§704-413 Conditional release; application for modification or discharge; termination of conditional release and commitment. (1) Any person granted conditional release pursuant to this chapter shall continue to receive mental health or other treatment and care deemed appropriate by the director of health until discharged from conditional release. The person shall follow all prescribed treatments and take all prescribed medications according to the instructions of the person's treating mental health professional. If a mental health professional who is treating a person granted conditional release believes that either the person is not complying with the requirements of this section or there is other evidence that hospitalization is appropriate, the mental health professional shall report the matter to the probation officer of the person granted conditional release. The probation officer may order the person granted conditional release to be hospitalized for a period not to exceed seventy-two hours if the probation officer has probable cause to believe the person has violated the requirements of this subsection. No person shall be hospitalized beyond the seventy-two-hour period, as computed pursuant to section 1-29, unless a hearing has been held pursuant to subsection (4); provided that on or before the expiration of the seventy-two-hour period, a court may conduct a hearing to determine whether the person would benefit from further hospitalization, which may render a revocation of conditional release unnecessary. If satisfied, the court may order further temporary hospitalization for a period not to exceed ninety days, subject to extension as appropriate, but in no event for a period longer than one year. At any time within that period, the court may determine that a hearing pursuant to subsection (4) should be conducted.
(2) The director of health may apply to the court ordering any person released pursuant to this chapter, for the person's discharge from, or modification of, the order granting conditional release; provided that the person receives community-based mental health services from or contracted by the department of health, and the director is of the opinion that the person on conditional release is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The director shall make an application for the discharge from, or modification of, the order of conditional release in a report to the circuit from which the order was issued. The director shall transmit a copy of the application and report to the prosecuting attorney of the county from which the conditional release order was issued, to the person's treating mental health professionals, and to the probation officer supervising the conditional release. The person on conditional release shall be given notice of the application.
(3) Any person granted conditional release pursuant to this chapter may apply to the court ordering the conditional release for discharge from, or modification of, the order granting conditional release on the ground that the person is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The application shall be accompanied by a letter from or supporting affidavit of a qualified physician or licensed psychologist. A copy of the application and letter or affidavit shall be transmitted to the prosecuting attorney of the circuit from which the order issued and to any persons supervising the release, and the hearing on the application shall be held following notice to such persons. If the court denies the application, the person shall not be permitted to file another application for either discharge or modification of conditional release until one year after the date of the denial.
(4) If, at any time after the order pursuant to this chapter granting conditional release, the court determines, after hearing evidence, that:
(a) The person is still affected by a physical or mental disease, disorder, or defect, and the conditions of release have not been fulfilled; or
(b) For the safety of the person or others, the person's conditional release should be revoked,
the court may forthwith modify the conditions of release or order the person to be committed to the custody of the director of health, subject to discharge or release in accordance with the procedure prescribed in section 704-412.
(5) Upon application for discharge from, or modification of, the order of conditional release by either the director of health or the person, the court shall complete the hearing process and render a decision within sixty days of the application, provided that for good cause the court may extend the sixty day time frame upon the request of the director of health or the person. [L 1972, c 9, pt of §1; am L 1983, c 189, §1; am L 1988, c 305, §8; am L 1997, c 306, §4; am L 2006, c 230, §12; am L 2008, c 100, §5]
COMMENTARY ON §704-413
What has been said in the commentary to §704-412 applies with equal force to applications, by a person released on condition, for discharge or for modification of conditions of release. The criterion of dangerousness is still applicable.
Subsection (2) limits the time during which a person released on condition remains subject to recommitment.
SUPPLEMENTAL COMMENTARY ON §704-413
Act 189, Session Laws 1983, added a new subsection (1) which requires continued psychological or psychiatric treatment of persons conditionally released after being committed pursuant to §704-411. Assurance of continued treatment was felt necessary for the safety and welfare of both the community and the person conditionally released. This section was further amended to provide for the recommittal of persons conditionally released or the modification of the conditions of their release. Senate Conference Committee Report No. 26.
Act 305, Session Laws 1988, included licensed psychologists among the professionals which may provide offender examination services to the Hawaii criminal justice system. The legislature stated that the present laws, which permit only psychiatric evaluation, are inconsistent with the many and varied uses the court has found for the services of licensed psychologists. Senate Standing Committee Report No. 2153.
Act 306, Session Laws 1997, amended this section to require that any person released on condition pursuant to §704-411 shall receive mental health or other appropriate treatment and care until discharged from conditional release. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Senate Standing Committee Report No. 98.
Act 230, Session Laws 2006, amended this section, among others, to ensure that the person's physical or mental disease, disorder, or defect is considered in commitment and release provisions. House Standing Committee Report No. 665-06.
Act 100, Session Laws 2008, amended this section by, among other things, providing an alternative of further temporary hospitalization through a court hearing rather than proceeding immediately to a revocation of a person's conditional release when the person is in violation of the conditions of the conditional release. House Standing Committee Report No. 1133-08.
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