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.