An Act amending the care and treatment act for mentally ill persons; amending section 2 of 1996 Senate Bill No. 469 and section 28 of 1996 Senate Bill No. 469 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. Section 2 of 1996 Senate Bill No. 469 is hereby amended to read as follows: Section 2. When used in the care and treatment act for mentally ill persons:

(a) ``Discharge'' means the final and complete release from treat- ment, by either the head of a treatment facility acting pursuant to section 6 of 1996 Senate Bill No. 469 and amendments thereto or by an order of a court issued pursuant to section 29 of 1996 Senate Bill No. 469 and amendments thereto.

(b) ``Head of a treatment facility'' means the administrative director of a treatment facility or such person's designee.

(c) ``Law enforcement officer'' shall have the meaning ascribed to it in K.S.A. 22-2202, and amendments thereto.

(d) (1) ``Mental health center'' means any community mental health center organized pursuant to the provisions of K.S.A. 19-4001 through 19-4015 and amendments thereto, or mental health clinic organized pur- suant to the provisions of K.S.A. 65-211 through 65-215 and amendments thereto, or a mental health clinic organized as a not-for-profit or a for- profit corporation pursuant to K.S.A. 17-1701 through 17-1775 and amendments thereto or K.S.A. 17-6001 through 17-6010 and amend- ments thereto, and licensed in accordance with the provisions of K.S.A. 75-3307b and amendments thereto.

(2) ``Participating mental health center'' means a mental health center which has entered into a contract with the secretary of social and reha- bilitation services pursuant to the provisions of K.S.A. 39-1601 through 39-1612 and amendments thereto.

(e) ``Mentally ill person'' means any person who is suffering from a: (1) Mental disorder which is manifested by a clinically significant behav- ioral or psychological syndrome or pattern and associated with either a painful symptom or an impairment in one or more important areas of functioning, and involving substantial behavioral, psychological or biolog- ical dysfunction, to the extent that the person is in need of treatment. ; or

(2) mental condition, whether congenital or acquired, which affects the person's emotional or volitional capacity predisposing that person to commit sexually violent offenses. The provisions of this subsection (e)(2) shall expire on June 30, 1997.

(f) (1) ``Mentally ill person subject to involuntary commitment for care and treatment'' means: (A) A mentally ill person, as defined in sub- section (e)(1), who also lacks capacity to make an informed decision con- cerning treatment, is likely to cause harm to self or others, and whose diagnosis is not solely one of the following mental disorders: Alcohol or chemical substance abuse; antisocial personality disorder; mental retar- dation; organic personality syndrome; or an organic mental disorder.; or (B) a mentally ill person, as defined in subsection (e)(2) who also has committed an act that would constitute a sexually violent offense and presents a continuing threat of harm to self or others. The provisions of this subsection (f)(1)(B) shall expire on June 30, 1997.

(2) ``Lacks capacity to make an informed decision concerning treat- ment'' means that the person, by reason of the person's mental disorder or condition, is unable, despite conscientious efforts at explanation, to understand basically the nature and effects of hospitalization or treatment or is unable to engage in a rational decision-making process regarding hospitalization or treatment, as evidenced by an inability to weigh the possible risks and benefits.

(3) ``Likely to cause harm to self or others'' means that the person, by reason of the person's mental disorder: (a) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another's property, as evidenced by behavior threatening, attempting or causing such injury, abuse or dam- age; except that if the harm threatened, attempted or caused is only harm to the property of another, the harm must be of such a value and extent that the state's interest in protecting the property from such harm out- weighs the person's interest in personal liberty; or (b) is substantially unable, except for reason of indigency, to provide for any of the person's basic needs, such as food, clothing, shelter, health or safety, causing a substantial deterioration of the person's ability to function on the person's own.

No person who is being treated by prayer in the practice of the religion of any church which teaches reliance on spiritual means alone through prayer for healing shall be determined to be a mentally ill person subject to involuntary commitment for care and treatment under this act unless substantial evidence is produced upon which the district court finds that the proposed patient is likely in the reasonably foreseeable future to cause substantial physical injury or physical abuse to self or others or substantial damage to another's property, as evidenced by behavior threatening, at- tempting or causing such injury, abuse or damage; except that if the harm threatened, attempted or caused is only harm to the property of another, the harm must be of such a value and extent that the state's interest in protecting the property from such harm outweighs the person's interest in personal liberty.

(g) ``Patient'' means a person who is a voluntary patient, a proposed patient or an involuntary patient.

(1) ``Voluntary patient'' means a person who is receiving treatment at a treatment facility pursuant to section 5 of 1996 Senate Bill No. 469 and amendments thereto.

(2) ``Proposed patient'' means a person for whom a petition pursuant to section 8 or section 13 of 1996 Senate Bill No. 469 and amendments thereto has been filed.

(3) ``Involuntary patient'' means a person who is receiving treatment under order of a court or a person admitted and detained by a treatment facility pursuant to an application filed pursuant to subsection (b) or (c) of section 10 of 1996 Senate Bill No. 469 and amendments thereto.

(h) ``Physician'' means a person licensed to practice medicine and surgery as provided for in the Kansas healing arts act or a person who is employed by a state psychiatric hospital or by an agency of the United States and who is authorized by law to practice medicine and surgery within that hospital or agency.

(i) ``Psychologist'' means a licensed psychologist, as defined by K.S.A. 74-5302 and amendments thereto.

(j) ``Qualified mental health professional'' means a physician or psy- chologist who is employed by a participating mental health center or who is providing services as a physician or psychologist under a contract with a participating mental health center, or a registered masters level psy- chologist or a licensed specialist social worker or a licensed master social worker or a registered nurse who has a specialty in psychiatric nursing, who is employed by a participating mental health center and who is acting under the direction of a physician or psychologist who is employed by, or under contract with, a participating mental health center.

(1) ``Direction'' means monitoring and oversight including regular, periodic evaluation of services.

(2) ``Licensed master social worker'' means a person licensed as a master social worker by the behavioral sciences regulatory board under K.S.A. 65-6301 through 65-6318 and amendments thereto.

(3) ``Licensed specialist social worker'' means a person licensed in a social work practice specialty by the behavioral sciences regulatory board under K.S.A. 65-6301 through 65-6318 and amendments thereto.

(4) ``Registered masters level psychologist'' means a person registered as a registered masters level psychologist by the behavioral sciences reg- ulatory board under K.S.A. 74-5361 through 74-5373 and amendments thereto.

(5) ``Registered nurse'' means a person licensed as a registered profes- sional nurse by the board of nursing under K.S.A. 65-1113 through 65- 1164 and amendments thereto.

(k) ``Secretary'' means the secretary of social and rehabilitation serv- ices.

(l) ``State psychiatric hospital'' means Larned state hospital, Osawa- tomie state hospital, Rainbow mental health facility or Topeka state hos- pital.

(m) ``Treatment'' means any service intended to promote the mental health of the patient and rendered by a qualified professional, licensed or certified by the state to provide such service as an independent prac- titioner or under the supervision of such practitioner.

(n) ``Treatment facility'' means any mental health center or clinic, psychiatric unit of a medical care facility, state psychiatric hospital, psy- chologist, physician or other institution or person authorized or licensed by law to provide either inpatient or outpatient treatment to any patient.

(o) The terms defined in K.S.A. 59-3002 and amendments thereto shall have the meanings provided by that section.

(p) ``Sexually violent offense'' means:

(1) Rape, K.S.A. 21-3502 and amendments thereto;

(2) indecent liberties with a child, K.S.A. 21-3503 and amendments thereto;

(3) aggravated indecent liberties with a child, K.S.A. 21-3504 and amendments thereto;

(4) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505 and amendments thereto;

(5) aggravated criminal sodomy, K.S.A. 21-3506 and amendments thereto;

(6) indecent solicitation of a child, K.S.A. 21-3510 and amendments thereto;

(7) aggravated indecent solicitation of a child, K.S.A. 21-3511 and amendments thereto;

(8) sexual exploitation of a child, K.S.A. 21-3516 and amendments thereto;

(9) aggravated sexual battery, K.S.A. 3518 and amendments thereto;

(10) any conviction for a felony offense in effect at any time prior to the effective date of this act, that is comparable to a sexually violent offense as defined in subparagraphs (1) through (9), or any federal or other state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this section;

(11) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302, 21-3303 and amendments thereto, of a sexually violent offense as defined in this section; or

(12) any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this subparagraph, ``sexually motivated'' means that one of the purposes for which the defendant committed the crime was for the pur- pose of the defendant's sexual gratification.

The provisions of this subsection (p) shall expire on June 30, 1997.

Sec. 2. Section 28 of 1996 Senate Bill No. 469 is hereby amended to read as follows: Section 28. (a) The Except as provided in subsection (c), the secretary of social and rehabilitation services or the secretary's des- ignee may transfer any patient from any state psychiatric hospital under the secretary's control to any other state psychiatric hospital whenever the secretary or the secretary's designee considers it to be in the best interests of the patient. Except in the case of an emergency, the patient's spouse or nearest relative or legal guardian, if one has been appointed, shall be notified of the transfer, and notice shall be sent to the committing court not less than 14 days before the proposed transfer. The notice shall name the hospital to which the patient is proposed to be transferred to and state that, upon request of the spouse or nearest relative or legal guardian, an opportunity for a hearing on the proposed transfer will be provided by the secretary of social and rehabilitation services prior to such transfer.

(b) The Except as provided in subsection (c), the secretary of social and rehabilitation services or the designee of the secretary may transfer any involuntary patient from any state psychiatric hospital to any state institution for the mentally retarded whenever the secretary of social and rehabilitation services or the designee of the secretary considers it to be in the best interests of the patient. Any patient transferred as provided for in this subsection shall remain subject to the same statutory provisions as were applicable at the psychiatric hospital from which the patient was transferred and in addition thereto shall abide by and be subject to all the rules and regulations of the retardation institution to which the patient has been transferred. Except in the case of an emergency, the patient's spouse or nearest relative or legal guardian, if one has been appointed, shall be notified of the transfer, and notice shall be sent to the committing court not less than 14 days before the proposed transfer. The notice shall name the institution to which the patient is proposed to be transferred to and state that, upon request of the spouse or nearest relative or legal guardian, an opportunity for a hearing on the proposed transfer will be provided by the secretary of social and rehabilitation services prior to such transfer. No patient shall be transferred from a state psychiatric hospital to a state institution for the mentally retarded unless the superintendent of the receiving institution has found, pursuant to K.S.A. 76-12b01 through 76-12b11 and amendments thereto, that the patient is mentally retarded and in need of care and training and that placement in the institution is the least restrictive alternative available. Nothing in this sub- section shall prevent the secretary of social and rehabilitation services or the designee of the secretary from allowing a patient at a state psychiatric hospital to be admitted as a voluntary resident to a state institution for the mentally retarded, or from then discharging such person from the state psychiatric hospital pursuant to section 29 of 1996 Senate Bill No. 469 and amendments thereto, as may be appropriate.

(c) At all times, any person admitted to or detained at a state psy- chiatric hospital upon an application made pursuant to section 10 of 1996 Senate Bill No. 469 and amendments thereto, or an order issued pursuant to sections 14, 15, 20, 22 or 25 of 1996 Senate Bill No. 469 and amend- ments thereto, and who is alleged to be or who has been determined to be a mentally ill person subject to involuntary commitment for care and treatment, as defined in subsection (f)(1)(B) of section 2 of 1996 Senate Bill No. 469 and amendments thereto, shall be kept in a separate secure facility or building and segregated at all times from any other patient alleged to be or who has been determined to be a mentally ill person subject to involuntary commitment for care and treatment, as defined in subsection (f)(1)(A) of section 2 of 1996 Senate Bill No. 469 and amend- ments thereto. The provisions of this subsection (c) shall expire on June 30, 1997.

Sec. 3. The attorney general shall have concurrent authority with any county or district attorney to file a petition pursuant to section 13 of 1996 Senate Bill No. 469 and amendments thereto and to prepare all necessary papers, to appear at any hearing and to present such evidence as the attorney general determines to be of aid to the court in determining the issues before the court in any case wherein it is alleged that a person is or continues to be a mentally ill person subject to involuntary commit- ment for care and treatment, as defined in subsection (f)(1)(B) of section 2 of 1996 Senate Bill No. 469 and amendments thereto. The provisions of this section shall be part of and supplemental to the care and treatment act for mentally ill persons. The provisions of this section shall expire on June 30, 1997.

Sec. 4. In each proceeding in which it is alleged that a person is or continues to be a mentally ill person subject to involuntary commitment for care and treatment, as defined in subsection (f)(1)(B) of section 2 of 1996 Senate Bill No. 469 and amendments thereto, the court shall allow and order paid a reasonable fee and expenses for an attorney appointed by the court to represent the person against whom the petition was filed, which fee and expenses shall be taxed to the estate of the patient, to those bound by law to support such patient or to the state of Kansas, except if a proposed patient is found not to be a mentally ill person subject to involuntary commitment under this act, the costs shall not be assessed against such patient's estate. Any fee or expenses taxed to the state of Kansas shall be considered a special claim against the state and considered in like manner by the legislature at its next session. The provisions of this section shall be part of and supplemental to the care and treatment act for mentally ill persons. The provisions of this section shall expire on June 30, 1997.

Sec. 5. Upon the provisions of this act taking effect, the attorney general shall give notice of such fact by publishing such notice in the Kansas register, but such notice requirement shall not be necessary for this act to take effect and be in force.

Sec. 6. Section 2 of 1996 Senate Bill No. 469 and section 28 of 1996 Senate Bill No. 469 are hereby repealed.

Sec. 7. This act shall take effect and be in force from and after its publication in the Kansas register and the issuance by the supreme court of the state of Kansas of its mandate in the case of In the Matter of the Care and Treatment of LeRoy Hendricks, case number 73,039.

Approved April 14, 1996.

Published in the Kansas Register: April 18, 1996.