [(k)  ``Secretary'' means the secretary of social and rehabilita-
38  tion services.
39    [(l)  ``State psychiatric hospital'' means Larned state hospital,
40  Osawatomie state hospital, Rainbow mental health facility or To-
41  peka state hospital.
42    [(m)  ``Treatment'' means any service intended to promote the
43  mental health of the patient and rendered by a qualified profes-
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 1  sional, licensed or certified by the state to provide such service as
 2  an independent practitioner or under the supervision of such
 3  practitioner.
 4    [(n)  ``Treatment facility'' means any mental health center or
 5  clinic, psychiatric unit of a medical care facility, state psychiatric
 6  hospital, psychologist, physician or other institution or person au-
 7  thorized or licensed by law to provide either inpatient or outpa-
 8  tient treatment to any patient.
 9    [(o)  The terms defined in K.S.A. 59-3002 and amendments
10  thereto shall have the meanings provided by that section.
11    [(p)  ``Sexually violent offense'' means:
12    [(1)  Rape, K.S.A. 21-3502 and amendments thereto;
13    [(2)  indecent liberties with a child, K.S.A. 21-3503 and amendments
14  thereto;
15    [(3)  aggravated indecent liberties with a child, K.S.A. 21-3504 and
16  amendments thereto;
17    [(4)  criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
18  and amendments thereto;
19    [(5)  aggravated criminal sodomy, K.S.A. 21-3506 and amendments
20  thereto;
21    [(6)  indecent solicitation of a child, K.S.A. 21-3510 and amendments
22  thereto;
23    [(7)  aggravated indecent solicitation of a child, K.S.A. 21-3511 and
24  amendments thereto;
25    [(8)  sexual exploitation of a child, K.S.A. 21-3516 and amendments
26  thereto;
27    [(9)  aggravated sexual battery, K.S.A. 3518 and amendments thereto;
28    [(10)  any conviction for a felony offense in effect at any time prior to
29  the effective date of this act, that is comparable to a sexually violent offense
30  as defined in subparagraphs (1) through (9), or any federal or other state
31  conviction for a felony offense that under the laws of this state would be
32  a sexually violent offense as defined in this section.
33    [(11)  an attempt, conspiracy or criminal solicitation, as defined in
34  K.S.A. 21-3301, 21-3302, 21-3303 and amendments thereto, of a sexually
35  violent offense as defined in this section; or
36    [(12)  any act which at the time of sentencing for the offense has been
37  determined beyond a reasonable doubt to have been sexually motivated.
38  As used in this subparagraph, ``sexually motivated'' means that one of the
39  purposes for which the defendant committed the crime was for the pur-
40  pose of the defendant's sexual gratification.
41    [The provisions of this subsection (p) shall be effective on the date of
42  the issuance by the United States supreme court of an opinion in the case
43  of State of Kansas vs. LeRoy Hendricks, case no. 95-1649, which holds
SB 68--Am. by HCW
                                     

 1  the sexually violent predator act, K.S.A. 59-29a01 et seq., unconstitutional
 2  and shall expire on June 30, 1998.]
 3    Section 1. [5.]  K.S.A. 1996 Supp. 59-2957 is hereby amended to read
 4  as follows: 59-2957. (a) A verified petition to determine whether or not
 5  a person is a mentally ill person subject to involuntary commitment for
 6  care and treatment under this act may be filed in the district court of the
 7  county wherein that person resides or wherein such person may be found.
 8    (b)  The petition shall state:
 9    (1)  The petitioner's belief that the named person is a mentally ill
10  person subject to involuntary commitment and the facts upon which this
11  belief is based;
12    (2)  to the extent known, the name, age, present whereabouts and
13  permanent address of the person named as possibly a mentally ill person
14  subject to involuntary commitment; and if not known, any information
15  the petitioner might have about this person and where the person resides;
16    (3)  to the extent known, the name and address of the person's spouse
17  or nearest relative or relatives, or legal guardian, or if not known, any
18  information the petitioner might have about a spouse, relative or relatives
19  or legal guardian and where they might be found;
20    (4)  to the extent known, the name and address of the person's legal
21  counsel, or if not known, any information the petitioner might have about
22  this person's legal counsel;
23    (5)  to the extent known, whether or not this person is able to pay for
24  medical services, or if not known, any information the petitioner might
25  have about the person's financial circumstances or indigency;
26    (6)  to the extent known, the name and address of any person who
27  has custody of the person, and any known pending criminal charge or
28  charges or of any arrest warrant or warrants outstanding or, if there are
29  none, that fact or if not known, any information the petitioner might have
30  about any current criminal justice system involvement with the person;
31  and
32    (7)  the name or names and address or addresses of any witness or
33  witnesses the petitioner believes has knowledge of facts relevant to the
34  issue being brought before the court.
35    (c)  The petition shall be accompanied by:
36    (1)  A signed certificate from a physician, licensed psychologist, or
37  qualified mental health professional designated by the head of the treat-
38  ment facility a participating mental health center, stating that such
39  professional has personally examined the person and any available records
40  and has found that the person, in such professional's opinion, is likely to
41  be a mentally ill person subject to involuntary commitment for care and
42  treatment under this act, unless the court allows the petition to be ac-
43  companied by a verified statement by the petitioner that the petitioner
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 1  had attempted to have the person seen by a physician, licensed psychol-
 2  ogist or such qualified mental health professional, but that the person
 3  failed to cooperate to such an extent that the examination was impossible
 4  to conduct;
 5    (2)  if applicable because immediate admission to a state psychiatric
 6  hospital is sought, the necessary statement from a qualified mental health
 7  professional authorizing such admission; and
 8    (3)  if applicable, a copy of any notice given pursuant to K.S.A. 1996
 9  Supp. 59-2951 and amendments thereto in which the named person has
10  sought discharge from a treatment facility into which they had previously
11  entered voluntarily, or a statement from the treating physician or licensed
12  psychologist that the person is a voluntary patient but is refusing reason-
13  able treatment efforts, and including a description of the treatment efforts
14  being refused.
15    (b)(d)  The petition may include a request that an ex parte emergency
16  custody order be issued pursuant to K.S.A. 1996 Supp. 59-2958 and
17  amendments thereto. If such request is made the petition shall also in-
18  clude:
19    (1)  A brief statement explaining why the person should be immedi-
20  ately detained or continue to be detained;
21    (2)  the place where the petitioner requests that the person be de-
22  tained or continue to be detained;
23    (3)  if applicable, because detention is requested in a treatment facility
24  other than a state psychiatric hospital, a statement that the facility is will-
25  ing to accept and detain such person; and
26    (4)  if applicable, because admission to a state psychiatric hospital is
27  sought, the necessary statement from a qualified mental health profes-
28  sional authorizing admission and emergency care and treatment.
29    (c)(e)  The petition may include a request that a temporary custody
30  order be issued pursuant to K.S.A. 1996 Supp. 59-2959 and amendments
31  thereto.
32    Sec. 2. [6.]  K.S.A. 1996 Supp. 59-2958 is hereby amended to read
33  as follows: 59-2958. (a) At the time that the petition for the determination
34  of mental illness of a person subject to involuntary commitment for care
35  and treatment is filed, or any time thereafter prior to the trial upon the
36  petition as provided for in K.S.A. 1996 Supp. 59-2965 and amendments
37  thereto, the petitioner may request in writing that the district court issue
38  an ex parte emergency order including either or both of the following:
39    (1) An order directing any law enforcement officer to take the person
40  named in the order into custody and transport the person to a designated
41  treatment facility or other suitable place willing to receive and detain the
42  person; (2) an order authorizing any named treatment facility or other
43  place to detain or continue to detain the person until the further order
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 1  of the court or until the ex parte emergency custody order shall expire.
 2    (b)  No ex parte emergency custody order shall provide for the de-
 3  tention of any person at a state psychiatric hospital unless a written state-
 4  ment from a qualified mental health professional authorizing such ad-
 5  mission and detention at a state psychiatric hospital has been filed with
 6  the court.
 7    (c)  No ex parte emergency custody order shall provide for the deten-
 8  tion of any person in a nonmedical facility used for the detention of per-
 9  sons charged with or convicted of a crime.
10    (d)  If no other suitable facility at which such person may be detained
11  is willing to accept the person, then the participating mental health center
12  for that area shall provide a suitable place to detain the person until the
13  further order of the court or until the ex parte emergency custody order
14  shall expire.
15    (e)  An ex parte emergency custody order issued under this section
16  shall expire at 5:00 p.m. of the second day the district court is open for
17  the transaction of business after the date of its issuance, which expiration
18  date shall be stated in the order.
19    (f)  The district court shall not issue successive ex parte emergency
20  custody orders.
21    (g)  In lieu of issuing an ex parte emergency custody order, the court
22  may allow the person with respect to whom the request was made to
23  remain at liberty, subject to such conditions as the court may impose.
24    Sec. 3. [7.]  K.S.A. 1996 Supp. 59-2966 is hereby amended to read
25  as follows: 59-2966. (a) Upon the completion of the trial, if the court or
26  jury finds by clear and convincing evidence that the proposed patient is
27  a mentally ill person subject to involuntary commitment for care and
28  treatment under this act, the court shall order treatment for such person
29  at a treatment facility, except that the court shall not order treatment at
30  a state psychiatric hospital, unless a written statement from a qualified
31  mental health professional authorizing such treatment at a state psychi-
32  atric hospital has been filed with the court. An order for treatment in a
33  treatment facility other than a state psychiatric hospital shall be condi-
34  tioned upon the consent of the head of that treatment facility to accepting
35  the patient. In the event no other appropriate treatment facility has
36  agreed to provide treatment for the patient, and no qualified mental
37  health professional has authorized treatment at a state psychiatric hos-
38  pital, the participating mental health center for the county in which the
39  patient resides shall be given responsibility for providing or securing treat-
40  ment for the patient or if no county of residence can be determined for
41  the patient, then the participating mental health center for the county in
42  which the patient was taken into custody or in which the petition was
43  filed shall be given responsibility for providing or securing treatment for
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 1  the patient.
 2    (b)  Within any order for treatment the court shall specify the period
 3  of treatment as provided for in K.S.A. 1996 Supp. 59-2969 and amend-
 4  ments thereto. A copy of the order for treatment shall be provided to the
 5  head of the treatment facility.
 6    (c)  When the court orders treatment, it shall retain jurisdiction to
 7  modify, change or terminate such order, unless venue has been changed
 8  pursuant to K.S.A. 1996 Supp. 59-2971 and amendments thereto and then
 9  the receiving court shall have continuing jurisdiction.
10    (d)  If the court finds from the evidence that the proposed patient has
11  not been shown to be a mentally ill person subject to involuntary com-
12  mitment for care and treatment under this act the court shall release the
13  person and terminate the proceedings.
14    Sec. 4. [8.]  K.S.A. 1996 Supp. 59-2967 is hereby amended to read
15  as follows: 59-2967. (a) An order for outpatient treatment may be entered
16  by the court at any time in lieu of any type of order which would have
17  required inpatient care and treatment if the court finds that the patient
18  is likely to comply with an outpatient treatment order and that the patient
19  will not likely be a danger to the community or be likely to cause harm
20  to self or others while subject to an outpatient treatment order.
21    (b)  No order for outpatient treatment shall be entered unless the
22  head of the outpatient treatment facility has consented to treat the patient
23  on an outpatient basis under the terms and conditions set forth by the
24  court, except that no order for outpatient treatment shall be refused by
25  a participating mental health center.
26    (c)  If outpatient treatment is ordered, the order may state specific
27  conditions to be followed by the patient, but shall include the general
28  condition that the patient is required to comply with all directives and
29  treatment as required by the head of the outpatient treatment facility or
30  the head's designee. The court may also make such orders as are appro-
31  priate to provide for monitoring the patient's progress and compliance
32  with outpatient treatment. Within any outpatient order for treatment the
33  court shall specify the period of treatment as provided for in K.S.A. 1996
34  Supp. 59-2969 and amendments thereto.
35    (d)  The court shall retain jurisdiction to modify or revoke the order
36  for outpatient treatment at any time on its own motion, on the motion of
37  any counsel of record or upon notice from the treatment facility of any
38  need for new conditions in the order for outpatient treatment or of ma-
39  terial noncompliance by the patient with the order for outpatient treat-
40  ment. However, if the venue of the matter has been transferred to an-
41  other court, then the court having venue of the matter shall have such
42  jurisdiction to modify or revoke the outpatient treatment order. Revo-
43  cation or modification of an order for outpatient treatment may be made
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 1  ex parte by order of the court in accordance with the provisions of sub-
 2  sections (e) or (f).
 3    (e)  The treatment facility shall immediately report to the court any
 4  material noncompliance by the patient with the outpatient treatment or-
 5  der. Such notice may be verbal or by telephone but shall be followed by
 6  a verified written or facsimile notice delivered sent to the court, to coun-
 7  sel for all parties and, as appropriate, to the head of the inpatient treat-
 8  ment facility designated to receive the patient, by not later than 5:00 p.m.
 9  of the first day the district court is open for the transaction of business
10  after the verbal or telephonic communication was made to the court.
11  Upon receipt of verbal, telephone, or verified written or facsimile notice
12  of material noncompliance, the court may enter an ex parte emergency
13  custody order providing for the immediate detention of the patient in a
14  designated inpatient treatment facility except that the court shall not or-
15  der the detention of the patient at a state psychiatric hospital, unless a
16  written statement from a qualified mental health professional authorizing
17  such detention at a state psychiatric hospital has been filed with the court.
18  Any ex parte emergency custody order issued by the court under this
19  subsection shall expire at 5:00 p.m. of the second day the district court is
20  open for the transaction of business after the patient is taken into custody.
21  The court shall not enter successive ex parte emergency custody orders.
22    (f) (1)  Upon the entry of taking of a patient into custody pursuant
23  to an ex parte emergency custody order revoking a previously issued order
24  for outpatient treatment and ordering the patient to involuntary inpatient
25  care the court shall set the matter for hearing not later than the close of
26  business on the second day the court is open for business after the filing
27  of the order the patient is taken into custody. Notice of the hearing shall
28  be given to the patient, the patient's attorney, the patient's legal guardian,
29  the petitioner or the county or district attorney as appropriate, the head
30  of the outpatient treatment facility and the head of the inpatient treat-
31  ment facility, similarly as provided for in K.S.A. 1996 Supp. 59-2963 and
32  amendments thereto.
33    (2)  Upon the entry of an ex parte order modifying a previously issued
34  order for outpatient treatment, but allowing the patient to remain at lib-
35  erty, a copy of the order shall be served upon the patient, the patient's
36  attorney, the county or district attorney and the head of the outpatient
37  treatment facility similarly as provided for in K.S.A. 1996 Supp. 59-2963
38  and amendments thereto. Thereafter, any party to the matter, including
39  the petitioner, the county or district attorney or the patient, may request
40  a hearing on the matter if the request is filed within 5 days from the date
41  of service of the ex parte order upon the patient. The court may also
42  order such a hearing on its own motion within 5 days from the date of
43  service of the notice. If no request or order for hearing is filed within the
SB 68--Am. by HCW
                                     

 1  5-day period, the ex parte order and the terms and conditions set out in
 2  the ex parte order shall become the final order of the court substituting
 3  for any previously entered order for outpatient treatment. If a hearing is
 4  requested, a formal written request for revocation or modification of the
 5  outpatient treatment order shall be filed by the county or district attorney
 6  or the petitioner and a hearing shall be held thereon within 5 days after
 7  the filing of the request.
 8    (g)  The hearing held pursuant to subsection (f) shall be conducted in
 9  the same manner as hearings provided for in K.S.A. 1996 Supp. 59-2959
10  and amendments thereto. Upon the completion of the hearing, if the
11  court finds by clear and convincing evidence that the patient violated any
12  condition of the outpatient treatment order, the court may enter an order
13  for inpatient treatment, except that the court shall not order treatment
14  at a state psychiatric hospital unless a written statement from a qualified
15  mental health professional authorizing such treatment at a state psychi-
16  atric hospital has been filed with the court, or may modify the order for
17  outpatient treatment with different terms and conditions in accordance
18  with this section.
19    (h)  The outpatient treatment facility shall comply with the provisions
20  of K.S.A. 1996 Supp. 59-2969 and amendments thereto concerning the
21  filing of written reports for each 90- or 180-day period during the time
22  the outpatient treatment order is in effect and the court shall receive and
23  process such reports in the same manner as reports received from an
24  inpatient treatment facility.
25    Sec. 5. [9.]  K.S.A. 1996 Supp. 59-2969 is hereby amended to read
26  as follows: 59-2969. (a) At least 14 days prior to the end of each period
27  of treatment, as set out in the court order for such treatment, the head
28  of the treatment facility furnishing treatment to the patient shall submit
29  to the court a written report summarizing the treatment provided and
30  the findings and recommendations of the treatment facility concerning
31  the need for further treatment for the patient. Upon the receipt of this
32  written report, the court shall notify the patient's attorney of record that
33  this written report has been received. If there is no attorney of record for
34  the patient, the court shall appoint an attorney and notify such attorney
35  that the written report has been filed.
36    (b)  When the attorney for the patient has received notice that the
37  treatment facility has provided the district court with its written report,
38  the attorney shall consult with the patient to determine whether the pa-
39  tient desires a hearing. If the patient desires a hearing, the attorney shall
40  file a written request for a hearing with the district court, which request
41  shall be filed not later than the end of the 90-day or 180-day period of
42  treatment as provided for herein. If the patient does not desire a hearing,
43  the patient's attorney shall file with the court a written statement that the
SB 68--Am. by HCW
                                     

 1  attorney has consulted with the patient; the manner in which the attorney
 2  has consulted with the patient; that the attorney has fully explained to
 3  the patient the patient's right to a hearing as set out in this section and
 4  that if the patient does not request such a hearing that further treatment
 5  will likely be ordered, but that having been so advised the patient does
 6  not desire a hearing. Thereupon, the court may renew its order for treat-
 7  ment and may specify the next period of treatment. Notice thereof A
 8  copy of the court's order shall be given to the patient, the attorney for
 9  the patient, the patient's legal guardian, the petitioner or the county or
10  district attorney, as appropriate, and to the head of the treatment facility
11  treating the patient as the court shall specify.
12    (c)  Upon receiving a written request for a hearing, the district court
13  shall set the matter for hearing and notice of such hearing shall be given
14  similarly as provided for in K.S.A. 1996 Supp. 59-2963 and amendments
15  thereto. Notice shall also be given to the head of the treatment facility
16  treating the patient. The hearing shall be held as soon as reasonably prac-
17  tical, but in no event more than 10 days following the filing of the written
18  request for a hearing. The patient shall remain in treatment during the
19  pendency of any such hearing, unless discharged by the head of the treat-
20  ment facility pursuant to K.S.A. 1996 Supp. 59-2973 and amendments
21  thereto.
22    (d)  The district court having jurisdiction of any case may, on its own
23  motion or upon written request of any interested party, including the
24  head of the treatment facility where a patient is being treated, hold a
25  hearing to review the patient's status earlier than at the times set out in
26  subsection (b) above, if the court determines it is in the best interests of
27  the patient to have an earlier hearing, however, the patient shall not be
28  entitled to have more than one hearing within the first 90 days after the
29  date of the hearing at which the original treatment order was entered;
30  one hearing within the second 90 days after the date of the hearing at
31  which the original treatment order was entered and one hearing within
32  each 180 days thereafter.
33    (e)  The hearing shall be conducted in the same manner as hearings
34  provided for in K.S.A. 1996 Supp. 59-2965 and amendments thereto,
35  except that the hearing shall be to the court and the patient shall not have
36  the right to demand a jury. At the hearing it shall be the petitioner's or
37  county or district attorney's or treatment facility's burden to show that
38  the patient remains a mentally ill person subject to involuntary commit-
39  ment for care and treatment under this act.
40    (f)  Upon completion of the hearing, if the court finds by clear and
41  convincing evidence that the patient continues to be a mentally ill person
42  subject to involuntary commitment for care and treatment under this act,
43  the court shall order continued treatment at an inpatient treatment facility
SB 68--Am. by HCW
                                     

 1  as provided for in K.S.A. 1996 Supp. 59-2966 and amendments thereto,
 2  or at an outpatient treatment facility if the court determines that outpa-
 3  tient treatment is appropriate under K.S.A. 1996 Supp. 59-2967 and
 4  amendments thereto, and a copy of the court's order shall be provided
 5  to the head of the treatment facility. If the court finds that it has not been
 6  shown by clear and convincing evidence that the patient continues to be
 7  a mentally ill person subject to involuntary commitment for care and
 8  treatment under this act, it shall release the patient. A copy of the court's
 9  order of release shall be provided to the patient, the patient's attorney,
10  the patient's legal guardian or other person known to be interested in the
11  care and welfare of a minor patient, and to the head of the treatment
12  facility at which the patient had been receiving treatment.
13    Sec. 6. [10.]  K.S.A. 1996 Supp. 59-2971 is hereby amended to read
14  as follows: 59-2971. (a) At any time after the petition provided for in
15  K.S.A. 1996 Supp. 59-2957 and amendments thereto has been filed, up
16  until venue may be transferred in accordance with this section.
17    (1)  Prior to trial required by K.S.A. 1996 Supp. 59-2965 and amend-
18  ments thereto. Before the expiration of two full working days following
19  the probable cause hearing held pursuant to K.S.A. 1996 Supp. 59-2959
20  or 59-2962 and amendments thereto, the district court then with juris-
21  diction, on its own motion or upon the written request of any person,
22  may transfer the venue of the case to the district court for of the county
23  where the patient is being detained, evaluated or treated in a treatment
24  facility under the authority of an order issued pursuant to K.S.A. 1996
25  Supp. 59-2958, 59-2959 or 59-2964 and amendments thereto, issued prior
26  to the trial required by K.S.A. 1996 Supp. 59-2965 and amendments
27  thereto. Thereafter the district court may on its own motion or upon the
28  written request of any person transfer venue to another district court only
29  for good cause shown.
30    When any an order changing venue is issued, the district court issuing
31  such the order shall immediately send to the district court to which venue
32  is changed a facsimile of all pleadings and orders in the case. The district
33  court shall also immediately send a facsimile of the order transferring
34  venue to the treatment facility where the patient is being detained, eval-
35  uated or treated. The district court issuing such order, if not in the county
36  of residence of the proposed patient, shall transmit to the district court
37  in the county of residence of the proposed patient a statement of any
38  court costs incurred by the county of the district court issuing such order
39  and a certified copy of all pleadings and orders in the case.
40    (2)  After trial required by K.S.A. 1996 Supp. 59-2965 and amend-
41  ments thereto, the district court may on its own motion or upon the writ-
42  ten request of any person transfer venue to another district court for good
43  cause shown. When an order changing venue is issued, the district court
SB 68--Am. by HCW
                                     

 1  issuing the order shall immediately send to the district court to which
 2  venue is changed a facsimile of the petition for determination of mental
 3  illness subject to involuntary commitment for care and treatment, the most
 4  recent notice of hearing issued by the court, the order changing venue,
 5  the current order of treatment, the most recent written report summariz-
 6  ing treatment and any order allowing withdrawal of the patient's attor-
 7  ney. The transferring district court shall also immediately send a facsimile
 8  of the order transferring venue to the treatment facility where the patient
 9  is being detained, evaluated or treated. No later than 5:00 p.m. of the
10  second full day the district court transferring venue is open for business
11  following the issuance of the order transferring venue, the district court
12  transferring venue shall send to the receiving district court the entire file
13  of the case by restricted mail.
14    (b)  The district court issuing an order transferring venue, if not in
15  the county of residence of the proposed patient, shall transmit to the dis-
16  trict court in the county of residence of the proposed patient a statement
17  of any court costs incurred by the county of the district court issuing the
18  order and, if the county of residence is not the receiving county, a certified
19  copy of all pleadings and orders in the case.
20    (c)  Any district court to which venue is transferred shall proceed in
21  the case as if the petition had been originally filed therein and shall cause
22  notice of the change of venue to be given to the persons named in and
23  in the same manner as provided for in K.S.A. 1996 Supp. 59-2963 and
24  amendments thereto. In the event that notice of a change of location of
25  a hearing due to a change of venue cannot be served at least 48 hours
26  prior to any hearing previously scheduled by the transferring court or
27  because of scheduling conflicts the hearing can not be held by the re-
28  ceiving court on the previously scheduled date, then the receiving court
29  shall continue the hearing for up to seven full working days to allow
30  adequate time for notice to be given and the hearing held.
31    (d)  Any district court to which venue is transferred, if not in the
32  county of residence of the patient, shall transmit to the district court in
33  the county of residence of the patient a statement of any court costs in-
34  curred and a certified copy of all pleadings and orders entered in the case
35  to the district court in the county of the residence of the patient after
36  transfer.
37    [Sec. 11.  K.S.A. 1996 Supp. 59-2972 is hereby amended to
38  read as follows: 59-2972. (a) The Except as provided in subsection (c),
39  the secretary of social and rehabilitation services or the secretary's
40  designee may transfer any patient from any state psychiatric hos-
41  pital under the secretary's control to any other state psychiatric
42  hospital whenever the secretary or the secretary's designee con-
43  siders it to be in the best interests of the patient. Except in the
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 1  case of an emergency, the patient's spouse or nearest relative or
 2  legal guardian, if one has been appointed, shall be notified of the
 3  transfer, and notice shall be sent to the committing court not less
 4  than 14 days before the proposed transfer. The notice shall name
 5  the hospital to which the patient is proposed to be transferred to
 6  and state that, upon request of the spouse or nearest relative or
 7  legal guardian, an opportunity for a hearing on the proposed trans-
 8  fer will be provided by the secretary of social and rehabilitation
 9  services prior to such transfer.
10    [(b)  The Except as provided in subsection (c), the secretary of social
11  and rehabilitation services or the designee of the secretary may
12  transfer any involuntary patient from any state psychiatric hospital
13  to any state institution for the mentally retarded whenever the
14  secretary of social and rehabilitation services or the designee of
15  the secretary considers it to be in the best interests of the patient.
16  Any patient transferred as provided for in this subsection shall re-
17  main subject to the same statutory provisions as were applicable
18  at the psychiatric hospital from which the patient was transferred
19  and in addition thereto shall abide by and be subject to all the
20  rules and regulations of the retardation institution to which the
21  patient has been transferred. Except in the case of an emergency,
22  the patient's spouse or nearest relative or legal guardian, if one
23  has been appointed, shall be notified of the transfer, and notice
24  shall be sent to the committing court not less than 14 days before
25  the proposed transfer. The notice shall name the institution to
26  which the patient is proposed to be transferred to and state that,
27  upon request of the spouse or nearest relative or legal guardian,
28  an opportunity for a hearing on the proposed transfer will be pro-
29  vided by the secretary of social and rehabilitation services prior to
30  such transfer. No patient shall be transferred from a state psychi-
31  atric hospital to a state institution for the mentally retarded unless
32  the superintendent of the receiving institution has found, pursuant
33  to K.S.A. 76-12b01 through 76-12b11 and amendments thereto,
34  that the patient is mentally retarded and in need of care and train-
35  ing and that placement in the institution is the least restrictive
36  alternative available. Nothing in this subsection shall prevent the
37  secretary of social and rehabilitation services or the designee of
38  the secretary from allowing a patient at a state psychiatric hospital
39  to be admitted as a voluntary resident to a state institution for the
40  mentally retarded, or from then discharging such person from the
41  state psychiatric hospital pursuant to K.S.A. 1996 Supp. 59-2973
42  and amendments thereto, as may be appropriate.
43    [(c)  At all times, any person admitted to or detained at a state psy-
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 1  chiatric hospital upon an application made pursuant to K.S.A. 1996 Supp.
 2  59-2954, and amendments thereto, or an order issued pursuant to K.S.A.
 3  1996 Supp. 59-2958, 59-2959, 59-2964, 59-2966 or 59-2969, and amend-
 4  ments thereto, and who is alleged to be or who has been determined to
 5  be a mentally ill person subject to involuntary commitment for care and
 6  treatment, as defined in subsection (f)(1)(B) of K.S.A. 1996 Supp. 59-2946,
 7  and amendments thereto, shall be kept in a separate secure facility or
 8  building and segregated at all times from any other patient alleged to be
 9  or who has been determined to be a mentally ill person subject to invol-
10  untary commitment for care and treatment, as defined in subsection
11    (f)(1)(A) of K.S.A. 1996 Supp. 59-2946, and amendments thereto. The
12  provisions of this subsection (c) shall be effective on the date of the issu-
13  ance by the United States supreme court of an opinion in the case of State
14  of Kansas vs. LeRoy Hendricks, case no. 95-1649, which holds the sexually
15  violent predator act, K.S.A. 59-29a01 et seq., unconstitutional and shall
16  expire on June 30, 1998.
17    [Sec. 12.  On the date of the issuance by the United States su-
18  preme court of an opinion in the case of State of Kansas vs. LeRoy
19  Hendricks, case no. 95-1649, which holds the sexually violent pred-
20  ator act, K.S.A. 59-29a01 et seq., unconstitutional, K.S.A. 1996
21  Supp. 59-2946 and 59-2972 and section 1 of chapter 172 of the
22  1996 Session Laws of Kansas, section 2 of chapter 172 of the 1996
23  Session Laws of Kansas, section 3 of chapter 172 of the 1996 Ses-
24  sion Laws of Kansas, section 4 of chapter 172 of the 1996 Session
25  Laws of Kansas and section 5 of chapter 172 of the 1996 Session
26  Laws of Kansas are hereby repealed.]
27    Sec. 7. [13.]  K.S.A. 1996 Supp. 59-2957, 59-2958, 59-2966, 59-2967,
28  59-2969 and 59-2971 are hereby repealed.
29    Sec. 8. [14.]  This act shall take effect and be in force from and after
30  its publication in the statute book Kansas register.