TITLE 23
Health and Safety

CHAPTER 23-10
Tuberculosis

SECTION 23-10-6


§ 23-10-6 Quarantine for treatment of actively 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 other source has tested positive for tuberculosis and the person has not completed an appropriate prescribed course of medication for tuberculosis, or (2) a smear or culture from an extra-pulmonary source has tested positive for tuberculosis and there is clinical evidence or clinical suspicion of pulmonary tuberculosis disease and the person has not completed an appropriate prescribed course of medication for tuberculosis. A person also has active tuberculosis when, in those cases where sputum smears or cultures are unobtainable, the radiographic evidence, in addition to current clinical evidence and/or laboratory tests, is sufficient to establish a medical diagnosis of tuberculosis for which treatment is indicated.

(b) Where the director determines that the public health or the health of any other person is endangered by a case of tuberculosis, or a suspected case of tuberculosis, the director may issue any appropriate orders necessary to protect the public health or the health of any other person in accordance with this chapter, and may make application to a court for enforcement of any appropriate orders. In any court proceeding for enforcement, the director shall demonstrate the particularized circumstances constituting the necessity for an order. Detention shall not be authorized until all less-restrictive alternatives have been tried and no less-restrictive alternative is available. Those orders may include, but shall not be limited to:

(1) An order authorizing the removal to and/or detention in a hospital or other treatment facility for appropriate examination for tuberculosis of a person who has active tuberculosis or who is suspected of having active tuberculosis and who is unable or unwilling to voluntarily submit to an appropriate examination by a physician or by the department;

(2) An order requiring a person who has active tuberculosis to complete an appropriate prescribed course of medication for tuberculosis and, if necessary, to follow required contagion precautions for tuberculosis;

(3) An order requiring a person who has active tuberculosis and who is unable or unwilling otherwise to complete an appropriate prescribed course of medication for tuberculosis to follow a course of directly observed therapy. For the purposes of this provision, "directly observed therapy" means a course of treatment for tuberculosis in which the prescribed anti-tuberculosis medication is administered to the person or taken by the person under direct observation as specified by the department;

(4) An order for the removal to and/or detention in a hospital or other treatment facility of a person: (i) who has active tuberculosis that is infectious or who presents a substantial likelihood of having active tuberculosis that is infectious, based upon epidemiologic evidence, clinical evidence, x-ray readings, or laboratory test results; and (ii) where the department finds, based on recognized infection control principles, that there is a substantial likelihood the person may transmit to others tuberculosis because of his or her inadequate separation from others; or

(5) An order for the removal to and/or detention in a hospital or other treatment facility of a person: (i) who has active tuberculosis, or who has been reported to the department as having active tuberculosis with no subsequent report to the department of the completion of an appropriate prescribed course of medication for tuberculosis; and (ii) where there is a substantial likelihood that the person poses a significant risk of harm to others and who refuses to report for treatment or who refuses to continue or complete treatment for tuberculosis, until the director determines that the person is no longer a danger to the public.

(c) After two (2) licensed physicians, including at least one board certified pulmonary or infectious disease specialist, have certified the diagnosis of tuberculosis, the director may remove to or detain in a hospital or other place for examination or treatment a person who is the subject of an order of removal or detention issued pursuant to subsection (a) without prior court order; provided, however, that when a person detained pursuant to subsection (a) has requested release, the director shall make an application for a court order authorizing detention within seventy-two (72) hours after a release 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 the Saturday, Sunday or legal holiday, which application shall include a request for an expedited hearing. In the event that the detained person requests release thereby triggering this seventy-two (72) hour expedited hearing, the hearing shall be a preliminary hearing, shall be treated with priority on the court calendar, and may be continued only for good cause shown. If at this preliminary hearing the court determines that there is no probable cause to support detention, the director's petition shall be dismissed, the director's order vacated, and the person shall be discharged unless the person applies for voluntary admission to care and treatment. However, if the court is satisfied that there is probable cause to support the director's order, the director's order shall remain in full force and effect and the full hearing procedures as set forth at subsection (h) shall be effectuated. In any event, detention shall not continue for more than five (5) business days in the absence of a court-order authorizing detention. The court order shall be sought by the director pursuant to the hearing procedures as set forth at subsection (h). The director shall seek further court review of detention within forty-five (45) days following the initial court order authorizing detention and subsequently within forty-five (45) days of each subsequent court review. In any court proceeding to enforce a director's order for the removal or detention of a person issued pursuant to this chapter or for review of the continued detention of a person, the director shall prove the particularized circumstances constituting the necessity for detention by clear and convincing evidence. Any person who is subject to a detention order shall have the right to be represented by counsel and upon the request of the person, counsel shall be provided by the court. The person subject to detention shall be entitled to file a petition for release at any time, included but not limited to, a petition based upon compliance with therapy and a plan to complete therapy in another less restrictive setting.

(d)(1) An order of the director pursuant to subsection (b) shall set 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's circumstances and/or behavior constituting the basis for the issuance of the order;

(iii) The less restrictive treatment alternatives that were attempted and were unsuccessful and/or the less restrictive treatment alternatives that were considered and rejected, and the reasons those alternatives were rejected.

(2) In addition, an order for the removal and detention of a person shall:

(i) Include the purpose of the detention;

(ii) Advise the person being detained that he or she has the right to request release from detention by contacting a person designated on the director's order at a telephone number stated on the director's order, and that the detention shall not continue for more than five (5) business days after a release request in the absence of a court order authorizing the detention;

(iii) Advise the person being detained that, whether or not he or she requests release from detention, the director must obtain a court order authorizing detention within five (5) days following the commencement of detention and thereafter must further seek court review of the detention within forty-five (45) days of the court order, and within forty-five (45) days of each subsequent court review;

(iv) Advise the person being detained that he or she has the right to arrange to be represented by counsel or to have counsel appointed, and that if he or she chooses to have counsel appointed, the counsel will be notified 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 time required, with the exercise of all due diligence, to make a medical determination of whether a person who is suspected of having tuberculosis has active tuberculosis or whether a person who has active tuberculosis is infectious. Further detention of the person shall be authorized only upon the issuance of a director's order pursuant to subsection (b)(4) or (b)(5);

(f) A person who is detained pursuant to this section solely for the reasons described in subsection (b)(4) shall not continue to be detained after the department ascertains that changed circumstances exist that permit him or her to be adequately separated from others so as to prevent transmission of tuberculosis after his or her release from detention or that a less-restrictive alternative to the detention is established.

(g) A person who is detained pursuant to this section for the reasons described in subsection (b)(5) shall not continue to be detained after he or she has completed an appropriate prescribed course of medication.

(h)(1) 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 her eighteenth (18th) birthday, for the detention to a facility of any person who is subject to an order of the director pursuant to subsection (b). The petition may be filed by the director and shall be filed only after the petitioner has investigated what alternatives to detention are available and determined why the alternatives are not deemed suitable.

(2) A hearing scheduled under this section shall be conducted pursuant to the following requirements:

(i) All evidence shall be presented according to the usual rules of evidence that apply in civil, non-jury cases. The subject of the proceedings shall be given the right to present evidence in his or her own behalf, and to cross-examine all witnesses against him or her, including any physician who has certified the diagnosis of tuberculosis pursuant to subsection (c) of this section. The subject of the proceedings shall have the further right to subpoena witnesses and documents, the cost of subpoenaing witnesses and documents to be borne by the court where the court finds upon an application of the subject that the person cannot afford to pay for the cost of subpoenaing witnesses and documents.

(ii) A verbatim transcript or electronic recording shall be made of the hearing which shall be impounded and obtained or examined only with the consent of the subject of the hearing (or in the case of a person who has not 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 a court, including any facility where the subject may then be a patient, where it appears to the court that holding the hearing at another location would be in the best interests of the subject of the hearing or any participants in the hearing.

(iv) The burden of proceeding and the burden of proof in a hearing held pursuant to this section shall be upon the petitioner. The petitioner has the burden of demonstrating that the subject of the hearing is in need of care and treatment in a facility, is one whose continued unsupervised presence in the community would create a likelihood of serious harm, and what alternatives to detention are available, what alternatives to detention were investigated, and why these alternatives were not deemed suitable.

(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 and convincing evidence that the subject of the hearing is in need of care and treatment in a facility, and is one whose continued unsupervised presence in the community would create a likelihood of serious harm, and that all alternatives to detention have been investigated and deemed unsuitable, it shall issue an order committing the person to the custody of the director for care and treatment in an appropriate facility. The person shall be cared for in a facility that imposes the least restraint upon the liberty of the person consistent with affording him or her the care and treatment necessary and appropriate to his or her condition. All detention orders shall be reviewed by the court within forty-five (45) days of the court order, and within forty-five (45) days of each subsequent court review.

(4)(i) A person detained under this section shall have a right to appeal from a court order of detention to the supreme court of the state within thirty (30) days of the entry of an order of detention. The person shall have the right to be represented on appeal by counsel of his or her choice or by court appointed counsel if the supreme court finds that he or she cannot afford to retain counsel. Upon a showing of indigency the supreme court shall permit an appeal to proceed without payment of costs, and a copy of the transcript of the proceedings below shall be furnished to the subject of the proceedings or to his or her attorney at the expense of the state. The court which issued the detention order shall advise the person of all his or her rights pursuant to this section immediately upon the entry of the detention order.

(ii) Appeals under this section shall be given precedence, insofar as practicable, on the supreme court dockets. The district and family courts shall promulgate rules with the approval of the supreme court to insure the expeditious transmission of the record and transcript in all appeals pursuant to this chapter.

(i) Where necessary, language interpreters and persons skilled in communicating with vision and hearing impaired individuals shall be provided.

(j) The provisions of this section shall not be construed to permit or require the forcible administration of any medication without a prior court order.

(k) No person, for religious or other reasons, may be compelled by the department of health to undergo treatment for tuberculosis as long as the individual is willing to place himself or herself in an environment that excludes others from risk of acquiring tuberculosis.

(l) The director of health shall ensure that appropriate treatment, monitoring, and care for tuberculosis are made available for every individual who is isolated and confined, and these services shall be provided with no restrictions as to the quarantined individual's ability to pay for those services.

(m) The department of health is authorized to promulgate rules and regulations in order to implement and enforce the provisions of this chapter.

History of Section.
(P.L. 1993, ch. 253, § 5; P.L. 1993, ch. 406, § 3.)