A3300

An Act authorizing a civil action to obtain temporary legal authority to direct treatment services for person with substance use impairment and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. For purposes of this act:

“Licensed service provider” means an independent clinic, whether freestanding or a distinct part of a facility, that is licensed or approved by the Department of Health or the Department of Human Services to provide treatment for substance use disorders.

“Person” means a person who is over the age of 18.

“Petitioner” means a person who is a family member within the third degree of consanguinity of the respondent or a legal guardian of the respondent.

“Qualified health professional” means a physician, physician’s assistant, advanced practice nurse, psychiatrist, psychologist, or other health care professional who is properly credentialed or licensed in this State to provide an assessment or diagnosis for a substance use disorder.

“Respondent” means a person with an alleged substance use impairment who is the subject of a petition filed under this act.

“Substance use disorder” means a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances. For the purpose of this chapter, substance use disorder is defined in the current version of the Diagnostic and Statistical Manual of Mental Disorders published by and available from the American Psychiatric Association.

“Substance use impairment” means: (1) a condition in which a substance use disorder likely will cause a person to neglect or refuse to care for himself, including providing for essential needs such as food, clothing, shelter, health care, or safety, to the extent that such neglect or refusal poses an imminent threat of substantial harm to the person’s well-being, or that there is a substantial likelihood that the person, without the provision of treatment services, is likely to cause physical harm to himself in the near future; and (2) the person’s judgment is impaired by the substance use disorder to the extent that the person is incapable of understanding the need for treatment services and to make rational decisions regarding the provision of such services. The mere refusal of the respondent to request or receive treatment services shall not constitute evidence of lack of judgment with respect to his need for services.

“Treatment services” means outpatient or residential treatment services provided by a facility licensed by the Department of Health or the Department of Human Services to provide substance use disorder treatment services.

2. A petitioner may initiate a civil action in the Superior Court in the county of residence of the respondent seeking to obtain temporary legal authority to direct treatment services for a respondent who is alleged to have a substance use impairment by filing of a petition with the Superior Court pursuant to the Rules of Court.

3. a. In addition to any information that may be required by the Rules of Court, the petition shall contain:

(1) the name and address of the petitioner, and the relationship of the petitioner to the respondent;

(2) the name, address, and current location of the respondent;

(3) the name and address of the respondent’s attorney, if known;

(4) factual statements explaining why the petitioner believes that the respondent has a substance use impairment;

(5) a statement as to whether the respondent has refused to participate in an assessment to determine if the respondent has a substance use disorder;

(6) a statement as to whether a qualified health professional has determined that the respondent is in need of and would benefit from substance use disorder treatment services;

(7) a statement as to whether the respondent has refused to participate in substance use disorder treatment services;

(8) a statement that the petitioner has made arrangements for a substance use disorder assessment for the respondent;

(9) a statement that the petitioner has made arrangements for substance use disorder treatment services for the respondent, including a statement of verification from the treatment provider where the respondent will receive treatment; and

(10) a statement of the petitioner's knowledge of whether the respondent has an attorney and the respondent’s ability to afford an attorney.

b. (1) In addition, the petition shall contain a certification from a qualified health professional who has examined the respondent within five days of the filing of the petition setting forth the findings of the examination. The certification shall verify that the respondent has a substance use disorder as alleged in the petition and shall state that the respondent presently needs and would benefit from treatment services to mitigate the respondent’s substance use impairment. A health care professional employed by a treatment provider from which the respondent will receive treatment services shall not be eligible to be the certifying qualified health care professional.

(2) If the certification required by paragraph (1) of this subsection is not available at the time that the petition is filed because the respondent has refused to participate in an assessment, the petition shall state the circumstances of the refusal and shall include a statement from the petitioner regarding the respondent’s medical history which reasonably substantiates the respondent’s substance use disorder as alleged in the petition. If the petitioner does not have authority to access the respondent’s medical history at the time the petition is filed, the court may, at the request of the petitioner, issue an ex parte order for the disclosure of the medical information related to the respondent’s alleged substance use disorder to the petitioner. Prior to any hearing, the petitioner shall provide the court and all parties with medical history information which reasonably substantiates the respondent’s substance use disorder. Alternatively, the court may, based solely on the allegations and factual statements in the petition, issue an ex parte order requiring the respondent to participate in a substance use disorder assessment prior to the date of the hearing.

4. Upon the filing of the petition, the court shall, to the extent feasible, schedule an expedited hearing to determine whether to grant the petitioner temporary legal authority to direct treatment services for the respondent. The petition shall be served on all parties and the hearing shall proceed pursuant to the Rules of Court. The notice shall inform the respondent of his legal rights related to the proceedings as specified in section 5 of this act.

5. A respondent under this act has the following rights at any court proceeding under this act:

a. The right to be represented by counsel or, if indigent, by appointed counsel;

b. The right to be present at the court hearing unless the court determines that, because of the person's conduct at the court hearing, the proceeding cannot reasonably continue while the respondent is present;

c. The right to present evidence;

d. The right to cross examine witnesses; and

e. The right to a hearing in camera.

6. The respondent shall be present at the hearing unless the court finds that the respondent’s presence would be detrimental to the respondent or others, or that the respondent willfully refuses to appear before the court, in which case, the court may appoint a guardian ad litem to represent the respondent in court proceedings under this act. In addition to the appointment of a guardian ad litem, the court shall appoint counsel to represent the respondent during court proceedings under this act if the respondent is not represented by counsel and it appears to the court that the respondent is not capable of understanding the need for counsel or is not capable of retaining counsel, or if the respondent is determined to be indigent. Counsel appointed by the court during proceedings to determine whether to grant the petitioner temporary legal authority to direct treatment services shall continue to be available to consult with the respondent during the initial 90 days of treatment services, except that such consultation shall be limited to the issues specified in section 14 of this act. However, assistance of counsel to initiate or represent a respondent at court proceedings after legal authority to direct shall be at the counsel’s discretion based on the basis of the relief sought and the probability of prevailing on the action.

7. To be granted temporary legal authority to direct treatment services for a respondent under this act, the petitioner has the burden to prove to the court, by clear and convincing evidence, that:

a. the respondent has a substance use disorder;

b. the respondent has a substance use impairment;

c. the respondent needs and can reasonably benefit from treatment; and

d. arrangements have been made to provide treatment services to the respondent.

8. If, after considering all relevant evidence and testimony, the court finds, by clear and convincing evidence, that the petitioner has established sufficient proof of the existence of qualifying factors enumerated in section 7 of this act, the court shall enter an order granting temporary legal authority to direct treatment services for the respondent. The granting of temporary legal authority to direct treatment services shall authorize the petitioner to admit the respondent to treatment services and to make all decisions related to substance use disorder treatment. The temporary legal authority granted under this act shall expire 90 days from the date of entry of the order or until the respondent is discharged by the treatment provider, whichever is earlier, except that the petitioner may apply to the court to extend the temporary legal authority if necessary to complete treatment services for the respondent. The court’s order shall specify that the petitioner shall seek, and the treatment provider shall employ, the least restrictive form of treatment services for the respondent.

9. If, during the course of proceedings under this act, the court believes that the respondent is in need of involuntary commitment, as defined in section 2 of P.L.1987, c.116 (C.30:4-27.2), due to mental illness, the court may initiate procedures for involuntary civil commitment under P.L.1987, c.116 (C.30:4-27.1 et seq.).

10. If a respondent fails to participate in an assessment or treatment services pursuant to the directives of a person who is granted temporary legal authority to direct treatment services, the person granted temporary legal authority may apply to the court seeking the enforcement of any directive of the person granted temporary legal authority related to the respondent’s participation in an assessment or treatment services. The court may issue any order necessary to compel compliance by the respondent to the extent that such directive is reasonable and directly related to treatment services for the respondent. The court may also initiate civil contempt proceedings against a respondent for failure to comply with the directives of a person who is granted temporary legal authority to direct treatment services, as authorized by order of the court. Under no circumstances shall a respondent be incarcerated for failure to comply with the directives of the person who is granted temporary legal authority to direct treatment services.

11. a. If a respondent fails to participate in an assessment or treatment services pursuant to a directive of a person who is granted temporary legal authority to direct treatment services or an order to the court, the court may direct the sheriff to take the respondent into custody and deliver the person directly to a qualified health professional or treatment provider selected by the person who is granted temporary legal authority to direct treatment services and designated by the court. A sheriff acting in good faith who takes reasonable steps to take custody and transport a respondent as directed by the court is immune from civil and criminal liability.

b. A respondent taken into custody pursuant to this section shall not be considered to be arrested for any purpose, and no entry or record shall be made by the officer to indicate that the person was detained or charged with any crime or offense.

12. A person who is granted temporary legal authority to direct treatment services shall be responsible for selecting an appropriate assessment and treatment provider, arranging for admission and discharge of the respondent, monitoring treatment plan progress, and for payment of the costs of assessment and treatment services provided to the respondent.

13. No filing fee shall be assessed for the filing of a petition under this act; however, a petitioner shall be responsible for other costs associated with an application filed under this act, including the cost for a sheriff to transport a respondent to an assessment or treatment provider and the reasonable cost of court-appointed counsel for the respondent. The court may waive costs if the petitioner is determined to be indigent.

14. A respondent may, at any time, petition the court: for the dismissal of proceedings under this act; to vacate an order designating a person who is granted temporary legal authority to direct treatment services; or for relief from any directive of such person due to the fact that the respondent does not have a substance use impairment, that the treatment provider is not employing the least restrictive form of substance use disorder treatment, that the directive of the person who is granted temporary legal authority to direct treatment services is not reasonable or directly related to an assessment or treatment services for the respondent, or that the respondent is voluntarily admitting himself to treatment services with a provider of his choosing.

15. A person who knowingly provides false information for the purpose of obtaining temporary legal authority to direct treatment services under this act is guilty of a crime of the fourth degree.

16. All petitions and related documents filed with the Superior Court in accordance with this act shall be deemed confidential and shall not be not subject to public inspection, unless otherwise ordered by the court with the consent of the person who is granted temporary legal authority to direct treatment services or the respondent.

17. This act shall take effect on the first day of the sixth month following enactment.

STATEMENT

This bill would permit a petitioner to initiate a civil action seeking to obtain temporary legal authority to direct treatment services for a respondent who is alleged to have a substance use impairment.

A petition under the bill may only be made by a person over the age of 18 who is a family member or a legal guardian of the respondent. The petition must include certain identifying information, as well as factual statements explaining why the petitioner believes that the respondent has a substance use impairment; a statement as to whether the respondent has refused to participate in an assessment to determine if the respondent has a substance use disorder; a statement as to whether a qualified health professional has determined that the respondent is in need of and would benefit from substance use disorder treatment services; statement as to whether the respondent has refused to participate in substance use disorder treatment services; a statement that the petitioner has made arrangements for a substance use disorder assessment for the respondent; and a statement that the petitioner has made arrangements for substance use disorder treatment services for the respondent, including a statement of verification from the treatment provider where the respondent will receive treatment.

In addition, the petition must contain a certification from a qualified health professional who has examined the respondent within five days of the filing of the petition verifying that the respondent has a substance use disorder and stating that the respondent presently needs and would benefit from treatment services to mitigate the respondent’s substance use impairment. If the respondent has refused to participate in an assessment, the petition must state the circumstances of the refusal and include a statement from the petitioner regarding the respondent’s medical history which reasonably substantiates the respondent’s substance use disorder as alleged in the petition. If the petitioner does not have authority to access the respondent’s medical history at the time petition is filed, the court may issue an ex parte order for the disclosure of the medical information. Alternatively, the court may, based solely on the allegations and factual statements in the petition, issue an ex parte order requiring the respondent to participate in a substance use disorder assessment prior to the date of the hearing.

A respondent under this bill has the right to: be represented by counsel or, if indigent, by appointed counsel; be present at the court hearing unless the court determines that, because of the respondent’s conduct at the court hearing, the proceeding cannot reasonably continue while the respondent is present; present evidence; cross examine witnesses; and a hearing in camera.

If the court finds, by clear and convincing evidence, that the petitioner has established sufficient proof of the existence of qualifying factors, the court will enter an order granting temporary legal authority to direct treatment services for the respondent. The granting of temporary legal authority to direct treatment services will authorize the petitioner to admit the respondent to treatment services and to make all decisions related to substance use disorder treatment. The temporary legal authority granted under this act will expire 90 days from the date of entry of the order or until the respondent is discharged by the treatment provider, whichever is earlier, except that the petitioner may apply to the court to extend the temporary legal authority if necessary to complete treatment services for the respondent.

If a respondent fails to participate in an assessment or treatment services pursuant to the directives of a person who is granted temporary legal authority to direct treatment services, the court may issue any order necessary to compel compliance by the respondent to the extent that such directive is reasonable and directly related to treatment services for the respondent. The court may also initiate civil contempt proceedings against a respondent for failure to comply with the directives of a person who is granted temporary legal authority to direct treatment services, but may not order the respondent to be incarcerated for failure to comply.