05
SB56/AP
Senate
Bill 56
By:
Senators Thomas of the 54th, Unterman of the 45th, Harbison of the 15th, Hooks
of the 14th and Pearson of the 51st
AS
PASSED
AN
ACT
To
amend Chapter 14 of Title 31 of the Official Code of Georgia Annotated, relating
to hospitalization for tuberculosis, so as to revise a definition; to revise
obsolete references; to revise certain provisions relative to confinement of
patients committed for tuberculosis treatment; to revise certain provisions
relative to continuation of confinement of patients committed for tuberculosis
treatment; to provide for related matters; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
12 of Title 31 of the Official Code of Georgia Annotated, relating to
hospitalization for tuberculosis, is amended by striking such chapter in its
entirety and inserting in lieu thereof the following:
"31-14-1.
(a)
As used in this chapter, the term 'active tuberculosis' means a diagnosis
demonstrated by clinical, bacteriologic, or diagnostic imaging evidence, or a
combination thereof. Persons who have been diagnosed as having active
tuberculosis and have not completed a course of antituberculosis treatment are
still considered to have active tuberculosis and may be infectious.
(b)
Active tuberculosis is declared to be dangerous to the public
health.
31-14-2.
When
the county board of health or the Department of Human Resources has evidence
that any person has active tuberculosis and is violating the rules and
regulations promulgated by the department or the orders issued by the county
board of health and thereby presents a substantial risk of exposing other
persons to an imminent danger of infection, after having been directed by the
county board of health or the department to comply with such rules, regulations,
or orders, the county board of health or the department shall institute
proceedings by petition for commitment, returnable to the superior court of the
county wherein such person resides or, if such person is a nonresident or has no
fixed place of abode, in the county wherein such person may be found. The
petition executed under oath shall state the specific evidence supporting the
allegations, that the evidence has existed within the preceding 30 days, that
the person named therein has active tuberculosis and is violating the rules and
regulations of the department or the orders of the county board of health and
presents a substantial risk of exposing other persons to an imminent danger of
infection, after having been directed by the county board of health or
department to comply with such rules, regulations, or orders, and that the
public health requires commitment of the person named therein. The petition must
be accompanied by a certificate of a physician stating that the physician knows
or suspects that the person named therein may have active tuberculosis, the
evidence which forms the basis of this opinion, and whether a full evaluation of
the person is necessary.
31-14-3.
(a)
Immediately upon the filing of a petition pursuant to Code Section 31-14-2, the
judge of the superior court shall set the matter for a full and fair hearing on
the petition. Such hearing shall be held no sooner than seven days and no later
than 12 days, excluding Saturdays, Sundays, and holidays, subsequent to the time
of filing of the petition. The court shall serve personal notice of the hearing
upon the person named in the petition and upon the petitioner. The notice
required by this Code section shall include the time and place of the hearing;
notice of the person´s right to counsel, that the person may apply for
court appointed counsel if the person cannot afford counsel, and that the court
will appoint counsel unless the person indicates in writing that he or she does
not wish to be represented by counsel; and notice that the person may waive his
or her rights to a hearing under this Code section. A copy of the petition and
physician´s certificate filed under Code Section 31-14-2 shall be attached
to the notice. The judge shall, where prayed for in the petition, provide for
the examination of the person named therein by a physician licensed under
Chapter 34 of Title 43, which examination shall include sputum examinations by a
laboratory approved by the department and a recent chest X-ray of good
diagnostic quality interpreted by a physician licensed to practice under Chapter
34 of Title 43, as a part of the order setting the matter for hearing; the order
shall require the person or persons named therein to make such examination. Any
X-ray and accompanying report or any written report as to a sputum examination
shall be admissible as evidence without the necessity of the personal testimony
of the person or persons making such examination and report. A physician may
rely upon this evidence as the basis for the diagnosis of active tuberculosis
and the defendant may offer opposing evidence on this issue by testimony or
otherwise. All court costs incurred in proceedings under this chapter, including
costs of examinations required by order of court but excluding any examinations
procured by the person named in the petition, shall be borne by the county
wherein the proceedings are brought. The fee to be paid to an attorney appointed
under this Code section to represent a person who cannot afford counsel shall be
paid by the county board of health instituting proceedings for
commitment.
(b)
A full and fair hearing shall mean a proceeding before a hearing examiner under
Code Section 31-14-8.1 or before the superior court in a proceeding under
subsection (a) of this Code section. The hearing may be held in a regular court
room or in an informal setting, in the discretion of the hearing examiner or the
court, but the hearing shall be recorded electronically or by a qualified court
reporter. The person named as defendant shall be provided with the opportunity
for the assistance of counsel. If the defendant cannot afford counsel, the court
shall appoint counsel for the defendant or the hearing examiner shall request
that the court appoint such counsel; provided, however, that the defendant shall
have the right to refuse in writing appointment of counsel. Both parties shall
have the right to confront and cross-examine witnesses, to offer evidence, and
to subpoena witnesses. Both parties shall have the right to require testimony
before the hearing examiner or in court in person or by deposition from any
physician upon whose evaluation the decision of the hearing examiner or the
court may rest. The hearing examiner and the court shall apply the rules of
evidence applicable in civil cases, except as otherwise provided for in this
chapter. The burden of proof shall be upon the party seeking commitment of the
defendant. The standard of proof shall be by clear and convincing evidence. At
the request of the defendant, the public may be excluded from the hearing. The
defendant may waive his or her right to be present at the hearing. The reason
for the action of the court or the hearing examiner in excluding the public or
permitting the hearing to proceed in the defendant´s absence shall be
reflected in the record.
31-14-4.
A
copy of the petition and order shall be served on the person named in the
petition. Any failure of such person to comply with the order or with the notice
by the persons appointed therein to make examination shall be enforceable by
attachment for contempt.
31-14-5.
Where
a danger exists that the person named in the petition may abscond or conceal
himself or herself or where the person is conducting himself or herself so as to
present a substantial risk of exposing other persons to an imminent danger of
infection, the court may, as a part of the order made pursuant to Code Section
31-14-3, direct the sheriff or the sheriff´s deputies to take such person
into custody pending hearing and impose such confinement as will not endanger
other persons. An affidavit shall be attached to the petition containing the
specific facts supporting the need for custody pending hearing.
31-14-6.
The
person or persons appointed by the order to make the examination shall file a
report thereof, in triplicate, in the court wherein the proceeding is pending.
The clerk of the superior court shall forthwith make service of one copy on the
agency instituting the proceeding and one copy on the party named as defendant
therein and the defendant´s attorney, which service shall be personal or by
certified mail or statutory overnight delivery.
31-14-7.
(a)
Upon the hearing set in the order, if the court finds that the person has active
tuberculosis, is violating the rules and regulations promulgated by the
department or the orders issued by the county board of health after having been
directed by the county board of health or the department to comply with such
rules, regulations, or orders, presents a substantial risk of exposing other
persons to an imminent danger of infection, and there is no less restrictive
available alternative to involuntary treatment at a hospital or facility
approved by the department for the care of tubercular patients, then the court
shall issue an order committing the defendant to the custody of the sheriff of
the county or the sheriff´s deputies to be delivered to the designated
hospital or facility, where the defendant shall be admitted for care and
treatment not to exceed two years. If the court does not find that the above
standards are met, then the court shall dismiss the petition and the defendant
shall be released from custody if taken into custody pursuant to Code Section
31-14-5. The costs of transporting such person to the hospital or facility shall
be paid out of county funds.
(b)
An order for commitment shall be subject to review at the instance of either
party by appeal.
31-14-8.
Upon
commitment the patient shall be confined in a hospital or facility approved by
the department for the care of tubercular patients for a period not to exceed
two years unless, before the expiration of such two-year period, the designated
responsible physician of the tuberculosis inpatient unit determines that the
following conditions no longer exist:
(1)
The patient has active tuberculosis; or
(2)
The patient has active tuberculosis and there is a substantial likelihood of
future noncompliance with a proposed treatment plan which will predictably lead
to the development of infectious drug-resistant tuberculosis. The likelihood of
noncompliance must be based upon a history of noncompliance with treatment;
provided, however, that short emergency leaves in the event of death or critical
illness in the family or short therapeutic leaves may be granted under
conditions which would not adversely affect the public health and in accordance
with rules and regulations established by the department.
31-14-8.1.
(a)
If it is necessary to continue confinement of a committed patient beyond a
period of two years ordered by a court or hearing examiner or authorized under
subsection (d) of this Code section, the designated responsible physician of the
tuberculosis inpatient unit shall review and update the patient´s treatment
plan and shall prepare a report giving evidence of the necessity of such
continued confinement. The report shall be prepared so as to allow sufficient
time for the hearing authorized by this Code section to be conducted before the
expiration of the two-year period of confinement. The report shall specify that,
based upon clinical or X-ray evidence:
(1)
The patient is a person having active tuberculosis requiring continued
commitment; or
(2)
The patient is a person having active tuberculosis with a substantial likelihood
of future noncompliance with a proposed treatment plan which will predictably
lead to the development of infectious drug-resistant tuberculosis. The
likelihood of noncompliance must be based upon a history of noncompliance with
treatment.
(b)
Such report shall be filed in the patient´s medical record. A copy of the
report shall be personally served on the patient along with a statement that the
patient may, within 15 days after service of the report, file a request for a
hearing to be conducted in accordance with the procedure for contested cases
under Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' except
as otherwise provided in this chapter, that the patient has a right to counsel
at the hearing, that the patient may apply immediately to the superior court in
the county where the committed patient is confined to have counsel appointed if
the patient cannot afford counsel, and that the court will appoint counsel for
the patient unless the patient indicates in writing that he or she does not
desire to be represented by counsel or has made his or her own arrangements for
counsel. Payment for such court appointed representation shall be made by the
department. The hearing may be continued as necessary to allow the appointment
of counsel.
(c)
If a hearing is requested within 15 days of service of the report on the
patient, the hearing examiner shall set a time and place for the hearing to be
held within 15 days of the time the hearing examiner receives the request. The
hearing examiner may set a hearing if a request is made later than 15 days after
service of the report if good cause is shown for the delay in making the
request. Notice of the hearing shall be personally served on the patient, the
hospital or facility, and, when appropriate, on counsel for the patient. Such
hearing shall be a full and fair hearing, as described in Code Section 31-14-3,
before a hearing examiner. After such hearing, the hearing examiner may issue
any order which the court is authorized to issue under Code Section
31-14-7.
(d)
If a hearing is not requested within 15 days of service of the report on the
patient, the department shall be authorized to continue confinement of the
patient for an additional period not to exceed six months.
31-14-8.2.
Either
party may appeal any order of the superior court or hearing examiner in a
proceeding under this chapter. An order of the superior court may be appealed to
the Court of Appeals and the Supreme Court as provided by law but shall be heard
as expeditiously as possible. The appeal of an order of a hearing examiner shall
be to the superior court of the county in which the proceeding was held. The
review shall be conducted by the superior court without a jury and shall be
confined to the record. The court, upon request, may hear oral argument and
receive written briefs. The patient must pay his or her costs upon filing any
appeal authorized under this Code section or must make an affidavit that he or
she is unable to pay costs. The parties shall retain all rights of review of any
order of the superior court, the Court of Appeals, and the Supreme Court, as
provided by law. The patient shall have a right to counsel on appeal or, if
unable to afford counsel, shall have counsel appointed for the patient by the
court. The appeal rights provided in this Code section are in addition to any
other appeal rights which the parties may have.
31-14-9.
(a)
At any time after commitment and not more often than once every six months, the
patient or any friend or relative having reason to believe that the patient no
longer has active tuberculosis or that the patient´s discharge will not
endanger the public health may institute proceedings by petition in the superior
court of the county wherein the confinement exists, whereupon the judge shall
set the matter for a hearing to occur within 15 days requiring the person or
persons to whose care the patient was committed, or their duly authorized
agents, to show cause on a day certain why the patient should not be discharged.
The judge shall also require that the patient be allowed the right to be
examined prior to the hearing by a licensed physician of the patient´s own
choice and at the patient´s own personal expense. Thereafter all
proceedings shall be conducted in the same manner as are proceedings for
commitment.
(b)
In addition to the above procedure for securing discharge, the patient or a
friend or relative on behalf of such person may petition, as provided by law,
for a writ of habeas corpus to question the cause and legality of detention and
to request a court of competent jurisdiction to issue a writ for release,
provided that a copy of the petition along with the proper certificate of
service shall also be served upon the presiding judge of the court ordering such
detention and upon the county board of health or the Department of Human
Resources which initiated the petition for commitment pursuant to Code Section
31-14-2, which service shall be made by certified mail or statutory overnight
delivery.
31-14-10.
The
county boards of health or their duly authorized agents shall, within their
respective limits, enforce rules and regulations adopted by the department for
the protection of the public against active tuberculosis.
31-14-11.
Any
person who leaves a hospital or facility approved by the department for the
treatment of tuberculosis to which he or she has been committed by court order,
without having been discharged by the medical staff of the tuberculosis
inpatient unit or the community tuberculosis control unit, shall be taken into
custody and returned thereto by the sheriff of any county where such person may
be found, upon affidavit being filed with the sheriff by the designated
responsible official of the hospital or facility to which such person has been
committed.
31-14-12.
No
person having active tuberculosis who, in his or her home or other place, obeys
the rules and regulations of the department and county boards of health for the
control of active tuberculosis or who voluntarily accepts care in a hospital or
facility operated for the care of tuberculosis, in his or her home, or in
another place and who obeys the rules and regulations of the department and
completes the prescribed course of therapy for the control of active
tuberculosis shall be committed as prescribed in this chapter.
31-14-13.
(a)
In lieu of the petition for commitment as authorized by Code Section 31-14-2,
the county board of health or the department may petition the court for an order
directing the person to comply with a plan of evaluation or outpatient
treatment. The department may also petition the court for an order directing the
parents, guardians, or custodians of persons under the age of 18 who have been
exposed to tuberculosis to allow screening for tuberculosis by public health
authorities or to provide evidence of such screening by a licensed physician.
Proceedings, evidence, and hearings thereon will be in the same manner as with
commitment petitions, and upon the hearing the court may dismiss the petition or
order the person to comply with the screening, evaluation, or outpatient
treatment plan. The court may also modify the plan prior to ordering
compliance.
(b)
A petition for outpatient treatment as authorized by subsection (a) of this Code
section may also be initiated by a county board of health or the department
where a previously hospitalized, diagnosed, or committed patient´s
condition no longer requires hospitalization or commitment but where protection
of the public health requires continued treatment on an outpatient basis of said
patient.
(c)
Any person known or suspected to have tuberculosis who fails to comply with a
plan of evaluation or outpatient treatment ordered pursuant to this Code
section, or any parent, guardian, or custodian of a person under the age of 18
who fails to comply with screening ordered pursuant to this Code section or who
aids or abets such failure may be punished as for contempt. Contempt proceedings
may be initiated by the filing of a petition by the county board of health or by
the department with the superior court of the county of the patient´s
residence or the county where the patient may be found if a nonresident or
without a fixed place of abode.
31-14-14.
Any
physician, peace officer, attorney, or health official, or any hospital or
facility official, agent, or other person employed by a private hospital or
facility or at a hospital or facility operated by the state, by a political
subdivision of the state, by a county board of health, or by a hospital
authority created pursuant to Article 4 of Chapter 7 of Title 31, who acts in
good faith in compliance with the admission and discharge provisions of this
chapter shall be immune from civil or criminal liability for his or her actions
in connection with the admission of a patient to or the discharge of a patient
from a hospital or facility approved by the department for the care of
tubercular
patients."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.