Hawaii-2011-HB244-Introduced

SECTION 1. The legislature finds that under the basic bill of rights of crime victims and witnesses in chapter 801D, Hawaii Revised Statutes, victims and surviving immediate family members of crime, upon written request through the department of the prosecuting attorney in the county where the crime was committed, must be notified of major developments in the case and whenever the defendant or perpetrator is released from custody; provided that the crime charged is a felony. This right of crime victims and their surviving immediate family members does not depend on whether the person has actually been convicted of that crime, since the term "crime" is defined in chapter 801D as an act or omission committed by an adult or juvenile that would constitute an offense against the person under the Hawaii penal code.

However, the definition of "major developments" in chapter 801D is vague with respect to whether that term includes events such as a finding that the perpetrator is deemed unfit to stand trial, has been transferred to the state hospital or other mental health facility, or has been rehabilitated and transferred back to the jurisdiction of the county for resumption of penal proceedings upon regaining fitness to proceed. While the definition of that term includes "the disposition of the case," this phrase arguably does not include these other developments.

Consequently, a victim or surviving immediate family member of a felony conceivably may not be notified if a defendant or perpetrator is found unfit to proceed, acquitted, or transferred to the state hospital or other facility, since these events are not specifically included in the definition of "major developments." The legislature finds that crime victims and their families should be notified under these circumstances, and should be further notified of the date of the resumption of penal proceedings, should the defendant or perpetrator be subsequently deemed fit to proceed.

Accordingly, the purpose of this Act is to amend the definition of "major developments" to include unfitness to stand trial or acquittal by reason of physical or mental disease, disorder, or defect; transfer to the state hospital or other mental health facility; or regaining fitness to proceed.

SECTION 2. Section 334-2.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The department may operate or contract for a secure psychiatric rehabilitation program for individuals who require intensive therapeutic treatment and rehabilitation in a secure setting. The services authorized by this section shall be for persons:

(1) Involuntarily hospitalized under this chapter for whom the services cannot be reimbursed, covered, or provided by an insurer, plan, or other person;

(2) Committed to the custody of the director under chapter 704; and

(3) Appropriately hospitalized under chapter 704 or 706.

The director shall be responsible for the appropriate placement of all persons placed in facilities or services contracted for or operated by the director under paragraphs (1) through (3).

Any [~~such~~] person placed in a facility or services contracted for or operated by the director who leaves or remains away from the facility or services, without permission, may be apprehended and returned to the facility or services by any employee of the department or by any police officer without any warrant or further proceeding. The director, upon written request, shall give notice to each victim or surviving immediate family member, as defined in section 801D-2, through the department of the prosecuting attorney in the county where the crime was committed, of any unauthorized absence of any person who has been hospitalized under chapter 704 or 706 and placed in a facility or services contracted by or operated by the director, by the most reasonable and expedient means available.

No failure of any state officer or employee to carry out the requirements of this subsection shall subject the State or any employee to liability in any civil action; provided that the failure may provide a basis for disciplinary action as may be deemed appropriate by competent authority."

SECTION 3. Section 334-5, Hawaii Revised Statutes, is amended to read as follows:

"§334-5 Confidentiality of records. All certificates, applications, records, and reports made for the purposes of this chapter and directly or indirectly identifying a person subject hereto shall be kept confidential and shall not be disclosed by any person except so far as:

(1) The person identified, or the person's legal guardian, consents;

(2) Disclosure may be deemed necessary by the director of health or by the administrator of a private psychiatric or special treatment facility to carry out this chapter;

(3) A court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make the disclosure would be contrary to the public interest;

(4) Disclosure may be deemed necessary under the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986, Public Law 99-319, to protect and advocate the rights of persons with mental illness who reside in facilities providing treatment or care;

(5) Disclosure of a person's treatment summary from a previous five-year period from one health care provider to another may be deemed necessary for the purpose of continued care and treatment of the person, or for health care operations; provided that the health care provider seeking disclosure makes reasonable efforts to obtain advance consent from the person; [or]

(6) Disclosures are made between the person's health care provider and payor to obtain reimbursement for services rendered to the person; provided that disclosure shall be made only if the provider informs the person that a reimbursement claim will be made to the person's payor, the person is afforded an opportunity to pay the reimbursement directly, and the person does not pay[.]; or

(7) Disclosure requested through written request to the director, by any victim or surviving immediate family member, as defined in section 801D-2, through the department of the prosecuting attorney in the county where the crime was committed, provided that the disclosure shall be limited to the unauthorized absence of any person who has been hospitalized under chapter 704 or 706 and placed in a facility or services contracted by or operated by the director, and to changes in the custodial status of the offender that allow or result in the release of the offender into the community, including but not limited to escape and final discharge.

Nothing in this section shall preclude the application of more restrictive rules of confidentiality set forth for records covered by Title 42, Part 2, Code of Federal Regulations, relating to the confidentiality of alcohol and drug abuse patient records. For the purposes of this section, "facilities" shall include but not be limited to hospitals, nursing homes, community facilities for mentally ill individuals, boarding homes, and care homes.

Nothing in this section shall preclude disclosure, upon proper inquiry, of any information relating to a particular patient and not clearly adverse to the interests of the patient, to the patient, the patient's family, legal guardian, or relatives, nor, except as provided above, affect the application of any other rule or statute of confidentiality. The use of the information disclosed shall be limited to the purpose for which the information was furnished."

SECTION 4. Section 801D-2, Hawaii Revised Statutes, is amended by amending the definition of "major developments" to read as follows:

""Major developments" means events such as arrest or release of the suspect by the police, case deferral by the police, referral to the prosecutor by the police, rejection of the case by the prosecutor, preliminary hearing date, grand jury date, trial and sentencing dates, and the disposition of the case. "Major developments" include the following:

(1) The offender is found unfit to proceed or acquitted on the grounds of physical or mental disease, disorder, or defect under chapter 704;

(2) Following a finding of unfitness to proceed or acquittal under paragraph (1), the offender is subsequently:

(A) Released or otherwise discharged from custody; or

(B) Committed to the custody of the director of health for placement in an appropriate public or private institution, including:

(i) State facilities established under chapter 334;

(ii) A psychiatric facility, special treatment facility, or therapeutic living program, as those terms are defined in section 334-1; or

(iii) Any other public or private facility or institution, whether on an inpatient or outpatient basis, for the care, custody, diagnosis, treatment, or rehabilitation of that person; or

(3) The offender has regained fitness to proceed pursuant to section 704-406(2), including the date on which the penal proceedings are to be resumed."

SECTION 5. Section 801D-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Upon written request, victims and surviving immediate family members of crime shall have the following rights:

(1) To be informed by the police and the prosecuting attorney of the final disposition of the case. If the crime charged is a felony, the victim or a surviving immediate family member shall be notified of major developments in the case and whenever the [~~defendant or perpetrator~~] offender is released from custody. The victim or a surviving immediate family member shall also be consulted and advised about plea bargaining by the prosecuting attorney;

(2) To be notified by the prosecuting attorney if a court proceeding to which they have been subpoenaed will not proceed as scheduled;

(3) To receive protection from threats or harm;

(4) To be informed by the police, victim/witness counselor, or other criminal justice personnel, of financial assistance and other social services available as a result of being a witness to or a victim of crime, including information on how to apply for the assistance and services;

(5) To be provided by the court, whenever possible, with a secure waiting area during court proceedings that does not require them to be in close proximity to [~~defendants~~] offenders and families and friends of [~~defendants;~~] offenders;

(6) To have any stolen or other personal property expeditiously returned by law enforcement agencies when the property is no longer needed as evidence. If feasible, all the property, except weapons, currency, contraband, property subject to evidentiary analysis, and property, the ownership of which is disputed, shall be returned to the person within ten days of being taken; [~~and~~]

(7) To be informed by the department of public safety of changes planned by the department in the custodial status of the offender that allows or results in the release of the offender into the community, including escape, furlough, work release, placement on supervised release, release on parole, release on bail bond, release on appeal bond, and final discharge at the end of the prison term[.]; and

(8) To be informed by the department of health through the department of the prosecuting attorney in the county where the crime was committed, of changes in the custodial status of the offender that allow or result in the release of the offender into the community, including but not limited to escape and final discharge."

SECTION 6. Section 801D-6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§801D-6[]] Intergovernmental cooperation. The county prosecutor, the department of health, the police, local social service agencies, the courts, and all other agencies involved in the criminal justice system shall all cooperate with each other to ensure that victims and witnesses of crime receive the rights and services to which they are entitled under this chapter."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________
	By Request

HOUSE OF REPRESENTATIVES	H.B. NO.	244
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII