§704-413  Conditional release; application
for modification or discharge; termination of conditional release and
commitment.  (1)  Any person granted conditional release pursuant to this
chapter shall continue to receive mental health or other treatment and care
deemed appropriate by the director of health until discharged from conditional
release.  The person shall follow all prescribed treatments and take all
prescribed medications according to the instructions of the person's treating
mental health professional.  If a mental health professional who is treating a
person granted conditional release believes that either the person is not
complying with the requirements of this section or there is other evidence that
hospitalization is appropriate, the mental health professional shall report the
matter to the probation officer of the person granted conditional release.  The
probation officer may order the person granted conditional release to be
hospitalized for a period not to exceed seventy-two hours if the probation
officer has probable cause to believe the person has violated the requirements
of this subsection.  No person shall be hospitalized beyond the
seventy-two-hour period, as computed pursuant to section 1-29, unless a hearing
has been held pursuant to subsection (4); provided
that on or before the expiration of the seventy-two-hour period, a court may
conduct a hearing to determine whether the person would benefit from further
hospitalization, which may render a revocation of conditional release unnecessary. 
If satisfied, the court may order further temporary hospitalization for a
period not to exceed ninety days, subject to extension as appropriate, but in
no event for a period longer than one year.  At any time within that period,
the court may determine that a hearing pursuant to subsection (4) should be
conducted.



(2)  The director of health may apply to the
court ordering any person released pursuant to this chapter, for the person's
discharge from, or modification of, the order granting conditional release;
provided that the person receives community-based menta1 health services from
or contracted by the department of health, and the director is of the opinion
that the person on conditional release is no longer affected by a physical or
mental disease, disorder, or defect and may be discharged, or the order may be
modified, without danger to the person or to others.  The director shall make
an application for the discharge from, or modification of, the order of
conditional release in a report to the circuit from
which the order was issued.  The director shall transmit a copy of the
application and report to the prosecuting attorney of the county from which the
conditional release order was issued, to the person's treating mental health
professionals, and to the probation officer supervising the conditional
release.  The person on conditional release shall be given notice of the
application.



(3)  Any person granted conditional release
pursuant to this chapter may apply to the court ordering the conditional
release for discharge from, or modification of, the order granting conditional
release on the ground that the person is no longer affected by a physical or
mental disease, disorder, or defect and may be discharged, or the order may be
modified, without danger to the person or to others.  The application shall be
accompanied by a letter from or supporting affidavit of a qualified physician
or licensed psychologist.  A copy of the application and letter or affidavit
shall be transmitted to the prosecuting attorney of the circuit from which the
order issued and to any persons supervising the release, and the hearing on the
application shall be held following notice to such persons.  If the court
denies the application, the person shall not be permitted to file another
application for either discharge or modification of conditional release until
one year after the date of the denial.



(4)  If, at any time after the order pursuant
to this chapter granting conditional release, the court determines, after hearing
evidence, that:



(a)  The person is still affected by a physical or
mental disease, disorder, or defect, and the conditions of release have not
been fulfilled; or



(b)  For the safety of the person or others, the
person's conditional release should be revoked,



the court may forthwith modify the conditions of
release or order the person to be committed to the custody of the director of
health, subject to discharge or release in accordance with the procedure
prescribed in section 704-412.



(5)  Upon application for discharge from, or
modification of, the order of conditional release by either the director of
health or the person, the court shall complete the hearing process and render a
decision within sixty days of the application, provided that for good cause the
court may extend the sixty day time frame upon the request of the director of
health or the person. [L 1972, c 9, pt of §1; am L 1983, c 189, §1; am L 1988,
c 305, §8; am L 1997, c 306, §4; am L 2006, c 230, §12; am L 2008, c 100, §5]



 



COMMENTARY ON §704-413



 



  What has been said in the commentary to §704-412 applies with
equal force to applications, by a person released on condition, for discharge
or for modification of conditions of release.  The criterion of dangerousness
is still applicable.



  Subsection (2) limits the time during which a person released
on condition remains subject to recommitment.



 



SUPPLEMENTAL COMMENTARY ON §704-413



 



  Act 189, Session Laws 1983, added a new subsection (1) which
requires continued psychological or psychiatric treatment of persons
conditionally released after being committed pursuant to section 704-411. 
Assurance of continued treatment was felt necessary for the safety and welfare
of both the community and the person conditionally released.  This section was
further amended to provide for the recommittal of persons conditionally
released or the modification of the conditions of their release.  Senate
Conference Committee Report No. 26.



  Act 305, Session Laws 1988, included licensed psychologists
among the professionals which may provide offender examination services to the
Hawaii criminal justice system.  The legislature stated that the present laws,
which permit only psychiatric evaluation, are inconsistent with the many and
varied uses the court has found for the services of licensed psychologists. 
Senate Standing Committee Report No. 2153.



  Act 306, Session Laws 1997, amended this section to require
that any person released on condition pursuant to §704-411 shall receive mental
health or other appropriate treatment and care until discharged from
conditional release.  The amendment streamlines the process for committing and
releasing mentally incompetent defendants.  Senate Standing Committee Report
No. 98.



  Act 230, Session Laws 2006, amended this section, among
others, to ensure that the person's physical or mental disease, disorder, or
defect is considered in commitment and release provisions. House Standing
Committee Report No. 665-06.



  Act 100, Session Laws 2008, amended this section by, among
other things, providing an alternative of further temporary hospitalization
through a court hearing rather than proceeding immediately to a revocation of a
person's conditional release when the person is in violation of the conditions
of the conditional release.  House Standing Committee Report No. 1133-08.