Legal regulation of implementation of measures associated with compulsory medical treatment in certain US states

Solovyev Andrey Aleksandrovich ORCID: 0000-0002-4305-9286 Doctor of Law Deputy President of the Commercial Court of Moscow region; Professor at Kutafin Moscow State Law University; Professor at Moscow State Pedagogical University  107053, Russia, Moscow, Akademika Sakharova Avenue, 18 sportlaw2014@rambler.ru Other publications by this author

Continuing the study of various models of legal regulation of administrative and judicial procedures related to compulsory medical intervention ^[1-5], let us consider the experience of the United States of America, where reference legal regulation is available in state legislation.

Having studied in detail the legal regulation in the state of Texas ^[6-7], we will focus on the examples of the states of Connecticut, Maine and Florida

The legislation of the State of Connecticut provides for the possibility of applying measures related to compulsory medical intervention to persons suffering from alcohol or drug addiction, subject to certain conditions.

Thus, the relevant norms are contained in article 17a-685 of Chapter 19j of Title 17a of the Code of General Laws of the State of Connecticut ^[8].

Any person, including a spouse, relative or guardian of an individual, in relation to whom measures related to compulsory medical intervention are subject to application, as well as a doctor or administrator of a relevant medical institution, has the right to apply to the inheritance court in order to refer a person to a hospital of a medical institution for the treatment of alcohol or drug addiction.

The relevant application must indicate that the person suffers from alcohol or drug addiction and in a state of alcohol or drug intoxication is dangerous for himself or for other persons or is incapacitated.

Also, the application must contain information that the applicant has provided the opportunity to undergo treatment in an appropriate medical institution, confirmation of which from the institution itself must also be attached to the submitted application.

In addition, during the hearing on the case or before it, a certificate of examination of a person by a doctor is submitted to the court, which was carried out within 2 days before filing an application to the court. This document should contain, in particular, the following information:

- conclusions of the doctor who examined the patient, including clinical studies, or the patient's medical history;

- the conclusion that the patient currently needs appropriate treatment;

- doctor's recommendations regarding the type and duration of such treatment.

The court appoints the date of the hearing, which must be held no later than 7 days after the filing of the application.

If, after considering all relevant evidence, including the results of diagnostic examinations, the court comes to the conclusion that the individual acting as a defendant at this hearing is a person dependent on alcohol or narcotic substances, who in a state of alcoholic or narcotic intoxication is dangerous for himself or for other persons, or his capabilities in such a state are significantly limited, then in this case, the court must decide on the application of measures related to compulsory medical intervention to the individual in the form of treatment in a hospital for a period of at least 30 days and no more than 180 days.

After the expiration of the specified period, the person must be automatically discharged from the relevant medical institution, except in cases when, before the expiration of this period, the administrator of such institution applies for a court decision to extend such maintenance.

The administrator of the medical institution in which the patient is undergoing compulsory inpatient treatment, before the expiration of such treatment, has the right, on the recommendation of a medical professional, to apply to the court with an application for its extension. The application must indicate that the patient suffers from alcohol or drug addiction, needs further inpatient treatment and, probably, the passage of such treatment will benefit him.

In this case, the date of the hearing in the case must be set by the court no later than ten days after the adoption of the said application. In addition, the patient himself, his next of kin, his parents or legal guardians, as well as other persons, if necessary, must be notified of this no later than 7 days before the procedure.

If, after considering all relevant evidence, including the results of diagnostic examinations, the court concludes that the defendant is a person dependent on alcohol or narcotic substances, needs further inpatient treatment and, probably, the passage of such treatment will benefit him, then in this case the court must decide on the application of measures to the individual related to compulsory medical intervention, in the form of treatment in a hospital for a period of not less than 30 days and not more than 180 days. At the same time, the court does not have the right to extend the term of compulsory treatment in this way, unless it comes to the conclusion that the medical institution can provide adequate and appropriate treatment that will be useful for the patient.

The issues we are considering are also regulated by the provisions of paragraph 3863 of the Code of Revised Laws of the State of Maine ^[9].

A doctor, a law enforcement officer or another person has the right to apply for the placement of a person in a psychiatric hospital if the applicant is convinced that such an individual is mentally ill and, therefore, there is a possibility of causing serious harm to them.

The corresponding written application must be accompanied by a document signed by a medical specialist, which will indicate the following:

- that a medical practitioner examined the individual at the time of writing this document;

- that a medical practitioner has concluded that an individual is mentally ill and therefore poses a serious risk of harm (the document must also contain an indication of the grounds for such conclusions; in particular, they may be based on personal observation, medical history, as well as information from other sources which a medical specialist will consider reliable, for example, on information received from family members of an individual, but not limited to her only);

- that the available resources are insufficient to care for such a mentally ill person and to treat his mental illness in another way.

The said application and the document signed by the medical practitioner must be reviewed by a judge of the Maine Supreme Court, a District Court judge or a justice of the peace.

If the judge comes to the conclusion that the application and the document on the examination of the individual are justified and comply with the law, the judge is obliged to approve them and immediately send the individual to a psychiatric hospital.

It also provides that a person cannot be held against his will in a medical institution, except in cases when he has been examined by a medical specialist for the need to keep him in a medical institution. However, even in this case, the individual must be held for a reasonable period, the duration of which cannot exceed 24 hours, pending the judge's decision.

In this case, the period of detention of a person in a psychiatric medical institution may be extended by an additional reasonable period, the duration of which should not exceed 48 hours, subject to the following conditions:

- if the medical institution has made an assessment of the person's condition, the results of which concluded that there is a possibility of causing serious harm to the person due to his mental illness;

- if the medical institution, having made every effort, could not find an affordable place in a hospital, psychiatric hospital or other suitable alternative;

- if the medical institution has notified the health department of the name of the person, his location, as well as the person who performed the examination of this individual, and the time when the individual was taken to the medical institution.

This period may be extended for another 48 hours in exceptional cases and subject to compliance with all the above conditions.

Also, the conditions for extending the period of compulsory hospitalization of an individual are normatively established. So, if there is a need for further hospitalization of a person, which is determined by the chief administrative officer of a medical institution, the latter must first determine whether it is possible to extend the hospitalization of a person on a voluntary basis. If this is not possible, the chief administrative Officer of the medical institution applies to the district court for a decision on the application of measures related to compulsory medical intervention.

The probability of causing serious harm in this case means the following:

- a significant risk of causing physical harm by a person to himself, which is confirmed by recent threats or attempts to commit suicide or causing serious harm to his health;

- a significant risk of causing physical harm to other persons, which manifests itself in the form of recent violent behavior or such recent behavior of a person as a result of which other persons have been exposed to a reasonable risk of causing serious physical harm;

- reasonable assurance that a person will suffer significant physical or mental damage due to his recent behavior demonstrating an inability to avoid risk or injury.

Chapter 392 "Fight against tuberculosis" of Title XXIX "Public Health" of the Code of Laws of the State of Florida ^[10] contains provisions providing for administrative and judicial procedures for compulsory medical intervention in order to protect the population from active forms of tuberculosis.

Thus, if cases of tuberculosis are detected within 72 hours after that, the relevant information is reported to the Health Department, which has the right to take certain measures against patients with active tuberculosis.

The Department of Health and its representatives have the right to apply to the district court with an application for the issuance of an order for the examination or treatment of a person who is sick or suspected of having an active form of tuberculosis, or a person who may have been infected with this disease.

The above-mentioned person must inform the appropriate doctor that he has passed the examination or completed the necessary treatment, in order to avoid applying these measures to him.

Without his consent, a person who has or is suspected to have an active form of tuberculosis may be subjected to medical examinations and treatment solely on the basis of a district court order.

By submitting the above application to the District Court, the Department of Health is obliged to prove that:

- in case of refusal to satisfy the relevant application, there will be a threat to public health;

- all other measures to ensure that a person complies with the procedure for treating his illness have been exhausted;

- there is no possibility of applying less restrictive measures to achieve the desired result.

The person must be notified of the court session regarding his situation at least 72 hours in advance (with his consent, the meeting may be held earlier).

The Department of Health has the right to apply to the district court to issue a decree on the compulsory hospitalization of a person with an active form of tuberculosis to a hospital, or on his placement in another medical institution or in another institution intended for residence, or on the isolation of such a person from society to prevent the likely spread of tuberculosis until the risk of infection for a wide range of individuals will not be eliminated or reduced in such a way that the threat to public health no longer exists.

At the same time , such measures can be taken against a person only on the basis of a district court decision and if the following important conditions are mandatory in combination:

- The Department of Health has clearly and convincingly proved that a person with an active form of tuberculosis poses a threat to public health;

- there is evidence that a person with an active form of tuberculosis has been consulted about this disease, the threat to the health of others caused by tuberculosis, and methods to minimize the risk to the population. However, despite such counseling, the behavior of this person allows us to conclude that he intends to spread the disease among others;

- all other reasonable means to ensure compliance with the treatment regime of this person have been exhausted and there is no other, less stringent alternative.

A person with an active form of tuberculosis must be notified of the hearings in the district court at least 72 hours before they are held, as well as receive a list of measures proposed for implementation in relation to him and their justification. At the same time, with the consent of this person or his lawyer, the hearing may be held in less than 72 hours.

A person against whom an application has been filed by the Department of Health has the right to attend the hearing, ask questions to witnesses and present evidence. After appropriate consultations, the lawyer of this person has the right to refuse the presence of his client at the court session or to use videoconferencing facilities, if possible.

The validity period of a court order on the hospitalization of a patient with an active form of tuberculosis in a medical institution or other institution or on his isolation from society is 180 days from the date of its publication. Also, the person concerned may be discharged or released earlier than this date if the attending physician determines that he no longer poses a threat to public health.

The regulatory legal act under consideration also provides for the possibility of extending the specified period. To do this, a court hearing is held within 14 days before the expiration of the 180-day period, the purpose of which is to determine the need to continue hospitalization of a person. The hearing may also consider issues related to the necessary care and treatment of a person after his discharge or release.

The District Court, the lawyer, and local law enforcement officials should, if necessary, consult with the Department of Health regarding any necessary infection control procedures to be implemented during the court hearing on the case or during the hospitalization or isolation of the person concerned.

Also pay attention to the following procedure.

If the attending physician believes that, leaving the place of treatment, a person who has or is suspected to have an active form of tuberculosis will pose a threat to public health (based on the results of the examination of this person or his medical history), and the doctor has reason to believe that the person is unlikely to appear at the relevant court hearing, in this case the doctor applies to an authorized official in the field of healthcare to issue an order on the detention of such a person. On its basis, the sheriff of the relevant district detains the person and takes him to a medical facility.

In such a case, a person may be forcibly detained for examination and treatment for a period not exceeding 72 hours, during which the above-mentioned application is submitted to the district court.

In conclusion, it should be noted that the legislation of the US states studied by us is a fairly effective combination of administrative and judicial procedures related to compulsory medical intervention.