§ 23-10-6 - Quarantine for treatment of actively or chronically diseased persons.
SECTION 23-10-6
§ 23-10-6 Quarantine for treatment ofactively or chronically diseased persons. – (a) For the purposes of this section, a person has active tuberculosis when:(1) a sputum smear or culture taken from a pulmonary, laryngeal, or othersource has tested positive for tuberculosis and the person has not completed anappropriate prescribed course of medication for tuberculosis, or (2) a smear orculture from an extra-pulmonary source has tested positive for tuberculosis andthere is clinical evidence or clinical suspicion of pulmonary tuberculosisdisease and the person has not completed an appropriate prescribed course ofmedication for tuberculosis. A person also has active tuberculosis when, inthose cases where sputum smears or cultures are unobtainable, the radiographicevidence, in addition to current clinical evidence and/or laboratory tests, issufficient to establish a medical diagnosis of tuberculosis for which treatmentis indicated.
(b) Where the director determines that the public health orthe health of any other person is endangered by a case of tuberculosis, or asuspected case of tuberculosis, the director may issue any appropriate ordersnecessary to protect the public health or the health of any other person inaccordance with this chapter, and may make application to a court forenforcement of any appropriate orders. In any court proceeding for enforcement,the director shall demonstrate the particularized circumstances constitutingthe necessity for an order. Detention shall not be authorized until allless-restrictive alternatives have been tried and no less-restrictivealternative is available. Those orders may include, but shall not be limited to:
(1) An order authorizing the removal to and/or detention in ahospital or other treatment facility for appropriate examination fortuberculosis of a person who has active tuberculosis or who is suspected ofhaving active tuberculosis and who is unable or unwilling to voluntarily submitto an appropriate examination by a physician or by the department;
(2) An order requiring a person who has active tuberculosisto complete an appropriate prescribed course of medication for tuberculosisand, if necessary, to follow required contagion precautions for tuberculosis;
(3) An order requiring a person who has active tuberculosisand who is unable or unwilling otherwise to complete an appropriate prescribedcourse of medication for tuberculosis to follow a course of directly observedtherapy. For the purposes of this provision, "directly observed therapy" meansa course of treatment for tuberculosis in which the prescribedanti-tuberculosis medication is administered to the person or taken by theperson under direct observation as specified by the department;
(4) An order for the removal to and/or detention in ahospital or other treatment facility of a person: (i) who has activetuberculosis that is infectious or who presents a substantial likelihood ofhaving active tuberculosis that is infectious, based upon epidemiologicevidence, clinical evidence, x-ray readings, or laboratory test results; and(ii) where the department finds, based on recognized infection controlprinciples, that there is a substantial likelihood the person may transmit toothers tuberculosis because of his or her inadequate separation from others; or
(5) An order for the removal to and/or detention in ahospital or other treatment facility of a person: (i) who has activetuberculosis, or who has been reported to the department as having activetuberculosis with no subsequent report to the department of the completion ofan appropriate prescribed course of medication for tuberculosis; and (ii) wherethere is a substantial likelihood that the person poses a significant risk ofharm to others and who refuses to report for treatment or who refuses tocontinue or complete treatment for tuberculosis, until the director determinesthat the person is no longer a danger to the public.
(c) After two (2) licensed physicians, including at least oneboard certified pulmonary or infectious disease specialist, have certified thediagnosis of tuberculosis, the director may remove to or detain in a hospitalor other place for examination or treatment a person who is the subject of anorder of removal or detention issued pursuant to subsection (a) without priorcourt order; provided, however, that when a person detained pursuant tosubsection (a) has requested release, the director shall make an applicationfor a court order authorizing detention within seventy-two (72) hours after arelease request, or, if the seventy-two (72) hour period ends on a Saturday,Sunday or legal holiday, by the end of the first business day following theSaturday, Sunday or legal holiday, which application shall include a requestfor an expedited hearing. In the event that the detained person requestsrelease thereby triggering this seventy-two (72) hour expedited hearing, thehearing shall be a preliminary hearing, shall be treated with priority on thecourt calendar, and may be continued only for good cause shown. If at thispreliminary hearing the court determines that there is no probable cause tosupport detention, the director's petition shall be dismissed, the director'sorder vacated, and the person shall be discharged unless the person applies forvoluntary admission to care and treatment. However, if the court is satisfiedthat there is probable cause to support the director's order, the director'sorder shall remain in full force and effect and the full hearing procedures asset forth at subsection (h) shall be effectuated. In any event, detention shallnot continue for more than five (5) business days in the absence of acourt-order authorizing detention. The court order shall be sought by thedirector pursuant to the hearing procedures as set forth at subsection (h). Thedirector shall seek further court review of detention within forty-five (45)days following the initial court order authorizing detention and subsequentlywithin forty-five (45) days of each subsequent court review. In any courtproceeding to enforce a director's order for the removal or detention of aperson issued pursuant to this chapter or for review of the continued detentionof a person, the director shall prove the particularized circumstancesconstituting the necessity for detention by clear and convincing evidence. Anyperson who is subject to a detention order shall have the right to berepresented by counsel and upon the request of the person, counsel shall beprovided by the court. The person subject to detention shall be entitled tofile a petition for release at any time, included but not limited to, apetition based upon compliance with therapy and a plan to complete therapy inanother less restrictive setting.
(d) An order of the director pursuant to subsection (b) shallset forth;
(i) The legal authority under which the order is issued,including the particular sections of this chapter;
(ii) An individualized assessment of the person'scircumstances and/or behavior constituting the basis for the issuance of theorder;
(iii) The less restrictive treatment alternatives that wereattempted and were unsuccessful and/or the less restrictive treatmentalternatives that were considered and rejected, and the reasons thosealternatives were rejected.
(2) In addition, an order for the removal and detention of aperson shall:
(i) Include the purpose of the detention;
(ii) Advise the person being detained that he or she has theright to request release from detention by contacting a person designated onthe director's order at a telephone number stated on the director's order, andthat the detention shall not continue for more than five (5) business daysafter a release request in the absence of a court order authorizing thedetention;
(iii) Advise the person being detained that, whether or nothe or she requests release from detention, the director must obtain a courtorder authorizing detention within five (5) days following the commencement ofdetention and thereafter must further seek court review of the detention withinforty-five (45) days of the court order, and within forty-five (45) days ofeach subsequent court review;
(iv) Advise the person being detained that he or she has theright to arrange to be represented by counsel or to have counsel appointed, andthat if he or she chooses to have counsel appointed, the counsel will benotified that the person has requested legal representation.
(e) A person who is detained solely pursuant to subsection(b)(1) shall not continue to be detained beyond the minimum period of timerequired, with the exercise of all due diligence, to make a medicaldetermination of whether a person who is suspected of having tuberculosis hasactive tuberculosis or whether a person who has active tuberculosis isinfectious. Further detention of the person shall be authorized only upon theissuance of a director's order pursuant to subsection (b)(4) or (b)(5);
(f) A person who is detained pursuant to this section solelyfor the reasons described in subsection (b)(4) shall not continue to bedetained after the department ascertains that changed circumstances exist thatpermit him or her to be adequately separated from others so as to preventtransmission of tuberculosis after his or her release from detention or that aless-restrictive alternative to the detention is established.
(g) A person who is detained pursuant to this section for thereasons described in subsection (b)(5) shall not continue to be detained afterhe or she has completed an appropriate prescribed course of medication.
(h) A verified petition may be filed in the district court,or family court in the case of a person who has not reached his or hereighteenth (18th) birthday, for the detention to a facility of any person whois subject to an order of the director pursuant to subsection (b). The petitionmay be filed by the director and shall be filed only after the petitioner hasinvestigated what alternatives to detention are available and determined whythe alternatives are not deemed suitable.
(2) A hearing scheduled under this section shall be conductedpursuant to the following requirements:
(i) All evidence shall be presented according to the usualrules of evidence that apply in civil, non-jury cases. The subject of theproceedings shall be given the right to present evidence in his or her ownbehalf, and to cross-examine all witnesses against him or her, including anyphysician who has certified the diagnosis of tuberculosis pursuant tosubsection (c) of this section. The subject of the proceedings shall have thefurther right to subpoena witnesses and documents, the cost of subpoenaingwitnesses and documents to be borne by the court where the court finds upon anapplication of the subject that the person cannot afford to pay for the cost ofsubpoenaing witnesses and documents.
(ii) A verbatim transcript or electronic recording shall bemade of the hearing which shall be impounded and obtained or examined only withthe consent of the subject of the hearing (or in the case of a person who hasnot yet attained his or her eighteenth (18th) birthday, his or her parent,guardian, or next of kin) or by order of the court.
(iii) The hearing may be held at a location other than acourt, including any facility where the subject may then be a patient, where itappears to the court that holding the hearing at another location would be inthe best interests of the subject of the hearing or any participants in thehearing.
(iv) The burden of proceeding and the burden of proof in ahearing held pursuant to this section shall be upon the petitioner. Thepetitioner has the burden of demonstrating that the subject of the hearing isin need of care and treatment in a facility, is one whose continuedunsupervised presence in the community would create a likelihood of seriousharm, and what alternatives to detention are available, what alternatives todetention were investigated, and why these alternatives were not deemedsuitable.
(v) The court shall render a decision within forty-eight (48)hours after the hearing is concluded.
(3) If the court after a hearing finds by clear andconvincing evidence that the subject of the hearing is in need of care andtreatment in a facility, and is one whose continued unsupervised presence inthe community would create a likelihood of serious harm, and that allalternatives to detention have been investigated and deemed unsuitable, itshall issue an order committing the person to the custody of the director forcare and treatment in an appropriate facility. The person shall be cared for ina facility that imposes the least restraint upon the liberty of the personconsistent with affording him or her the care and treatment necessary andappropriate to his or her condition. All detention orders shall be reviewed bythe court within forty-five (45) days of the court order, and within forty-five(45) days of each subsequent court review.
(4) A person detained under this section shall have a rightto appeal from a court order of detention to the supreme court of the statewithin thirty (30) days of the entry of an order of detention. The person shallhave the right to be represented on appeal by counsel of his or her choice orby court appointed counsel if the supreme court finds that he or she cannotafford to retain counsel. Upon a showing of indigency the supreme court shallpermit an appeal to proceed without payment of costs, and a copy of thetranscript of the proceedings below shall be furnished to the subject of theproceedings or to his or her attorney at the expense of the state. The courtwhich issued the detention order shall advise the person of all his or herrights pursuant to this section immediately upon the entry of the detentionorder.
(ii) Appeals under this section shall be given precedence,insofar as practicable, on the supreme court dockets. The district and familycourts shall promulgate rules with the approval of the supreme court to insurethe expeditious transmission of the record and transcript in all appealspursuant to this chapter.
(i) Where necessary, language interpreters and personsskilled in communicating with vision and hearing impaired individuals shall beprovided.
(j) The provisions of this section shall not be construed topermit or require the forcible administration of any medication without a priorcourt order.
(k) No person, for religious or other reasons, may becompelled by the department of health to undergo treatment for tuberculosis aslong as the individual is willing to place himself or herself in an environmentthat excludes others from risk of acquiring tuberculosis.
(l) The director of health shall ensure that appropriatetreatment, monitoring, and care for tuberculosis are made available for everyindividual who is isolated and confined, and these services shall be providedwith no restrictions as to the quarantined individual's ability to pay forthose services.
(m) The department of health is authorized to promulgaterules and regulations in order to implement and enforce the provisions of thischapter.