Legislature(1995 - 1996)
03/18/1996 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 493 INVOLUNTARY COMMITMENT:ALCOHOL/DRUG ABUSE Number 330 REPRESENTATIVE IVAN IVAN came forward to present testimony on HB 493 as sponsor. He stated that some concerns arose from the previous testimony on HB 493 and he noted that these concerns have been addressed by his staff. Representative Ivan listed all the entities which came together to discuss changes to this legislation. REPRESENTATIVE JOE GREEN made a motion to adopt version (G) of CSHB 493 as the committee's working document. There being no objection it was so moved. Number 529 BARBARA BRINK, Attorney, Alaska Public Defenders Agency testified from Anchorage by teleconference. She stated that she appreciated the input by the various entities to ensure that this legislation passed constitutional muster, but she expressed some still exisiting legal concerns whether or not this legislation would violate constitutional due process. She noted that this might be beyond their fixing. She believed the impetus for this bill was to make it easier for substance abuse counselors and concerned family members and friends to involuntarily commit someone in order that the client must participate in treatment. MS. BRINK stated that normally, before the state can lock up someone against their will, they have to prove that the state has a valid and strong interest in locking this person up because the fundamental rights and liberties requires strict scrutiny. This means that a person remaining at large or at liberty has to be balanced against the state's interest in curtailing this liberty. The previous standard requires that a person has to be demonstratively shown to be dangerous to themselves or others. The previous language in the statute requires some proof regarding the likelihood of an infliction of physical harm on another person. This is why it was so difficult to lock someone up in requiring them to have treatment against their will. This is a difficult standard to meet. MS. BRINK went on to note that the current standard in this bill and the CS just adopted is worded so broadly that it has due process problems. She thought that the concept of dangerousness was a constitutional requirement that this present bill does not require. For example, she asked if this legislation covered a person who is defined to be incapacitated by alcohol or drugs simply if their judgment is so impaired that they are not making rational decisions regarding their treatment. This could include anybody who is a user or an abuser who does not want to go to treatment. The second prong of the test is whether or not they're at risk of serious physical harm or illness unless committed, the "or illness" prong caused concerns for her. MS. BRINK stated that interpreted broadly this legislation could include someone who smokes two packs of cigarettes a day. They are certainly placing themselves in serious risk of harm or illness, they have demonstrated an increased tolerance for cigarettes and the drug contained in them, they suffer from withdrawal and it's a significant habit to their health. By interpreting the language of this bill at face value, she felt it was not strict enough to pass constitutional muster. She also noted some procedural safe guards which were missing, for example, in a civil commitment proceeding the state has to prove by clear and convincing evidence that a person should be committed. They have to place someone at the very closest facility available and they're entitled to a hearing, which could be a problem. This hearing problem should be corrected, because under a mental health commitment they are entitled to a hearing within 72 hours and as Ms. Brink read the CS this could be up to 10 days after the hearing. MS. BRINK said that for all these reasons she has legal concerns about the bill, but as a public defender she also has some policy concerns. She said that they were talking about a very valuable and limited resource which was their alcohol treatment facilities. She has represented many people who fall within these definitions of alcoholic or drug abuser. Her own personal experience has been that those people who are going to benefit from treatment are those who find it within themselves who are self-motivated and finally reach that point in their lives where they actively seek out the treatment themselves. MS. BRINK noted that what they were doing was forcing people who are not at this willing point into these limited treatment beds and they were taking those options away from people who might most benefit from them. She felt as though the success rates for treatment bear out her personal experience, that people who actively seek out treatment, who are willing and able benefit from this treatment. She also felt that this legislation could have an unfair impact on rural citizens. In many small towns and villages there are no facilities available. She wondered about the impact of this bill by taking someone out of their home village and shipping them to Anchorage. Number 817 REPRESENTATIVE FINKELSTEIN asked that in her experience did Ms. Brink know whether or not that the state was putting people through treatment now, but just in a different form. He asked if they go through some type of patrol picked up and then placed in a detox program. He asked if these programs were involuntary as well. MS. BRINK answered yes, but that this sort of commitment was for a very limited period of time, up to twelve hours only until they are no longer so incapacitated. She understood that Juneau has used the involuntary civil commitment procedure to try to force treatment on other people, but it has been found not to be a workable solution in other communities. Number 890 REPRESENTATIVE FINKELSTEIN understood that detox treatment was for three days. MS. BRINK responded that these inebriates can be required to stay up to 72 hours if someone files a petition. REPRESENTATIVE TOOHEY stated that she absolutely agreed with Ms. Brink, unless someone wants to stop drinking it's pointless to put them anywhere. She thought that the cost of this program was prohibitive. She asked about a fiscal note with this CS and although she applauded Representative Ivan's desire to help every alcoholic, she stated, "you can only take a horse to water, you can't make them drink." Number 990 SHANNON O'FALLON, Department of Law, Human Services Section, testified to the constitutional issues regarding HB 493. She stated that Ms. Brink was correct about the Supreme Court requiring some levels of dangerousness in order for the state to commit someone. The Supreme Court has addressed this issue in the context of mental health issues and she imagined it would be the same. If there's someone who suffers from mental illness or from alcoholism or drug abuse, to the extent it's either making them a danger to themselves or to others, or incapacitating them to a level that they can't care for themselves, she felt that the state's interest in treating these individuals and forcing them into treatment meets the constitutional requirements. MS. O'FALLON stated that Ms. Brink may also be right that in the definition of incapacitated by alcohol or drugs, it may be that they may need to change an "or" there to "and". This would be on page 7, line 22. It is probably not enough to have someone be incapacitated by alcohol or drugs and incapable of making rational decisions for treatment, this probably isn't enough to commit someone. There then has to be another level met which would require that these individuals are unable to care for their basic needs. If the word "or" after the word treatment was changed to "and" then this should be sufficient. The level of dangerousness would be the individual not being able to care for themselves. This would take care of some of Ms. Brink's concerns. MS. O'FALLON noted that the issue of proving that someone is a danger to others under the previous standard is not true. The standard was an "or" situation as well, incapacitated by alcohol or a danger to others. It is not necessary to have both. Number 1123 REPRESENTATIVE TOOHEY asked about the "group" on 4th Avenue in Anchorage who live in tents as a reference to page 7, line 22 which outlined "persons basic safety or personal needs, including food, clothing, shelter, or medical care." She noted that her objective for food, clothing and shelter is not the same as everybody else. There are people living in tents and eating out of "whatever." She added that this was not her norm, but it is certainly the norm for this group. CHAIRMAN PORTER noted that the amendment raised by the Department of Law was small enough and manageable enough to take care of in committee. REPRESENTATIVE BUNDE made a motion to move the amendment as noted. On page 7, line 22 delete the word "or" and replace it with the word "and". There being no objection it was so moved. Number 1228 DIRK NELSON, Alaska Civil Liberties Union testified by teleconference from Valdez. He stated that the Alaska Civil Liberties Union opposed this bill on the grounds that it expands the scope of the statute from alcohol to drugs without clearly defining what drugs are. He used the example of a hyperactive child taking drugs to help correct their condition. Under this legislation such a child could theoretically be committed. This legislation removes harm to others as a standard and (indisc. - coughing) the words "greatly disabled" were the standard. This could multiply to an individual being able to function in meeting their needs or potential harm to themselves or others in an imminent way. It removes the right to a jury trial in the first phase. The period of time was changed for someone to be committed from 90 to 180 days. MR. NELSON then asked to testify to this legislation not as a representative of the Alaska Civil Liberties Union, but as an individual. He noted the disparity of the target populations within the legislation. A reference in the legislation is made to alcoholics with an implication of physical dependence, but in reference to drug abusers there is no indication of physical addiction or dependence. He noted that there was a great deal of disparity of defining what is a drug abuser. Drug treatment as a service is questionable at best regarding it's success. Alaska has no scientific data regarding the effectiveness. MR. NELSON pointed out that drug users are the most systemically discriminated against group in society despite constitutional rulings stating, for example, that marijuana cultivation or use in private is not a state legal issue. Inaccurate data has been used in Luki v. Neighbors and the Treasury Bureau, as well as other urine testing cases that have depicted drug users as being greatly responsible for costs to the economic system. He noted the Firestone Study. MR. NELSON noted that language in HB 493 states that a refusal of a physical exam will not be used as evidence as lack of judgment, yet it mandates that this evidence be entered into the petition and later considered. Despite an apparent attempt to better define the original and poorly constructed language in this bill, there remains a great deal of room for interpretation. It is this type of interpretation that he fears later will be put to misuse. The inability to hold a job may be perceived under this bill to include anyone who is terminated for a urine test without taking into account whether they were legally eligible to be tested in the first place. MR. NELSON noted that previous court decisions have indicated that forced medical care is not to be administered without there being some degree of imminent danger of harm to self or others. He wondered about someone who is wrongly locked up by testimony of a family member who does not meet the criteria to do so. He mentioned the cost issue of this legislation. He also used mortality rates, such as heart disease which kills well over a half a million people, yet he noted that the government isn't jailing people for eating fried chicken. Tobacco kills over 450 thousand people a year and the government still subsidizing this. Alcohol kills 158 thousand people a year. Illicit substances combined kill 11 thousand people per year, a mere pittance in contrast to the others, but they seem to be pursuing these people with a vigor, including taking their jobs away and locking them into institutions. He said he was greatly concerned about the intent of this bill. Number 1607 REPRESENTATIVE BUNDE asked Mr. Nelson if he knew of instances where chronic alcoholics were a danger to the mental health of others. MR. NELSON said that yes he had, but this did not meet the criteria or the intent of the law. Personally, listening to various political speeches he added was a danger to his mental health, but this should not give him the opportunity to lock a person up. Number 1660 KATHI BURNS, Clinical Director, Northern Lights Recovery Center, testified on HB 493 by teleconference from Nome. She stated that she represented the Norton Sound region with her testimony. Norton Sound has the highest suicide rate in Alaska. This rate does not include the drowning or environmental deaths. Their environmental deaths, 85 percent of which are from excessive cold and alcohol related. They have the second highest homicide rate in the state. They have the third highest poisoning death rate in the state, 76 percent of which are alcohol related. They have the highest firearm death rate in Alaska and suicide represents 65.2 percent of the firearm deaths of this suicide rate. The major number of suicides are alcohol related. Ms. Burns noted that they have 49 times higher alcohol and drug related deaths than in the lower 48 states. MS. BURNS stated that their concern in the Norton Sound area is that they have a great deal of alcohol problems in the region and they do not have a detox facility available for their region. They would like to see some consideration in the bill to give licensed clinical social workers or some other qualified personnel the responsibility of providing some of the court testimony or some of the work load in order that their physicians won't be overwhelmed with this particular commitment issue. Number 1780 MS. O'FALLON said she believed under AS 47.37.170 that a physician's assistant can do an evaluation. She noted that the location of this language was at regulation cited as 7 AAC 29.08.0 which states that "an individual performing duties under AS 47.37.170.C as a qualified health practitioner must hold a valid license under AS.08 as a physician, a physician's assistant or nurse practitioner." For a 12 hour hold someone other than a physician can do the evaluation. She thought that Mr. Dapcevich could speak to broadening the definition of who can do them. Number 1828 DON DAPCEVICH, Executive Director, Governor's Advisory Board on Alcoholism & Drug Abuse, Department of Health & Social Services, said that without a doubt a clinical social worker or a credentialed chemical dependency person can very well provide the behavioral clinical data, however, in most cases they deal with people who are severely debilitated medically as a result of their use of alcohol or drugs. A medical practitioner would probably have to speak to the practitioner issues if they have decreased liver functioning or kidney problems, etc. These are people who are severely debilitated medically. Generally speaking, to protect the rights of the person committed, there is an obligation to have a medical physician to exam the client and provide input to the courts. MS. O'FALLON added that with the mental health commitment, under Title 47, in order to commit someone for 30 days a physician is also required as part of this procedure, either a physiatrist or a physician. Number 1888 REPRESENTATIVE TOOHEY referred to page 2, line 22 and noted that especially in the rural areas there are village health aids that are very qualified to be added to this legislation, as well as nurse practitioners, to at least initiate this treatment. She noted that they were only allowed a 12 hour hold. MR. DAPCEVICH noted that the 12 hour time frame was the limited time which a person can be held in protective custody by the jail. This 12 hour figure is based on a clinical rather than an administrative basis. It's not recommended to keep people in jail who are entering withdrawal. Withdrawal usually begins after about 12 hours. In a detox facility they are allowed to hold someone up to 72 hours and after this time an individual can refuse treatment. MR. DAPCEVICH pointed out that the involuntary commitment section of the statute is to target those people, for example, who had 170 twelve hour holds in a local jail in Fairbanks. He didn't know how many detox visits this person had and/or, how many aborted treatments there were, but these are people where if these days are totaled up, they're either involved in the judicial system or the medical system on a daily basis. Detox is extremely time consuming and expensive. The department would do far better to use less expensive treatment dollars to treat these individuals rather than to continually cycle them through a detox or jail. MR. DAPCEVICH stated that what they attempted to do in the last go around was to make the rest of the statute, not necessarily those sections involved with involuntary commitment, but to make them consistent. He noted that slight changes were made in the other sections, such as dealing with 12 hour holds, just to make the language consistent throughout the statute. They made no substantial changes in those other portions of the statute. MR. DAPCEVICH continued by responding to a question by Chairman Porter about what defines a drug user. He stated that the definition is consistent with alcohol. They were speaking to the title, "An act related to treatment of alcoholism or drug abuse." The definition in the statute is consistent between alcohol and drug abuse. It specifically speaks to drug addiction. On page 7, Section 13 deals with the definition of addiction. Number 2090 REPRESENTATIVE FINKELSTEIN asked how this definition could be used to apply and differentiate between nicotine use to crack cocaine. He asked if these both fell under the definition. MR. DAPCEVICH clarified that crack cocaine on the one hand meets the component dealing with a person being unable to make rational decisions because of impaired mental function. Nicotine does not impair mental function. REPRESENTATIVE TOOHEY took exception with this statement. She said he had never tried to quit. MR. DAPCEVICH said he didn't speak to trying to quit or addiction, but to mental functioning in relation to an ability to make decisions for the need for treatment. REPRESENTATIVE FINKELSTEIN said that it's all arguable. If someone is addicted to a substance and they know it will kill them, but yet they continue to do it. The point was made that a lot of situations can fall into this. He referred to the definition on page 3 and said he shared the concerns expressed about this. He quoted that the person has to be "an alcoholic or drug abuser" which means they have an addiction level and they then must be either incapacitated or under a risk of serious physical harm or illness. He noted that plenty of drugs including legal and illegal certainly constitute serious physical harm. He thought that this was a pretty broad category when applied to the world of drugs whether people are consuming them legally or illegally. MR. DAPCEVICH noted that the referral early on deals with the issue of removing a person from physical harm during a 12 hour hold, which might be done with someone who is not addicted to alcohol or drugs, or someone who needs (indisc. - coughing) because they are not able to fend for themselves in terms of their own safety. This does not speak to addiction at all, but speaks only to protective custody. When speaking about involuntary commitment, which is a different portion of the statute it's used in those cases where there are all the markers for addiction, as well as, the other portion of the statute dealing with a person being able to provide for their own safety. Number 2217 REPRESENTATIVE FINKELSTEIN said that this went to the heart of the point. This was the issue before them. He read from the involuntary commitment section and he still didn't see how this differentiation was made. He again used the example of nicotine and stated that it meets the requirement for addiction and under this section the person has to be either incapacitated or who, if not treated, will be at risk of serious harm or illness. He asked that if someone smokes 4 packs a day are they not at risk of serious physical harm or illness. Number 2303 CHAIRMAN PORTER wondered if they could somehow write this "illegal drugs" phrase specifically into the legislation so it was more clear. MR. DAPCEVICH agreed that they could. CHAIRMAN PORTER asked if it would be a simple matter to add illicit drugs or a term like this into the appropriate places through a conceptual amendment. REPRESENTATIVE FINKELSTEIN stated that the use of prescription drugs is a major drug problem. CHAIRMAN PORTER responded that these are controlled substances and he didn't really mean illicit, but controlled substances which would include prescription drugs. REPRESENTATIVE FINKELSTEIN said that his point was that people are addicted to prescription drugs just as they are addicted to alcohol or illegal drugs. They have the same problems and pose the same danger to society. It's hard to differentiate for purposes of debate. Number 2437 REPRESENTATIVE BUNDE made a motion to conceptually amend the bill to include the term controlled substances where appropriate. There being no objection amendment number 2 passed. TAPE 96-36, SIDE B Number 000 REPRESENTATIVE DAVIS noted that the legislation since the last meeting didn't sound any different. The scope of it seemed more broad regarding who can actually be placed in an involuntary situation. She wanted to know more specifically those areas which were worked on since the last meeting. Representative Davis also added that the legislation still did not address the lack of bed space for these individuals. Number 061 MR. DAPCEVICH stated that the aims of this legislation was to base a commitment on sound clinical measures. It ensures that the courts have the latitude necessary to make treatment decisions which are appropriate to the severity of the problem before them with reasonable expectations of success. This legislation protects the rights of these clients. The legislation is more consistent now than before in regard to the mental health commitments, as versus the alcohol and now other drug abuse commitments. The changes also made this legislation more user friendly for treatment programs, especially in the bush communities. MR. DAPCEVICH said that this legislation would not change the status quo initially. It will take a period of time, in fact years, to affect the change necessary to have this long impact on treatment programs. First of all, this is the type of treatment where they won't bring a commitment if they don't have a bed available to put a person in. In this way, it's self-limiting. The expansion of the involuntary commitment time is not an absolute, but an allowance on an individual basis. Number 157 REPRESENTATIVE FINKELSTEIN lodged one of his concerns that this process might be used to solve internal domestic disputes by a relative. MR. DAPCEVICH noted that for someone to be unjustly committed would involve the collusion of a treatment professional, the family member, and the physicians, as well as, the courts. He thought that there were safeguards built in to prevent this from happening. Certainly, on the other hand, the people who are most likely to be committed by a family member are those who a family member can no longer handle for whatever reason. REPRESENTATIVE TOOHEY stated that she had some concerns about the cost of this program. She asked for the cost figures. MR. DAPCEVICH noted that there was a fiscal note attached to this legislation. With response to the cost of this program, they're bearing these costs right now in the emergency rooms, in the detox centers and the jails, etc. In response to the statement that treatment doesn't work for people who don't want treatment there is a preponderance of empirical evidence which indicates that nearly everyone who comes forward for treatment is coming forward because they are being coerced either by their families, the courts, their employer, etc. Basically, people do not want treatment and success rates are not necessarily positively correlated between a person's willingness to undergo treatment. Number 361 REPRESENTATIVE TOOHEY responded by stating that "the day we said we will take this on as a medical problem was the day we made a big mistake...alcoholism should not be lumped into medical problems. It should be lumped into something other than a disease. It is a personal problem you have and of course some people have more of a problem saying no. That to me is our major problem that we've taken on the care and feeding of a group of people that don't want care and feeding." CHAIRMAN PORTER stated that "in all fairness the alternative is much more dismal from what we're doing right now. This bill is an attempt to try to do a little better with the alternative. Quite frankly the U.S. Supreme Court has brought to us by saying that public intoxication should be decriminalized in the first place. We had a way of treating people who didn't want to be treated, it was called the correctional system. We can't do that anymore. This bill isn't the enemy." Number 416 REPRESENTATIVE FINKELSTEIN said that he didn't disagree with this statement, but in the area of drugs they still do have the correctional system and he could see the logic of this legislation as it applies to alcohol. MR. DAPCEVICH stated that there is often a situation which will present itself where an individual is incapacitated by drugs and putting themselves and others in harms way. He noted that where an involuntary commitment is an appropriate option the people involved cannot prove any drug use or there is no case to be formed for drug use, but the individual might be addicted to prescription drugs or crack cocaine where there can be a more legal case made, it is from a medical and safety standpoint to put them in a treatment facility rather than jail. This does not in any way affect the legal consequences of illegal drug use. REPRESENTATIVE PORTER pointed out the amount of time the criminal justice system would be saved if an addict went successfully through this system as an alternative. Number 570 REPRESENTATIVE GREEN made a motion to move CSHB 493 (G) out of the House Judiciary Committee with individual recommendations and attached fiscal note as amended. REPRESENTATIVE FINKELSTEIN asked if anyone had an interest in an amendment to leave this legislation to solely alcohol. Number 602 CHAIRMAN PORTER stated that frankly he would be surprised if very many pure drug abusers would find themselves in this program. What this will do is eliminate the debate about how much of a person's problem is the result of alcohol use or how much is due to their using drugs at the time of an involuntary commitment hearing. If they do, this would probably mean they're so far "down the tube" they would need this program anyway. REPRESENTATIVE DAVIS said she would be interested in Representative Finkelstein's proposal, although she said she was convinced that even though the presenters of the legislation think it would have an impact, she felt as though this program would not do a whole lot. Number 660 CHAIRMAN PORTER said that it was his impression about the function of this bill is that it's available for a few isolated individual cases which every community has. It would be for the individuals described who are going through detox 100 times and literally spending thousands of dollars in this process. An acholic who has been sick for a long time doesn't get rational for sometimes three months. A longer period of involuntary commitment can sometimes get a person to this point. "We don't have an answer for alcoholism, if we did, we'd do it." REPRESENTATIVE FINKELSTEIN said that he wouldn't be offering an amendment as described. CHAIRMAN PORTER stated that they had a motion to move this legislation as described. There being no objection it was so moved.