SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

MENTAL HEALTH SAFETY PROGRAM

§ -1 Definitions. As used in this chapter, unless the context clearly otherwise indicates:

"Communication" includes oral, written, or electronic communication.

"Danger to others" means a person who has made a serious threat or attempt to injure another person with the use of a firearm or other dangerous or deadly weapon.

"Danger to self" means a person who has made a serious threat of, or attempted, suicide with the use of a firearm or other dangerous or deadly weapon.

"Dangerous or deadly weapon" means any weapon identified in part III of chapter 134.

"Firearm" means any weapon for which the operating force is an explosive, including but not limited to pistols, revolvers, rifles, shotguns, automatic firearms, noxious gas projectors, mortars, bombs, and cannon.

"Law enforcement agency" means any county police department or department of public safety sheriff division.

"Mental health professional" means a psychologist, psychiatrist, physician, social worker, or counselor.

"Person who poses a threat of physical violence" means a person who communicates to a mental health professional a serious threat of physical violence against a reasonably identifiable victim or victims and who, pursuant to section ‑4, is prohibited from:

(1) Possessing, controlling, or having in the person's custody any firearm or other dangerous or deadly weapon; and

(2) Purchasing or receiving, or attempting to purchase or receive, any firearm or other dangerous or deadly weapon.

§ -2 Persons involuntarily hospitalized; firearms; dangerous or deadly weapons. (a) A person committed to a psychiatric facility for involuntary hospitalization under chapter 334 who, in the opinion of a licensed psychologist who is primarily responsible for the patient's treatment, is a danger to self or danger to others, shall not possess, control, or have in the person's custody any firearm or other dangerous or deadly weapon; or purchase or receive, or attempt to purchase or receive, any firearm or any other dangerous or deadly weapon, upon release from the psychiatric facility unless:

(1) In the opinion of the licensed psychologist who is primarily responsible for the person's treatment, the person is no longer a danger to self or danger to others;

(2) The person provides medical documentation to the department of public safety that the person is not suffering from any addiction, abuse, dependence, mental disease, disorder, or defect; and

(3) The person is not otherwise disqualified from ownership or possession of a firearm or other dangerous or deadly weapon by any other applicable provision of law, including but not limited to chapter 134.

(b) Upon commitment of a person described in subsection (a), the psychiatric facility shall make a report to the department of public safety that contains the following information:

(1) Identification of the individual;

(2) Explanation of the treating psychologist's diagnosis; and

(3) Explanation of the danger the person poses.

(c) The department shall maintain a list of persons who are prohibited from possessing, having custody or control over, receiving, purchasing, or attempting to receive or purchase any firearm or other dangerous or deadly weapon pursuant to subsection (a).

(d) Violation of this section is a class felony.

§ -3 Confiscation and custody of firearms or other dangerous or deadly weapons; procedure for return. (a) When a person who has been detained or apprehended for examination of that person's mental condition is found to own, have in the person's possession, or have under the person's control any firearm or any other dangerous or deadly weapon, the firearm or other dangerous or deadly weapon shall be confiscated by a law enforcement agency, which shall retain custody of the firearm or other dangerous or deadly weapon as necessary and shall notify the person of the procedure for the return of any firearm or other dangerous or deadly weapon that has been confiscated.

(b) If a person on the list maintained by the department of public safety pursuant to section -2(c), upon release from the psychiatric facility, is found to possess, have custody or control over, receive, or purchase any firearm or other dangerous or deadly weapon in violation of section -2, the violation of section -2 shall constitute probable cause for the issuance of a search warrant for the location and confiscation of firearms or other dangerous or deadly weapons owned, controlled, or possessed by the person at any place the person keeps or stores any firearm or other dangerous or deadly weapon.

§ -4 Communication of threat; firearms; dangerous or deadly weapons; report; notice. (a) Any person who communicates to a mental health professional a serious threat of physical violence against a reasonably identifiable victim or victims shall be prohibited from:

(1) Possessing, controlling, or having in the person's custody any firearm or other dangerous or deadly weapon; and

(2) Purchasing or receiving, or attempting to purchase or receive, any firearm or other dangerous or deadly weapon.

(b) A mental health professional who receives a communication from a person who threatens serious physical violence against a reasonably identifiable victim or victims shall immediately make a report, under penalty of perjury, to a law enforcement agency that:

(1) Identifies the person making the threat;

(2) Identifies the person or persons against whom the threat was made;

(3) Describes in detail the specific threat made; and

(4) Specifies the date, time, place, and manner in which the threat was made.

(1) Communicate all of the information in the report to the department of public safety;

(2) Take appropriate action to ensure the safety of the person or persons threatened; and

(3) Pursuant to section -5, confiscate and secure any firearms or other dangerous or deadly weapons owned, controlled, or possessed by the person at any place the person keeps or stores any firearms or other dangerous or deadly weapons.

(d) Any law enforcement agency that receives a report from a mental health professional shall within twenty-four hours of receipt of the report:

(1) Make a written record of all of the information reported by the mental health professional; and

(2) Transmit a written report to the department of public safety.

(e) Upon receipt of a report of a threat from a law enforcement agency, the department of public safety shall notify by certified mail, return receipt requested, the person who poses a threat of physical violence of the following:

(1) That the person is prohibited from possessing, having custody or control over, receiving, or purchasing any firearm or other dangerous or deadly weapon;

(2) That the person must immediately surrender any firearms or other dangerous or deadly weapons owned, controlled, or possessed by the person; and

(3) That any license for firearms or any other dangerous or deadly weapon has been revoked.

(f) There shall be no criminal or civil liability for any mental health professional, acting in good faith, who makes a report pursuant to subsection (b).

(g) Making or submitting a false report under this section is a misdemeanor.

(h) A violation of this section is a class felony.

§ -5 Seizure of firearms or other dangerous or deadly weapons; revocation of license. When a person is identified as a person who poses a threat of serious physical violence:

(1) The communication from the mental health professional to the law enforcement agency pursuant to section ‑4, shall constitute exigent circumstances for the immediate location and confiscation of firearms or other dangerous or deadly weapons owned, possessed, or controlled by the person making a threat under this section at any place the person keeps or stores any firearm or other dangerous or deadly weapon;

(2) The department of public safety and the local law enforcement agency with jurisdiction over the matter shall immediately confiscate and secure any firearms and other dangerous or deadly weapons owned, controlled, or possessed by the person at any place the person keeps or stores any firearm or other dangerous or deadly weapon; and

(3) Any license for a firearm or other dangerous or deadly weapon issued to the person shall be immediately revoked.

§ -6 Selling or supplying firearms or other dangerous or deadly weapons. (a) Any person who knowingly sells, supplies, gives, or allows possession or control of a firearm to any person who poses a threat of serious physical violence is guilty of a class felony.

(b) Any person who knowingly sells, supplies, gives, or allows possession or control of a dangerous or deadly weapon to any person who poses a threat of serious physical violence is guilty of a class felony.

§ -7 Maintenance of records. (a) The department of public safety shall develop and maintain:

(1) A database of records and reports submitted in connection with this chapter, which shall be accessible to all mental health professionals and law enforcement agencies;

(2) A list of persons prohibited from possessing, having custody or control over, receiving, purchasing, or attempting to receive or purchase firearms and other dangerous or deadly weapons under this chapter; and

(3) A list of persons whose license has been revoked under this chapter.

(b) The department of public safety shall allow verification of the identity of a person listed in subsection (a) by:

(1) Law enforcement agencies;

(2) Mental health professionals; and

(3) Wholesalers and retailers of firearms or other dangerous or deadly weapons.

§ -8 Procedures for confiscation, custody, and return of firearms and other dangerous or deadly weapons. The department of public safety shall adopt rules to establish procedures for confiscation, custody, and return of firearms and other dangerous or deadly weapons confiscated pursuant to this chapter."

SECTION 2. Section 626-1, Hawaii Revised Statutes, is amended by amending rule 504, subsection (d), to read as follows:

"(d) Exceptions.

(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness or substance abuse, or in proceedings for the discharge or release of a patient previously hospitalized for mental illness or substance abuse.

(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

(3) Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to the physical, mental, or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of the patient's claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

(4) Proceedings against physician. There is no privilege under this rule in any administrative or judicial proceeding in which the competency, practitioner's license, or practice of the physician is at issue, provided that the identifying data of the patients whose records are admitted into evidence shall be kept confidential unless waived by the patient. The administrative agency, board, or commission may close the proceeding to the public to protect the confidentiality of the patient.

(5) Furtherance of crime or tort. There is no privilege under this rule if the services of the physician were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or tort.

(6) Prevention of crime or tort. There is no privilege under this rule as to a communication reflecting the patient's intent to commit a criminal or tortious act that the physician reasonably believes is likely to result in death or substantial bodily harm.

(7) Communications under the mental health safety program. There is no privilege under this rule as to any communication made pursuant to the mental health safety program under chapter ."

SECTION 3. Section 626-1, Hawaii Revised Statutes, is amended by amending rule 504.1, subsection (d), to read as follows:

"(d) Exceptions.

(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the client for mental illness or substance abuse, or in proceedings for the discharge or release of a client previously hospitalized for mental illness or substance abuse.

(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a client, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

(3) Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to the physical, mental, or emotional condition of the client in any proceeding in which the client relies upon the condition as an element of the client's claim or defense or, after the client's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

(4) Proceedings against psychologist. There is no privilege under this rule in any administrative or judicial proceeding in which the competency, practitioner's license, or practice of the psychologist is at issue, provided that the identifying data of the clients whose records are admitted into evidence shall be kept confidential unless waived by the client. The administrative agency, board, or commission may close the proceeding to the public to protect the confidentiality of the client.

(5) Furtherance of crime or tort. There is no privilege under this rule if the services of the psychologist were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or tort.

(6) Prevention of crime or tort. There is no privilege under this rule as to a communication reflecting the client's intent to commit a criminal or tortious act that the psychologist reasonably believes is likely to result in death or substantial bodily harm.

(7) Communications under the mental health safety program. There is no privilege under this rule as to any communication made pursuant to the mental health safety program under chapter ."

SECTION 4. Section 626-1, Hawaii Revised Statutes, is amended by amending rule 505.5, subsection (d), to read as follows:

"(d) Exceptions. There is no privilege under this rule:

(1) Perjured testimony by victim. If the victim counselor reasonably believes that the victim has given perjured testimony and a party to the proceeding has made an offer of proof that perjury may have been committed.

(2) Physical appearance and condition of victim. In matters of proof concerning the physical appearance and condition of the victim at the time of the alleged crime.

(3) Breach of duty by victim counselor or victim counseling program. As to a communication relevant to an issue of breach of duty by the victim counselor or victim counseling program to the victim.

(4) Mandatory reporting. To relieve victim counselors of any duty to refuse to report child abuse or neglect under chapter 350, domestic abuse under chapter 586, or abuse of a vulnerable adult under part X of chapter 346, and to refuse to provide evidence in child abuse proceedings under chapter 587A.

(5) Proceedings for hospitalization. For communications relevant to an issue in proceedings to hospitalize the victim for mental illness or substance abuse, or in proceedings for the discharge or release of a victim previously hospitalized for mental illness or substance abuse.

(6) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a victim, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose of which the examination is ordered unless the court orders otherwise.

(7) Condition an element of claim or defense. As to a communication relevant to the physical, mental, or emotional condition of the victim in any proceeding in which the victim relies upon the condition as an element of the victim's claim or defense or, after the victim's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

(8) Proceedings against the victim counselor. In any administrative or judicial proceeding in which the competency or practice of the victim counselor or of the victim counseling program is at issue, provided that the identifying data of the victims whose records are admitted into evidence shall be kept confidential unless waived by the victim. The administrative agency, board or commission shall close to the public any portion of a proceeding, as necessary to protect the confidentiality of the victim.

(9) Communications under the mental health safety program. There is no privilege under this rule as to any communication made pursuant to the mental health safety program under chapter ."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 7. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	932
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII