Bill Description: Senate Bill 1247 would allow a law enforcement officer or health care provider to take a person into protective custody and detain the person for up to 24 hours in a hospital if the officer or provider believes the person has a major neurocognitive disorder and is likely to injure themselves or others. 

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NOTE: The Senate Amendment to Senate Bill 1247 significantly rewrote and restructured the bill, which means some of the quotes in the analysis may not reflect the exact wording of the amended bill. Nevertheless, the purpose of the bill remains the same as do the concerns raised in the analysis. The rating has not changed.

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

Senate Bill 1247 would create Chapter 19, Title 56, Idaho Code, to allow law enforcement officers or health care providers to take a person into protective custody and detain that person in a hospital for up to 24 hours if the officer or provider believes the person "has a major neurocognitive disorder and is likely to injure themselves or others."

The bill defines "major neurocognitive disorder" as "a condition causing or resulting in the loss or dysfunction of brain cells to the extent that the person suffering from the condition is substantially impaired, which restricts or limits the person's ability to provide for the person's own care and custody or to manage the person's property or financial affairs."

It defines "likely to injure themselves or others" as "a substantial risk that serious physical harm will be inflicted by the person upon their own person, as evidenced by threats of suicide or threats to inflict serious physical harm on themselves; a substantial risk that serious physical harm will be inflicted by the person upon another as evidenced by behavior that has caused such harm or that places another person or persons in reasonable fear of sustaining such harm; or the person lacks insight into their need for treatment and is unable or unwilling to comply with treatment based on their medical history, clinical observation, or other clinical evidence, and if they do not receive and comply with treatment, there is a substantial risk that they will continue to physically, emotionally, or cognitively deteriorate to the point that they will, in the reasonably near future, inflict serious physical harm on themselves or another person."

It is important to note the "or" in the above definition as only one of the three conditions need be met in order to trigger the provisions of this bill. Of the three, the third is the most concerning because it suggests that a person choosing not to follow a treatment recommendation (which would appear to include choosing not to take prescribed medications) could provide a justification for the involuntary detention allowed under this chapter.

There is a great deal of subjectivity in these definitions, which allows a law enforcement officer or health care provider significant latitude in deciding if a person should be detained. 

The bill states that "protective custody under this section is not an arrest," but involuntary detention always entails suspending one or more fundamental rights, and it should never be done lightly or without due consideration of all relevant factors. It is concerning that a person who has not broken a law or caused any harm can be taken into custody based on someone's suspicions regarding their future behavior and the belief that the person may suffer from a neurocognitive disorder. 

It is also worth noting here that law enforcement officers and many health care workers have not received comprehensive training on diagnosing neurocognitive disorders, so the suspicion that leads to the detention could be unfounded. 

Passing this bill l would not necessarily violate individual rights, but it does allow for a concerning degree of speculation and guesswork in a process containing that potential. 

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