05 LC 33
0594
Senate
Bill 56
By:
Senators Thomas of the 54th, Unterman of the 45th, Harbison of the 15th, Hooks
of the 14th, Pearson of the 51st and others
A
BILL TO BE ENTITLED
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
'contagious
active
tuberculosis' means
tuberculosis
in a form in which tubercle bacilli are being discharged whether continuously or
at irregular intervals. The term shall have the same meaning as 'infectious
tuberculosis' and 'communicable
tuberculosis.'
a diagnosis
based on:
(1)
A positive sputum smear or culture from a pulmonary or laryngeal case where the
person has not completed treatment;
(2)
A positive sputum smear or culture from an extra pulmonary case with clinical
suspicion of pulmonary tuberculosis where the person has not completed
treatment; or
(3)
Unavailable sputum smears or cultures, but where chest X-rays, clinical
evidence, and other laboratory tests are sufficient to make a tuberculosis
diagnosis where treatment is indicated.
(b)
Contagious
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
contagious
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
contagious
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
contagious
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
contagious
active
tuberculosis and the defendant may offer opposing evidence on this issue by
testimony or otherwise.
A diagnosis
of contagious tuberculosis does not in and of itself establish a substantial
risk of exposing other persons to an imminent danger of
infection. 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
contagious
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
Northwest Georgia Regional Hospital or any other hospital as may
be
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
six
months
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
the
Northwest Georgia Regional Hospital or such other hospital as may
be
a hospital or
facility approved by the department for
the care of tubercular patients for a period not to exceed
six
months
two
years unless, before the expiration of
such
six-month
two-year
period, the designated responsible
physician of the tuberculosis inpatient unit determines that the following
conditions no longer exist:
(1)
The patient has
contagious
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
a prior
commitment followed by noncompliance with
outpatient
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
six
months
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
six-month
two-year
period of confinement. The report shall
specify that, based upon clinical or X-ray evidence:
(1)
The patient is a person having
contagious
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
a prior
commitment followed by noncompliance with
outpatient
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
contagious
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
contagious
active
tuberculosis.
31-14-11.
Any
person who leaves a
hospital or
facility
operated
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
contagious
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
contagious
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
contagious
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.