Thou Shalt Not Commit



Thou Shalt Not Commit


Act 259 of Session Laws of 1967, medical, hospitalization


Sam King reviews Act 259 of Session Laws of 1967 and discusses how Hawaii is trending toward the medical point of view regarding emergency hospitalization


Sam King


Jan 1968






The new year will usher in a new procedure in Hawaii for the care and treatment of persons who are mentally ill or habituated to the excessive use of drugs or alcohol, to an extent requiring hospitalization. In fact, from and after January 1, 1968, it will no longer be possible to obtain a court order requiring such a person to be hospitalized except in connection with a criminal or juvenile proceeding. For Hawaii, this will be a radical departure from prior practice with important legal implications of which all attorneys should be aware.
The vehicle of this change is Act 259; Session Laws of 1967, signed by Governor John A. Burns on June 7, 1967. The new law relates to "Mental Health, Mental Illness, Drug Addiction and Alcoholism" and it completely rewrites Chapter 81 of the Revised Laws of Hawaii 1955, as amended. It is a tribute to the groundwork done by the Department of Health, the Mental Health Association of Hawaii, the Hawaii Psychiatric Society, the Hawaii Medical Association, and others that this legislation passed both houses of the legislature without any serious controversy or opposition. The relative ease of enactment has perhaps underemphasized the extent of the change and the seriousness of the legal problems involved. My effort here will be to bring these matters back into more central focus as preparation for the day when my fellow lawyers first find themselves confronted with the application of Act 259 and vigorously objecting thereto.
Traditionally in the United States the power of the state to deal with persons who are acting differently than the majority of their peers, because of some mental problem or because of the intake of drugs or alcohol, has been related primarily to the public safety and convenience and secondarily to the safety, treatment, and rehabilitation of the individuals involved. Thus the criminal laws have provided the models for relevant legislation and the hospitalization of such a person has been viewed as a deprivation of personal liberty similar to incarceration in a prison which could only be effected in accordance with constitutional due process requiring all of the substantive and procedural protections afforded an accused felon. Our present, but soon to be defunct, laws reflect this traditional view.
The medical profession has contended for years that this approach is barbaric, and chat a more rational solution would reverse the traditional concerns. In this view, the involvement of the state would be based primarily upon the safety, treatment, and rehabilitation of the individuals involved and secondarily upon the public safety and convenience. Given these assumptions, the more appropriate and desirable model would be the procedure for admission of patients to a general hospital, as for example, in the case of a person suffering from acute appendicitis. Act 259 adopts this "modern" and "liberal" thinking.
But the medical doctors themselves will readily concede that hospitalization for acute appendicitis and hospitalization for mental illness, drug addiction, and alcoholism are not exactly equivalent? In the latter situations, effective treatment often requires that that the patient be hospitalized and detained in the hospital on a nonvoluntary basis. When this occurs, it amounts to a deprivation of personal liberty, no matter in what humanitarian vocabulary it may be described. In the United States, this raises constitutional questions.
One is tempted at this stage in the analysis to conclude that the traditional view is forced upon us whether we like it or not. No one may be deprived of life, liberty, or property without due process of law and obviously, to have any effective meaning, this due process must come before and not after the deprivation. Here the medical doctors provide an escape from this circuitous logic by suggesting that they can provide the necessary initial due process with an appeal to the courts to follow. These are heretical words to lawyers. Trained as we are to be guardians of individual rights, we react negatively whenever an outlander ventures into the area. Is this not practicing law without a license? A little humility is all that is needed to accept the medical rejoinder.
Fortunately for conservative temperaments, others have already pioneered along the route we are going to take. In Ontario for at least the last 50 years (and presumably from the beginning) the family physician has admitted his patient to the hospital for treatment of mental illness, and kept him there, without any special formalities, subject only to the writ of habeas corpus, a sufficient return to which is that the person is hospitalized for mental illness. The British Mental Health Act of 1959 and the New York Mental Hygiene Law of 1965 are in the new pattern.
In retrospect, our own laws over the years have tended toward the medical point of view. Emergency hospitalization for 10 days on the certificates of two doctors, or for 48 hours on the certificate of one doctor concurred in by a psychiatrist at the hospital, waiver of formal hearing, and even dispensing with service of notice, have been allowed. As a practical matter, district magistrates have signed court orders for hospitalization at the state hospital without seeing the patients and solely on the basis of the written applications and medical certificates. Since July 1, 1966, this function has been transferred to family court judges but without any other significant change in procedure. One could argue convincingly that what we have been doing provides less due process than what we are going to do.
Under Act 259, then, initial admission to a licensed psychiatric facility of a person who is mentally ill or who is habituated to the excessive use of drugs or alcohol, to an extent requiring hospitalization, except in cases arising out of criminal or juvenile proceedings, will be effected solely by the administrator of the psychiatric facility involved, or his deputy, and licensed physicians, with an occasional extra party (including, for emergency hospitalization, a police officer, but usually a relative) as an applicant. Nowhere in this procedure will there be any court order, or any application to a court, or any subsequent filing of a report with any court.
The basic nonvoluntary admission for indefinite hospitalization will be on the certificate of two physicians attached to an application which may be made by one of the physicians. Emergency admissions on the certificate of one physician or upon the application of a police officer are limited to 48 hours. Voluntary applications are authorized and favored.
The administrator of the receiving hospital has the responsibility of giving the patient, upon admission, written notice of the application and of the patient's rights. A copy of the application is also required to be delivered to the spouse, relative, or friend of the patient identified in the application, or if there is no such person, then to the family court.
Court review is provided by a simplified procedure similar to a habeas corpus proceeding. The patient, or any responsible person on his behalf, may request a determination from the family court as to the regularity of the admission or as to the need for continued hospitalization by merely filing a written request therefor. This may be done at any time after admission, but not again for 6 months after an adverse decision. The family court will issue without cost an order to show cause returnable in 5 days. There is provision for a guardian ad litem. The traditional writ of habeas corpus is still available.
While at it, the committee drafting the bill which became Act 259, and of which it was my privilege to serve as chairman, took the opportunity of cleaning up a good many other matters. The treatment of mental illness, drug addiction, and alcoholism together is considered an advance. Provisions for transfer within and without the state are new and cover situations that have been troublesome. The law applies to public and private psychiatric facilities, and requires licensing thereof, but leaves details to regulations adopted by the Department of Health. The section preserving the civil rights of patients admitted pursuant to the new law is detailed and more protective than heretofore. Coordination with the Veterans Administration is provided explicitly in a section drafted by the administration's attorney. "Authorized absence" and "discharge" of patients from a psychiatric facility are spelled out. Transfer of patients from and to correctional institutions is made more flexible.
In another context, the civil liability of a certificating physician or of an applicant (other than the patient himself) was not thought through to its conclusion by the drafting committee. It was felt tentatively that such liability, if any, would be about the same as under prior laws.
Act 259 is forward-looking piece of legislation. Its adoption places Hawaii in the forefront of the states of the Union this area. Hopefully there are no serious deficiencies in its provisions. As it goes into operation there will be improvements that will suggest themselves to those who deal with the law. Among those we count all of the members of the bar of Hawaii. Your critical observations are solicited.


Sam King , “Thou Shalt Not Commit,” The Archival Collections at the University of Hawaiʻi School of Law Library, accessed February 28, 2024,