Change of Law: Hospital Action Required
To: Chief Executive Officers, Chief Nursing Officers, WSHA Behavioral Health Work Group,
WSHA ITA Expert group, Legal Counsel and Government Affairs Staff
Please forward to directors of emergency departments and psychiatric unit staff
From: Jaclyn Greenberg, JD, LLM | Policy Director, Legal Affairs
JaclynG@wsha.org | (206) 216-2506
The purpose of this bulletin is to review further changes to the law governing the involuntary treatment of minors (RCW 71.34) under the omnibus bill 2E2SSB 5720. It also amends the Involuntary Treatment Act (ITA, RCW 71.05). This bulletin, which is the third in a series, reviews changes that align RCW 71.34 with the ITA. These changes expand criteria for detention and commitment and modify processes and practices for providing involuntary treatment to minors aged 13-17. The changes discussed in this bulletin are effective June 11, 2020.
Senate Bill 5720 applies to all hospitals that provide evaluation and treatment under the state’s civil commitment statutes, RCW 71.05 and RCW 71.34, including:
- Psychiatric hospitals licensed under RCW 71.12; and,
- Acute care hospitals licensed under RCW 70.41, including hospitals with emergency departments that receive minors and those that accept minors on Single Bed Certifications.
- Review the first bulletin in the series, Changes to the Involuntary Treatment Act (ITA) – Part 1 – Key Changes, and the recommendations included in it. (Note: the second bulletin in the series on SB 5720 is about video evaluations for adults; it does not apply to minors.)
- Review this bulletin and consider how processes and procedures relating to the involuntary treatment of minors may need to be updated. Since the changes listed here are changes to align RCW 71.34 with the ITA, updates may largely involve clarifying that existing processes for adults now apply to minors as well.
- Attend WSHA’s upcoming webcast on Changes to the Involuntary Treatment Act on Friday, June 5 at 10 am. Register here.
- Ensure someone from your organization attends WSHA’s ITA Experts Roundtable Call on Friday, July 10 at 10 am. Calendar invitations have been sent out to WSHA’s ITA Experts Group. Please contact Jaclyn Greenberg about joining the call if someone from your team is not already a part of that group. Note: for members only.
- Review the law in its entirety. This bulletin discusses certain changes relevant to the involuntary treatment of minors. Hospitals are encouraged to review the new law in full to identify any additional changes relevant to their adolescent behavioral health programs. To assist review, WSHA has prepared:
Many of the key changes to RCW 71.34 under SB 5720 were discussed in an earlier bulletin, Key Changes to the ITA. Members are encouraged to review that bulletin for additional changes to minors’ involuntary treatment, including especially (1) the ability to compel antipsychotic medication for minors in both inpatient and outpatient settings and (2) the expanded initial detention period from 72 hours to 120 hours.
In addition to the key changes outlined in WSHA’s Key Changes to the ITA bulletin, the most significant changes impacting the involuntary treatment of minors are changes confirming RCW 71.34 to the ITA. These changes include:
- Expanding the criteria for detention/commitment under “likelihood of serious harm”
- Requiring consideration of behavioral health history when evaluating whether to detain/commit a minor
- Allowing immediate family members, legal guardians or conservators to directly petition a court to detain a minor (a process also known as Joel’s Law);
- Requiring facilities to take reasonable precautions to look after a minor’s personal belongings;
- Clarifying that the initial 12-hour detention for evaluation by DCR starts after medical clearance;
- Authorizing peace officers to bring a minor to a facility for evaluation and treatment;
- Authorizing facilities to allow a minor patient to leave the facility for prescribed periods;
- Establishing a statutory duty to warn or protect third parties from threats of violence by the patient;
- Allowing the use of video to conduct involuntary treatment hearings; and
- Expanding the requirements for releasing a patient, to include a minor who has been arrested.
This bulletin reviews the above changes. It is not an exhaustive review of every change made to the statute.
- Detention/commitment criteria is expanded under “likelihood of serious harm”
SB 5720 now includes among the criteria for detaining or committing a minor for presenting a likelihood of serious harm, “the minor has threatened the physical safety of another and has a history of one or more violent acts.”
- A “history of one or more violent acts” is defined to mean the five years prior to the filing of the petition, excluding any time spent, but not any violent acts committed, in a mental health facility, a long-term alcoholism drug treatment facility, or in confinement as a result of a criminal conviction.
- “Violent act” means behavior that resulted in homicide, attempted suicide, injury, or substantial loss or damage to property.
These definitions are carried over from the ITA, except that the relevant time period for a minor patient’s history is 5 years (rather than the 10 years required for adults).
Note: SB 5720 makes several other important definitions changes. See Key Changes to the ITA.
- Past behavioral health history must be considered in deciding whether to detain/commit a minor
In light of the expanded criteria above and further alignment with the ITA, SB 5720 now requires consideration of minor’s history of behavioral health crises when evaluating whether to hold them for involuntary treatment, including repeated hospitalizations or law enforcement interventions. This will be relevant for purposes of the treating provider’s initial evaluation for referral to a DCR, and if and when a hospital petitions for 180-day treatment for a minor patient.
- When conducting their investigation, DCRs are required to consider a history of one of more violent acts and prior commitments, among other things.
- Symptoms or behavior which standing alone may not justify civil commitment may support a finding of grave disability or likelihood of serious harm when:
- They are closely associated with those that preceded and led to past incidents of involuntary hospitalization, severe deterioration or one or more violent acts;
- They represent a “marked and concerning change” in the baseline behavior of the minor; and
- Without treatment, the continued deterioration is probable.
- In considering whether to order an additional 180-day treatment, courts must give great weight to evidence of a prior history or pattern of decompensation and discontinuation of treatment resulting in repeated hospitalizations or repeated intervention by law enforcement resulting in juvenile charges.
- Hospitals must document and look after a minor’s personal belongings
SB 5720 carries over the requirement on Evaluation and Treatment facilities (E&Ts) and other facilities providing involuntary treatment to take “reasonable precautions to inventory and safeguard the personal property of the detained minor.”
Like the requirements for looking after adults’ belongings under the ITA, facilities must:
- Make an inventory and have the staff making it sign the document;
- Make a copy of the inventory and give to the detained minor;
- Make the inventory open to inspection to any responsible relative, including the guardian, conservator, attorney, parent or adult brother or sister of the minor; and,
- Not disclose the contents of the inventory to any other person without the minor’s consent or court order.
If a hospital is not already taking all of these steps, they must do so effective June 11, 2020.
- Joel’s Law is available—a minor’s family and guardians can petition a court to review an involuntary detention decision
Hospitals should expect parents to ask about Joel’s Law and request information about the process. Detailed information on the process is available here.
SB 5720 incorporates “Joel’s Law” from the ITA into RCW 71.34. This permits an immediate family member, guardian or conservator of a minor to petition to have the minor detained if a DCR decides not to detain the minor for evaluation and treatment or 48 hours have passed since a DCR received a request for investigation and no action was taken.
The same procedures that exist for Joel’s Law under the ITA now apply to the minor statute, as follows:
- The petition must be filed within 10 calendar days of a DCR investigation or request for DCR investigation;
- If more than 10 days have passed, the petitioner may request a new DCR investigation;
- The petition must be filed in the county in which the DCR investigation occurred/was requested to occur and submitted on specified court forms (available here);
- The petition must be accompanied by a sworn declaration from the petitioner, and other witnesses (optional), describing why the minor should be detained for evaluation and treatment and including details specified in statute (see RCW 71.05.201);
- The court will review the petition within one judicial day and in turn may require the DCR to provide a statement describing the basis for the decision not to detain and other relevant information;
- A behavioral health professional (and any other person) may submit a sworn declaration to the court in support of or in opposition to initial detention; and
- The court must issue a final ruling whether to detain the minor or require a petition for assisted outpatient behavioral health treatment, depending on circumstances prescribed in statute.
Crucially, apart from the processes above for how to initiate an initial detention, all subsequent procedures relating to involuntary detention and subsequent commitment apply as if the order for detention was made in the normal process.
Practically speaking, it is not clear whether the availability of Joel’s Law for minors will impact hospital operations or change access to inpatient behavioral health services. The same people who would have authority to bring a petition under Joel’s Law would also have authority to initiate evaluation and treatment on behalf of a minor under Family Initiated Treatment (FIT). However, there may be circumstances where involuntary treatment may be more appropriate to serve the patient’s needs and there is a disagreement about the necessity of such treatment.
Hospitals are encouraged to educate their staff in emergency departments and all units where they may receive minors in crisis that Joel’s Law is available to them as well as adults.
See WSHA’s bulletin on the Joel’s Law for more detailed considerations about the law and its impact on hospital operations.
- The 12-hour time period for DCRs to conduct an evaluation starts after medical clearance
Under existing law, the 12-hour timeframe for a DCR to conduct their evaluation was concurrent with obtaining medical clearance for minors. This had the effect of shrinking the timeframe for finding placement for the patient because the DCR was waiting for medical clearance prior to conducting their investigation. SB 5720 corrects that issue by clarifying that the 12-hour window doesn’t start until the minor has received medical clearance.
In addition, SB 5720 incorporates two related provisions from the ITA regarding the timing of medical clearance:
- Stating that violation of the timeliness requirements of the statute should not be remedied by dismissal of a petition “except in the few cases where the facility staff or the designated crisis responder have totally disregarded” the applicable requirements; and,
- Defining “medical clearance” to mean a physician or other health care provider has determined that a person the minor is medically stable and ready for referral to a DCR.
Hospitals should continue to seek medical clearance as expeditiously as possible in order to facilitate timely access to treatment for an acute behavioral health crisis.
- Peace officers may deliver a minor to hospital for evaluation and treatment
SB 5720 now authorizes a peace officer to take a minor or authorize the taking of a minor into custody and immediately deliver the minor to an E&T or the emergency department of a local hospital for evaluation and treatment if the officer “has reasonable cause to believe that such minor is suffering from a behavioral health disorder and presents an imminent likelihood of serious harm or is gravely disabled.”
SB 5720 does not carry over into RCW 71.34 the ITA’s definition of “imminent,” but it may be referred to, and is defined to mean “the state or condition of being likely to occur at any moment or near at hand, rather than distance or remote.”
- Facilities are authorized to issue “passes” to a minor receiving involuntary treatment
SB 5720 now permits a facility to allow a minor detained for “intensive treatment” to leave the facility for prescribed periods during the “detention,” under appropriate conditions.
The authority to allow a detained minor to leave the facility is permissive, not mandatory. Nothing in statute requires a facility to grant an involuntarily detained minor a pass. Provider judgment as to what is safe and appropriate in the circumstances of an individual patient will govern.
The phrase “intensive treatment” is not defined but it is used in the ITA to refer to inpatient hospitalization pursuant to a 14-day treatment order. WSHA’s interpretation is that treatment pursuant to a commitment order is the scenario this authority is intended to apply to, and not during an initial detention period—notwithstanding the reference to “detention” in statute.
- There is a statutory duty to warn or provide protection to third parties from a potentially violent minor patient
Under SB 5720, there is now a statutory duty to warn or provide protection to third parties who may be at risk of harm by the minor, evidenced by the minor communicating an actual threat of violence to a reasonably identifiable victim(s). The duty may be discharged by reasonable efforts to communicate the threat to the victim(s) and law enforcement personnel. This duty is in addition to the common law duty to protect third parties from the dangerous propensities of a patient.
The law on the duty to warn or protect is complex and unclear. In 2016, the Washington Supreme Court altered the scope of the duty to warn or protect in Volk v. DeMeerleer in ways that raises questions around applicability, operability and the rights of patients, including their right to privacy and confidentiality. Hospitals and providers are strongly encouraged to consult with their legal counsel and risk managers about how this statutory duty may apply.
- For guidance on the common law and statutory duty to warn or protect standards from WSHA, the Washington State Medical Association (WSMA) and Physicians Insurance, see here.
- For clinical best practices for providing care for patients who may present a risk of violence to others by the Bree Collaborative, see here.
- Use of video for hearings and other legal process changes
Under SB 5720, hearings relating to the involuntary treatment of minors may now be conducted by video. The petitioner, respondent, witnesses, interpreters and presiding judicial officer may be present and participate either in person or by video.
Requirements for proceeding by video include:
- The technology must permit the judicial officer, counsel, all parties and witnesses to be able to see, hear and speak, when authorized, during the hearing;
- The technology must allow attorneys to use exhibits and other materials during the hearing; and
- The technology must allow defense counsel to be in the same location as the patient unless otherwise requested by the patient or their attorney.
Witnesses may also appear through other means, including telephonically, pursuant to the requirements of superior court rule 43.
The court may require, on its own motion or upon motion for good cause by any party, all parties and witnesses to participate in person. In ruling on such motion, the court may allow in-person or video testimony.
COVID-19 considerations. The Washington Supreme Court has issued an Order governing civil commitment proceedings during the ongoing public health emergency (Order). That Order governs the hearings process now and should be followed until the state of emergency ends and/or the Order is rescinded. WSHA will communicate that change when it happens. In the meantime, hospitals are encouraged to review the Supreme Court’s Order for direction about civil commitment proceedings during COVID-19.
- E&Ts are required to hold a minor who has been arrested for up to 8 hours at the request of law enforcement
SB 5720 carryovers the requirement related to releasing a patient who has been arrested. For a minor who has been arrested but who is not admitted or will be released from inpatient evaluation and treatment, the facility must detain the minor for up to 8 hours at the request of a peace officer.
During this 8-hour window of time, SB 5720 also requires hospital to make reasonable attempts to contact the officer to inform them that the minor is not approved for admission and/or is being released—to allow the officer time to return and take the minor back into custody.
For background, RCW 71.34 sets out several requirements for releasing a minor who is not accepted for admission or who is released by an inpatient E&T, specifically:
- The facility must release the minor to the custody of the minor’s parent or other responsible person;
- The facility must provide transportation for the minor to the minor’s residence or other appropriate place, if transportation is not otherwise available;
- No indigent minor may be released to a less restrictive alternative treatment setting or discharged from impatient treatment without clothing (which may be provided by the Health Care Authority).
- Resources for reviewing SB 5720
This bulletin reviews certain changes specific to providing involuntary treatment to minors under SB 5720. It builds on the previous bulletin outlining the key changes to the law. It is not an exhaustive list. The 150-page bill amends several statutes, many with multiple versions with different effective dates within one section.
Hospital ITA teams are encouraged to review the new law in full for changes that may be relevant to their ITA programs.
To assist your review:
- SB 5720 in its entirety is available here.
- For a formatted version of SB 5720, including table of contents, see here.
- For an outline of the structure of SB 5720 that crosswalks the sections with the amended statutes and identifies the various expiry and effective dates, see here.
Involuntary treatment (or civil commitment) is one of several paths to accessing behavioral health services for minors under Chapter 71.34 RCW. Involuntary treatment is a legal process that can result in a court order for inpatient hospitalization or a less restrictive alternative, such as partial hospitalization, intensive outpatient treatment or outpatient treatment.
In addition to involuntary treatment, RCW 71.34 contemplates two other, non-legal paths: Adolescent Initiated Treatment, where the minor requests inpatient hospitalization and parent consent is not required; and, Family Initiated Treatment (FIT), where a “parent” may seek evaluation and treatment on behalf of their minor child and the minor’s consent is not required. FIT is the most likely alternative to involuntary commitment, although it raises other considerations such as the need to establish medical necessity and the need to compel antipsychotic medication. See here and here for more on FIT.
WSHA’s 2020 New Law Implementation Guide
Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.
- 71.05 RCW – Involuntary Treatment Act
- 71.34 RCW – Behavioral Health Services for Minors
- 2E2SSB 5720 – Concerning the Involuntary Treatment Act
Emergency order – Civil commitment proceedings during COVID-19
- Washington Supreme Court Order
- SB 5720 – Formatted with Table of Contents
- SB 5720 – Summary with amended statutes and effective dates
- Joel’s Law
- The Duty to Warn or Protect
- Family Initiated Treatment
- WSHA Bulletins on 2E2SSB5720
 “Peace officer” means a law enforcement official of a public agency or government unit, and includes a person specifically given peace officer powers by any state law, local ordinance, or judicial order of appropriation.
 Volk v. DeMeerleer 187 Wn.2d 241 (2016)
 Under RCW 71.34, “Adolescent” refers to a minor aged thirteen to seventeen.
4 Note: the definition of “parent” under the FIT laws is broad. Please refer to WSHA’s FIT Bulletin for additional information. See here.