36-726

36-726. Petition for court ordered examination,
monitoring, treatment, isolation or quarantine

A. The tuberculosis control officer, the local health officer or a designated legal
representative may petition the superior court for court ordered examination, monitoring,
treatment, isolation or quarantine of an afflicted person who presents a substantial
danger to another person or to the community and who has failed to comply with a
voluntary treatment plan or a written order to cooperate. The petition may be brought in
the county where the afflicted person resides or is physically located. The petition
shall be in the form and manner approved by the director.

B. The petition shall include:

1. The afflicted person's name, address, date of birth and physical location or
last known address. The petitioner may refer to the afflicted person by a pseudonym if
specifically requested by the afflicted person.

2. A statement containing the grounds and underlying facts demonstrating that the
person is an afflicted person.

3. A statement that the afflicted person has failed to comply with a voluntary
treatment plan or an order to cooperate or has a history of noncompliance with an
appropriate prescribed course of medication or other interventions.

4. A statement containing the grounds and underlying facts demonstrating that the
afflicted person presents a substantial danger to another person or to the community.

5. The least restrictive alternatives to court ordered examination, monitoring,
treatment, isolation or quarantine that are appropriate or available.

6. A statement identifying the afflicted person as a minor or an incapacitated
person, if applicable, and any facts that could assist the court to determine if the
provisions of section 36-730 apply.

C. If the petitioner determines that the afflicted person's health is likely to
deteriorate before a court hearing can begin, the petition shall include a statement
containing the afflicted person's current clinical condition and a request for an
immediate order from the court authorizing the administration of medically necessary
treatment to preserve the afflicted person's medical condition before a hearing on the
petition.

D. The petitioner shall inform the court when the afflicted person's medical
condition may require the court to adjust the conditions and circumstances to accommodate
the afflicted person's condition pursuant to section 36-725.

E. The petition shall be accompanied by the affidavit or affidavits of the person
who conducted the investigation and by the affidavit or affidavits of the petitioner or
intervenors. The affidavits shall detail the evidence that indicates that the person is
an afflicted person and evidence that indicates that the afflicted person is a
substantial danger to another person or to the community. The petition shall include a
summary of the facts that support the allegations of the petition.

F. The petition shall request the court to issue an immediate order authorizing the
compulsory detention and continued detention of the afflicted person in a designated
facility for supervised monitoring, treatment, isolation or quarantine pending a
detention hearing on the petition for public health protection. This detention hearing
shall be conducted within fifteen days after a petition for public health protection is
filed in the superior court.

G. Before the superior court has an opportunity to rule on the petition's merits,
the court may order the immediate or continued detention of the afflicted person in an
institution approved by the department, the tuberculosis control officer or the local
health officer if the court determines that there is reasonable cause to believe that the
afflicted person is likely to be a substantial danger to another person or to the
community.

H. If the court orders that the afflicted person be immediately detained, the court
shall issue orders necessary to provide for the apprehension, transportation and
detention of the afflicted person pending the outcome of the detention hearing and shall
provide notice of detention to the afflicted person's physician, or, if the afflicted
person is a minor or an incapacitated person, the afflicted person's parent or guardian,
or if none, the next of kin. The court shall appoint an attorney for the afflicted
person if one has not been appointed.

I. If after reviewing the petition and supporting documents and other evidence the
court determines that the petition and supporting documentation and evidence submitted to
the court do not support a finding that the person is an afflicted person or is a
substantial danger to another person or the community, the court shall issue a written
order to release the person as soon as reasonably possible.

J. If after a petition has been filed and before the hearing the petitioner or the
medical director of the receiving institution, with the advice and consent of the
tuberculosis control officer or local health officer, determines that the person is not
an afflicted person, the petitioner shall withdraw the petition and the petitioner or the
medical director of the receiving institution shall discharge the person as soon as
reasonably possible.

K. If after a petition has been filed and before the hearing the petitioner or the
medical director of the receiving facility, with the advice and consent of the
tuberculosis control officer or the local health officer, determines that the afflicted
person will voluntarily comply with the orders of the tuberculosis control officer or the
local health officer, the petitioner may request the court to hold the petition in
abeyance pending satisfactory compliance by the afflicted person with the terms of the
voluntary treatment plan. The court shall not hold the petition in abeyance for longer
than six months. Prior to the end of six months, the petitioner may request the court to
continue holding the petition in abeyance for a period of time specified by the court.

L. A detention hearing shall be held within fifteen days after the petition is
filed with the clerk of the superior court unless:

1. The court determines for good cause shown that a continuance of the detention
hearing is necessary in the interests of public health. For the purposes of this
paragraph, "good cause" includes the unavailability of necessary witnesses or that
additional time is necessary to receive and interpret laboratory test results.

2. The afflicted person or, if a minor or incapacitated person, the afflicted
person's parent or guardian, on consultation with an attorney, determines that it would
be in the afflicted person's best interest to request a continuance.

M. A continuance granted to any party by the court pursuant to subsection L of this
section shall not exceed thirty days unless the parties agree to an additional
continuance.

N. The purpose of a detention hearing is to determine if the afflicted person has
tuberculosis. The burden of proof is on the petitioner to prove by clear and convincing
evidence that detention is necessary because the person is an afflicted person and is a
substantial danger to another person or to the community.

O. At any time before the hearing the department may intervene as a party to any
proceedings pursuant to this section by filing a written notice of intervention with the
clerk of the superior court in the county in which the petition is filed. The intervenor
may cross-examine any witnesses presented by the other parties, subpoena and present
witnesses of its own, including physicians and infectious disease experts, and present
evidence. On stipulation with all parties or on order of the court, the intervenor may
have physicians conduct physical examinations of the afflicted person and offer testimony
as to whether the person has active tuberculosis or is a substantial danger to another
person or to the community and offer testimony as to the least restrictive examination,
treatment, monitoring, isolation or quarantine alternatives available to the court.

P. Within five days after the filing of a petition for public health protection,
the petitioner shall serve on the afflicted person or, if a minor or incapacitated
person, the afflicted person's parent or guardian a copy of the petition and affidavits
in support of it and the notice of the hearing. The notice shall inform the afflicted
person of the purpose of the hearing and the right to an attorney. If the afflicted
person has not employed an attorney, the court shall appoint an attorney at least seven
days before the hearing. The notice shall fix the date, time and place for the
hearing. The notice requirements of this section cannot be waived.

Q. At least five days before the court conducts the hearing on the petition or
within a reasonable time after the appointment of a court appointed attorney, copies of
the petition, affidavits in support of it, the notice of the hearing, the investigation
reports, the afflicted person's medical records and copies of other exhibits shall be
made available by the petitioner to the afflicted person or, if a minor or incapacitated
person, the afflicted person's parent or guardian or that person's attorney for
examination and reproduction.

R. A person has the right to have an evaluation performed by an independent
physician. This evaluation shall include a physical examination and laboratory
analysis. If the afflicted person is unable to afford an examination the court shall
appoint an independent evaluator acceptable to the afflicted person from a list of
licensed physicians who are willing to accept court appointed evaluations. The afflicted
person may require the independent physician who performed the evaluation to appear as a
witness at a hearing conducted pursuant to this section.