As Amended by House Committee
Session of 2023
HOUSE BILL No. 2353
By Committee on Judiciary
2-8
AN ACT concerning the care and treatment act for mentally ill persons;
increasing the time allowed for an initial continued treatment order;
adding criteria to determine when outpatient treatment may be ordered;
amending K.S.A. 59-2958, 59-2959 and 59-2969 and K.S.A. 2022
2023 Supp. 59-2967 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 59-2958 is hereby amended to read as follows: 59-
2958. (a) At the time the petition for the determination of whether a person
is a mentally ill person subject to involuntary commitment for care and
treatment under this act is filed, or any time thereafter prior to the trial
upon the petition as provided for in K.S.A. 59-2965, and amendments
thereto, the petitioner may request in writing that the district court issue an
ex parte emergency order including either or both of the following:
(1) An order directing any law enforcement officer to take the person
named in the order into custody and transport the person to a designated
treatment facility or other suitable place willing to receive and detain the
person; or
(2) an order authorizing any named treatment facility or other place to
detain or continue to detain the person until the further order of the court
or until the ex parte emergency custody order shall expire.
(b) No ex parte emergency custody order shall provide for the
detention of any person at a state psychiatric hospital unless a written
statement from a qualified mental health professional authorizing such
admission and detention at a state psychiatric hospital has been filed with
the court.
(c) No ex parte emergency custody order shall provide for the
detention of any person in a nonmedical facility used for the detention of
persons charged with or convicted of a crime.
(d) If no other suitable facility at which where such person may be
detained is willing to accept the person, then the participating mental
health center for that area shall provide a suitable place to detain the
person until the further order of the court or until the ex parte emergency
custody order shall expire.
(e) An ex parte emergency custody order issued under this section
shall expire at 5:00 p.m. of the second third day the district court is open
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for the transaction of business after the date of its issuance, which and the
expiration date shall be stated in the order.
(f) The district court shall not issue successive ex parte emergency
custody orders.
(g) In lieu of issuing an ex parte emergency custody order, the court
may allow the person with respect to whom the request was made to
remain at liberty, subject to such conditions as the court may impose.
Sec. 2. K.S.A. 59-2959 is hereby amended to read as follows: 59-
2959. (a) At the time that the petition for determination of mental illness is
filed, or any time thereafter prior to the trial upon the petition as provided
for in K.S.A. 59-2965, and amendments thereto, the petitioner may request
in writing that the district court issue a temporary custody order. The
request shall state:
(1) The reasons why the person should be detained prior to the
hearing on the petition;
(2) whether an ex parte emergency custody order has been requested
or was granted; and
(3) the present whereabouts of the person named in the petition.
(b) Upon the filing of a request for a temporary custody order, the
court shall set the matter for a hearing which that shall be held not later
than the close of business of the second third day the district court is open
for the transaction of business after the filing of the request. The petitioner
and the person with respect to whom the request has been filed shall be
notified of the time and place of the hearing and that they shall each be
afforded an opportunity to appear at the hearing, to testify and to present
and cross-examine witnesses. If the person with respect to whom the
request has been filed has not yet retained or been appointed an attorney,
the court shall appoint an attorney for the person.
(c) (1) At the hearing scheduled upon the request, the person with
respect to whom the request has been filed shall be present unless the
attorney for the person requests that the person's presence be waived and
the court finds that the person's presence at the hearing would be injurious
to the person's welfare. The court shall enter in the record of the
proceedings the facts upon which the court has found that the presence of
the person at the hearing would be injurious to such person's welfare.
However, if the person with respect to whom the request has been filed
states in writing to the court or to such person's attorney that such person
wishes to be present at the hearing, the person's presence cannot be
waived.
(2) The hearing shall be conducted in as informal a manner as may be
consistent with orderly procedure and in a physical setting not likely to
have a harmful effect on the person with respect to whom the request has
been filed. All persons not necessary for the conduct of the proceedings
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may be excluded. The court shall receive all relevant and material
evidence which that may be offered. The rules governing evidentiary and
procedural matters shall be applied to hearings under this section in a
manner so as to facilitate informal, efficient presentation of all relevant,
probative evidence and resolution of issues with due regard to the interests
of all parties. The facts or data upon which a duly qualified expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing and if of a type reasonably relied upon by
experts in their particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. The expert
may testify in terms of opinion or inference and give the expert's reasons
therefor without prior disclosure of the underlying facts or data unless the
court requires otherwise. If requested on cross-examination, the expert
shall disclose the underlying facts or data.
(3) If the petitioner is not represented by counsel, the county or
district attorney shall represent the petitioner, prepare all necessary papers,
appear at the hearing and present such evidence as the county or district
attorney determines to be of aid to the court in determining whether or not
there is probable cause to believe that the person with respect to whom the
request has been filed is a mentally ill person subject to involuntary
commitment for care and treatment under this act, and that it would be in
the best interests of the person to be detained until the trial upon the
petition.
(d) After the hearing, if the court determines from the evidence that:
(1) There is probable cause to believe that the person with respect to
whom the request has been filed is a mentally ill person subject to
involuntary commitment for care and treatment under this act, and that it is
in the best interests of the person to be detained until the trial upon the
petition, the court shall issue a temporary custody order;
(2) there is probable cause to believe that the person with respect to
whom the request has been filed is a mentally ill person subject to
involuntary commitment for care and treatment under this act, but that it
would not be in their best interests to be detained until the trial upon the
petition, the court may allow the person to be at liberty, subject to such
conditions as the court may impose; or
(3) there is not probable cause to believe that the person with respect
to whom the request has been filed is a mentally ill person subject to
involuntary commitment for care and treatment under this act, the court
shall terminate the proceedings and release the person.
(e) (1) A temporary custody order issued pursuant to this section may
direct any law enforcement officer or any other person designated by the
court to take the person named in the order into custody and transport them
to a designated treatment facility, and authorize the designated treatment
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facility to detain and treat the person until the trial upon the petition.
(2) No temporary custody order shall provide for the detention and
treatment of any person at a state psychiatric hospital unless a written
statement from a qualified mental health professional authorizing such
admission and detention at a state psychiatric hospital has been filed with
the court.
(3) No temporary custody order shall provide for the detention of any
person in a nonmedical facility used for the detention of persons charged
with or convicted of a crime.
(4) If no other suitable facility at which where such person may be
detained is willing to accept the person, then the participating mental
health center for that area shall provide a suitable place to detain the
person until the further order of the court or until the trial upon the
petition.
Sec. 3. K.S.A. 2022 2023 Supp. 59-2967 is hereby amended to read
as follows: 59-2967. (a) An order for outpatient treatment may be entered
by the court at any time in lieu of any type of order which that would have
required inpatient care and treatment if the court finds that the patient is:
(1) (A) Likely to comply with an outpatient treatment order; and that
the patient will
(B) not likely to be a danger to the community or be likely to cause
harm to self or others while subject to an outpatient treatment order; or
(2) in need of outpatient treatment to prevent a relapse or
deterioration that would likely result in:
(A) Serious bodily harm to self or others;
(B) a substantial harm to the patient's well-being;
(C) substantial damage to another person's property; or
(D) serious physical or mental debilitation in the patient Will meet
the criteria for required inpatient care and treatment in the proximate
future without such outpatient treatment and is only likely to attend
outpatient treatment if there is a court order mandating such
treatment; or
(2) is, if left untreated, reasonably expected to experience an
increase in the symptoms caused by the illness that would result in the
need for inpatient care and treatment in the proximate future and
whose mental illness has previously caused the patient to refuse
needed and appropriate mental health services in the community.
(b) No order for outpatient treatment shall be entered unless the head
of the outpatient treatment facility has consented to treat the patient on an
outpatient basis under the terms and conditions set forth by the court,
except that no order for outpatient treatment shall be refused by a
participating mental health center.
(c) If outpatient treatment is ordered, the order may state specific
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conditions to be followed by the patient, but shall include the general
condition that the patient is required to comply with all directives and
treatment as required by the head of the outpatient treatment facility or the
head's designee. Such directives and treatment plans shall be provided to
the court in writing within 10 business days after the order for outpatient
treatment is issued. Failure to provide such directives and treatment plans
to the court as required by this subsection is not grounds for dismissal of
the order unless the failure is made in bad faith. The court may also make
such orders as are appropriate to provide for monitoring the patient's
progress and compliance with outpatient treatment. Within any outpatient
order for treatment the court shall specify the period of treatment as
provided for in subsection (a) of K.S.A. 59-2966(a) or subsection (f) of
K.S.A. 59-2969(f), and amendments thereto.
(d) The court shall retain jurisdiction to modify or revoke the order
for outpatient treatment at any time on its own motion, on the motion of
any counsel of record or upon notice from the treatment facility of any
need for new conditions in the order for outpatient treatment or of material
noncompliance by the patient with the order for outpatient treatment.
However, if the venue of the matter has been transferred to another court,
then the court having venue of the matter shall have such jurisdiction to
modify or revoke the outpatient treatment order. Revocation or
modification of an order for outpatient treatment may be made ex parte by
order of the court in accordance with the provisions of subsections (e) or
(f).
(e) The treatment facility shall immediately report to the court any
material noncompliance by the patient with the outpatient treatment order.
Such notice may be verbal or by telephone but shall be followed by a
verified written, facsimile or electronic notice sent to the court, to counsel
for all parties and, as appropriate, to the head of the inpatient treatment
facility designated to receive the patient, by not later than 5:00 p.m. of the
first day the district court is open for the transaction of business after the
verbal or telephonic communication was made to the court. Upon receipt
of verbal, telephone, or verified written, facsimile or electronic notice of
material noncompliance, the court may enter an ex parte emergency
custody order providing for the immediate detention of the patient in a
designated inpatient treatment facility except that the court shall not order
the detention of the patient at a state psychiatric hospital, unless a written
statement from a qualified mental health professional authorizing such
detention at a state psychiatric hospital has been filed with the court. Any
ex parte emergency custody order issued by the court under this subsection
shall expire at 5:00 p.m. of the second third day the district court is open
for the transaction of business after the patient is taken into custody. The
court shall not enter successive ex parte emergency custody orders.
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(f) (1) Upon the taking of a patient into custody pursuant to an ex
parte emergency custody order revoking a previously issued order for
outpatient treatment revoking a previously issued order for outpatient
treatment and ordering the patient to involuntary inpatient care the court
shall set the matter for hearing not later than the close of business on the
second third day the court is open for business after the patient is taken
into custody. Notice of the hearing shall be given to the patient, the
patient's attorney, the patient's legal guardian, the petitioner or the county
or district attorney as appropriate, the head of the outpatient treatment
facility and the head of the inpatient treatment facility, similarly as
provided for in K.S.A. 59-2963, and amendments thereto.
(2) Upon the entry of an ex parte order modifying a previously issued
order for outpatient treatment, but allowing the patient to remain at liberty,
a copy of the order shall be served upon the patient, the patient's attorney,
the county or district attorney and the head of the outpatient treatment
facility similarly as provided for in K.S.A. 59-2963, and amendments
thereto. Thereafter, any party to the matter, including the petitioner, the
county or district attorney or the patient, may request a hearing on the
matter if the request is filed within five days from the date of service of the
ex parte order upon the patient. The court may also order such a hearing on
its own motion within five days from the date of service of the notice. If
no request or order for hearing is filed within the five-day period, the ex
parte order and the terms and conditions set out in the ex parte order shall
become the final order of the court substituting for any previously entered
order for outpatient treatment. If a hearing is requested, a formal written
request for revocation or modification of the outpatient treatment order
shall be filed by the county or district attorney or the petitioner and a
hearing shall be held thereon within 5 days after the filing of the request.
(g) The hearing held pursuant to subsection (f) shall be conducted in
the same manner as hearings provided for in K.S.A. 59-2959, and
amendments thereto. Upon the completion of the hearing, if the court finds
by clear and convincing evidence that the patient violated any condition of
the outpatient treatment order, the court may enter an order for inpatient
treatment, except that the court shall not order treatment at a state
psychiatric hospital unless a written statement from a qualified mental
health professional authorizing such treatment at a state psychiatric
hospital has been filed with the court, or may modify the order for
outpatient treatment with different terms and conditions in accordance
with this section.
(h) The outpatient treatment facility shall comply with the provisions
of K.S.A. 59-2969, and amendments thereto, concerning the filing of
written reports for each period of treatment during the time any outpatient
treatment order is in effect and the court shall receive and process such
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reports in the same manner as reports received from an inpatient treatment
facility.
Sec. 4. K.S.A. 59-2969 is hereby amended to read as follows: 59-
2969. (a) At least 14 days prior to the end of each period of treatment, as
set out in the court order for such treatment, the head of the treatment
facility furnishing treatment to the patient shall cause to be filed with the
court a written report summarizing the treatment provided and the findings
and recommendations of the treatment facility concerning the need for
further treatment for the patient. Upon the filing of this written report, the
court shall notify the patient's attorney of record that this written report has
been filed. If there is no attorney of record for the patient, the court shall
appoint an attorney and notify such attorney that the written report has
been filed.
(b) When the attorney for the patient has received notice that the
treatment facility has filed with the district court its written report, the
attorney shall consult with the patient to determine whether the patient
desires a hearing. If the patient desires a hearing, the attorney shall file a
written request for a hearing with the district court, which and the request
shall be filed not later than the last day ending any period of treatment as
specified in the court's order for treatment issued pursuant to K.S.A. 59-
2966 or 59-2967, and amendments thereto, or the court's last entered order
for continued treatment issued pursuant to subsection (f). If the patient
does not desire a hearing, the patient's attorney shall file with the court a
written statement that the attorney has consulted with the patient; the
manner in which the attorney has consulted with the patient; that the
attorney has fully explained to the patient the patient's right to a hearing as
set out in this section and that if the patient does not request such a hearing
that further treatment will likely be ordered, but that having been so
advised the patient does not desire a hearing. Thereupon, the court may
renew its order for treatment and may specify the next period of treatment
as provided for in subsection (f). A copy of the court's order shall be given
to the patient, the attorney for the patient, the patient's legal guardian, the
petitioner or the county or district attorney, as appropriate, and to the head
of the treatment facility treating the patient as the court directs.
(c) Upon receiving a written request for a hearing, the district court
shall set the matter for hearing and notice of such hearing shall be given
similarly as provided for in K.S.A. 59-2963, and amendments thereto.
Notice shall also be given promptly to the head of the treatment facility
treating the patient. The hearing shall be held as soon as reasonably
practical, but in no event more than 10 days following the filing of the
written request for a hearing. The patient shall remain in treatment during
the pendency of any such hearing, unless discharged by the head of the
treatment facility pursuant to K.S.A. 59-2973, and amendments thereto.
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(d) The district court having jurisdiction of any case may, on its own
motion or upon written request of any interested party, including the head
of the treatment facility where a patient is being treated, hold a hearing to
review the patient's status earlier than at the times set out in subsection (b)
above, if the court determines that a material change of circumstances has
occurred necessitating an earlier hearing, however, the patient shall not be
entitled to have more than one review hearing within each period of
treatment as specified in any order for treatment, order for out-patient
treatment or order for continued treatment.
(e) The hearing shall be conducted in the same manner as hearings
provided for in K.S.A. 59-2965, and amendments thereto, except that the
hearing shall be to the court and the patient shall not have the right to
demand a jury. At the hearing it shall be the petitioner's or county or
district attorney's or treatment facility's burden to show that the patient
remains a mentally ill person subject to involuntary commitment for care
and treatment under this act.
(f) Upon completion of the hearing, if the court finds by clear and
convincing evidence that the patient continues to be a mentally ill person
subject to involuntary commitment for care and treatment under this act,
the court shall order continued treatment for a specified period of time not
to exceed three six months for any initial order for continued treatment,
nor more than six months in any subsequent order for continued treatment,
at an inpatient treatment facility as provided for in K.S.A. 59-2966, and
amendments thereto, or at an outpatient treatment facility if the court
determines that outpatient treatment is appropriate under K.S.A. 59-2967,
and amendments thereto, and a copy of the court's order shall be provided
to the head of the treatment facility. If the court finds that it has not been
shown by clear and convincing evidence that the patient continues to be a
mentally ill person subject to involuntary commitment for care and
treatment under this act, it shall release the patient. A copy of the court's
order of release shall be provided to the patient, the patient's attorney, the
patient's legal guardian or other person known to be interested in the care
and welfare of a minor patient, and to the head of the treatment facility at
which where the patient had been receiving treatment.
Sec. 5. K.S.A. 59-2958, 59-2959 and 59-2969 and K.S.A. 2022 2023
Supp. 59-2967 are hereby repealed.
Sec. 6. This act shall take effect and be in force from and after its
publication in the statute book.
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