SF 2050 (LSB 5010SS (7) 83)

SENATE FILE 2050

BY  RIELLY and HECKROTH

A BILL FOR

An Act relating to the emergency detention or hospitalization of a person incapacitated by a chemical substance or with a serious mental impairment, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 125.34, subsection 2, Code 2009, is amended to read as follows:
   2.  If no facility is readily available the person may be taken to an emergency medical service customarily used for incapacitated persons. The peace officer in detaining the person and in taking the person to a facility shall make every reasonable effort to protect the person’s health and safety. In detaining the person the detaining officer may take reasonable steps for self-protection. Detaining a person under section 125.91 is not an arrest and no entry or other record shall be made to indicate that the person who is detained has been arrested or charged with a crime except for an entry or other record relating to an arrest upon discharge that is permissible under section 125.91.
    Sec. 2.  Section 125.91, subsection 2, paragraphs a and b, Code Supplement 2009, are amended to read as follows:
   a.  A peace officer who has reasonable grounds to believe that the circumstances described in subsection 1 are applicable may, without a warrant, take or cause that person to be taken to the nearest available facility referred to in section 125.81, subsection 2, paragraph “b” or “c”. Such an intoxicated or incapacitated person may also be delivered to a facility by someone other than a peace officer upon a showing of reasonable grounds. Upon delivery of the person to a facility under this section, the examining physician may order treatment of the person, but only to the extent necessary to preserve the person’s life or to appropriately control the person’s behavior if the behavior is likely to result in physical injury to the person or others if allowed to continue. The peace officer or other person who delivered the person to the facility shall describe the circumstances of the matter to the examining physician. If the person is a peace officer, the peace officer may do so either in person or by written report.  A peace officer shall appear in person if the person is to be arrested upon discharge. If the examining physician has reasonable grounds to believe that the circumstances in subsection 1 are applicable, the examining physician shall at once communicate with the nearest available magistrate as defined in section 801.4, subsection 10.  During the communication with the nearest available magistrate, the peace officer shall inform the magistrate that the person is to be arrested upon discharge and notice has been provided pursuant to paragraph “b”. The magistrate shall, based upon the circumstances described by the examining physician, give the examining physician oral instructions either directing that the person be released forthwith, or authorizing the person’s detention in an appropriate facility. The magistrate may also give oral instructions and order that the detained person be transported to an appropriate facility.
   b.  In circumstances where a peace officer delivers a person to the facility and the peace officer notifies the facility, in writing, that the person is to be arrested upon discharge, the facility shall notify the law enforcement agency that employs the peace officer by telephone or electronic mail at least six hours prior to the planned discharge of the person from the facility. If the law enforcement agency does not retrieve the person prior to the time of the planned discharge, the person may be discharged as planned.
   b.  c.  If the magistrate orders that the person be detained, the magistrate shall, by the close of business on the next working day, file a written order with the clerk in the county where it is anticipated that an application may be filed under section 125.75. The order may be filed by facsimile if necessary. The order shall state the circumstances under which the person was taken into custody or otherwise brought to a facility, and the grounds supporting the finding of probable cause to believe that the person is a chronic substance abuser likely to result in physical injury to the person or others if not detained, and whether notification to a law enforcement agency seeking to arrest the person is required prior to discharge pursuant to paragraph “b”. The order shall confirm the oral order authorizing the person’s detention including any order given to transport the person to an appropriate facility. The clerk shall provide a copy of that order to the chief medical officer of the facility to which the person was originally taken, any subsequent facility to which the person was transported, and to any law enforcement department or ambulance service that transported the person pursuant to the magistrate’s order.
    Sec. 3.  Section 125.91, Code Supplement 2009, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  A facility that does not notify a law enforcement agency about the discharge of a person who is to be arrested as provided in section 2, paragraph “b”, shall pay a civil penalty as provided in section 805.8C, subsection 8.
    Sec. 4.  Section 229.22, subsection 2, paragraphs a and b, Code Supplement 2009, are amended to read as follows:
   a.  In the circumstances described in subsection 1, any peace officer who has reasonable grounds to believe that a person is mentally ill, and because of that illness is likely to physically injure the person’s self or others if not immediately detained, may without a warrant take or cause that person to be taken to the nearest available facility or hospital as defined in section 229.11, subsection 1, paragraphs “b” and “c”. A person believed mentally ill, and likely to injure the person’s self or others if not immediately detained, may be delivered to a hospital by someone other than a peace officer. Upon delivery of the person believed mentally ill to the hospital, the examining physician may order treatment of that person, including chemotherapy, but only to the extent necessary to preserve the person’s life or to appropriately control behavior by the person which is likely to result in physical injury to that person or others if allowed to continue. The peace officer who took the person into custody, or other party who brought the person to the hospital, shall describe the circumstances of the matter to the examining physician. If the person is a peace officer, the peace officer may do so either in person or by written report.  A peace officer shall appear in person if the person is to be arrested upon discharge. If the examining physician finds that there is reason to believe that the person is seriously mentally impaired, and because of that impairment is likely to physically injure the person’s self or others if not immediately detained, the examining physician shall at once communicate with the nearest available magistrate as defined in section 801.4, subsection 10.  During the communication with the nearest available magistrate, the peace officer shall inform the magistrate that the person is to be arrested upon discharge and notice has been provided pursuant to paragraph “b”. The magistrate shall, based upon the circumstances described by the examining physician, give the examining physician oral instructions either directing that the person be released forthwith or authorizing the person’s detention in an appropriate facility. The magistrate may also give oral instructions and order that the detained person be transported to an appropriate facility.
   b.  In circumstances where a peace officer delivers a person to a facility or hospital and the peace officer notifies the facility or hospital, in writing, that the person is to be arrested upon discharge or release, the facility or hospital shall notify the law enforcement agency that employs the peace officer by telephone or electronic mail at least six hours prior to the planned discharge or release of the person from the facility or hospital. If the law enforcement agency does not retrieve the person prior to the time of the planned discharge or release, the person may be discharged or released as planned.
   b.  c.  If the magistrate orders that the person be detained, the magistrate shall, by the close of business on the next working day, file a written order with the clerk in the county where it is anticipated that an application may be filed under section 229.6. The order may be filed by facsimile if necessary. The order shall state the circumstances under which the person was taken into custody or otherwise brought to a facility or hospital, and the grounds supporting the finding of probable cause to believe that the person is seriously mentally impaired and likely to injure the person’s self or others if not immediately detained, and whether notification to a law enforcement agency seeking to arrest the person is required prior to discharge pursuant to paragraph “b”. The order shall confirm the oral order authorizing the person’s detention including any order given to transport the person to an appropriate facility or hospital. The clerk shall provide a copy of that order to the chief medical officer of the facility or hospital to which the person was originally taken, to any subsequent facility or hospital to which the person was transported, and to any law enforcement department or ambulance service that transported the person pursuant to the magistrate’s order.
    Sec. 5.  Section 229.22, Code Supplement 2009, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  A hospital that does not notify a law enforcement agency about the discharge of a person who is to be arrested as provided in section 2, paragraph “b”, shall pay a civil penalty as provided in section 805.8C, subsection 8.
    Sec. 6.  Section 805.8C, Code Supplement 2009, is amended by adding the following new subsection:
   NEW SUBSECTION.  8.  Notification Violations.  For violations described in section 125.91 or 229.22 the scheduled fine is five hundred dollars for a first violation, and one thousand dollars for a second or subsequent violation. The scheduled fine under this subsection is a civil penalty, and the criminal penalty surcharge under section 911.1 shall not be added to the penalty.
EXPLANATION
   This bill relates to the emergency detention or hospitalization of a person incapacitated by a chemical substance or with a serious mental impairment.
   The bill applies to persons who are not under arrest but who will be placed under arrest upon discharge or release from the facility or hospital treating the person.
   Under the bill, if a peace officer delivers a person to a facility for detention due to incapacitation from a chemical substance, and the peace officer indicates the person is to be arrested upon discharge from the facility, the facility shall contact the law enforcement agency that employs the peace officer by telephone or electronic mail at least six hours prior to the planned discharge of the person from the facility. The bill provides that if the law enforcement agency does not retrieve the person prior to the time of the planned discharge, the person may be discharged as planned. If the person is to be arrested upon discharge, the bill requires the peace officer to remain at the facility, and inform the magistrate about the pending arrest. If the peace officer informs the magistrate that the person is to be arrested upon discharge, the bill also requires the magistrate to indicate in the detention order that the facility is required to notify the law enforcement agency about the discharge prior to such discharge.
   Under the bill, if a peace officer delivers a person to a hospital for emergency hospitalization for a serious mental impairment, and the peace officer indicates the person is to be arrested upon discharge or release from the hospital, the hospital shall contact the law enforcement agency that employs the peace officer by telephone or electronic mail at least six hours prior to the planned discharge or release of the person from the hospital. The bill provides that if the law enforcement agency does not retrieve the person prior to the time of the planned discharge or release, the person may be discharged or released as planned. If the person is to be arrested upon discharge, the bill requires the peace officer to remain at the hospital, and inform the magistrate about the pending arrest. If the peace officer informs the magistrate that the person is to be arrested upon discharge, the bill also requires the magistrate to indicate in the detention order that the hospital is required to notify the law enforcement agency about the discharge prior to such discharge.
   If a facility detaining a person due to incapacitation from a chemical substance or a hospital detaining a person due to a serious mental impairment, fails to notify a law enforcement agency about the discharge of a person who is to be arrested upon discharge, the facility or hospital shall be in violation of the bill and subject to a civil penalty. The bill assesses a $500 civil penalty for a first violation and a $1,000 civil penalty for a second or subsequent violation.
   Code section 602.8108 governs the distribution of fines and fees collected by the clerk of the district court.