Van Buren/Cass District Health Department
Nursing Division
RECALCITRANT BEHAVIOR OF CLIENTS
WITH HIV, TB AND THOSE POSING AN IMMINENT DANGER
POLICIES/PROCEDURES
OBJECTIVE:To protect the health or lives of persons in the community against
any person with a serious communicable disease or infection such as Tuberculosis, HIV, STD, or Salmonellosis
DESCRIPTION:Michigan has laws designed to protect Society from persons who act in such a way as to transmit serious communicable diseases or infections to other persons. The law allows for the identification, education, and detention of persons described as a “carrier and a health threat to others”. (ACT 368) In addition, ACT 490 is the basis for a HIV/AIDS education and disease prevention program. It includes a warning notice and petition with resultant court orders ranging from mandatory participation in an educational program to a commitment to a facility. This law makes it a felony for a person who knows he/she is HIV infected to engage in sexual penetration with another person without having first informed the other person that he/she is HIV infected.
Definitions:
1.A CARRIER is a person who is a potential source of infection because it has been demonstrated by appropriate analyses such as lab tests by health professionals that the person has a serious communicable disease or infection and/or a HIV/AIDS or STD case report form from a private provider or designated HIV/STD counseling and testing site. There must be actual knowledge of a person’s infectious status before labeling him/her as a “carrier and a health threat to others”
2.HEALTH THREAT TO OTHERS means that a person who is a carrier has demonstrated an inability or unwillingness to conduct himself/herself in such a manner as to not place others at risk of exposure to serious communicable disease or infection. Health threat to others includes but is not limited to one or more of the following behaviors:
a.Current behavior that shows a disregard for transmission
- Past behavior or statements that show a credible intent to transmit.
- Misrepresentation by the carrier of his/her infectious status prior to engaging in behavior that could cause transmission.
Reference:MCL 333.5201
EQUIPMENT:A.Health Threat to Others Referral Form
B.Tuberculosis warning notice
C.HIV warning notice - BCHD and sample from “Recalcitrant Behavior”
POLICY:LEGAL BASIS:
A.ACT 368, MDCH Code, September 30, 1978 sections 2451, 5201, 5203, 5207and 5210.
B.ACT 490 1988 Revised November, 1995. “Health Threat To Others”
PROCEDURE:A.IDENTIFICATION OF A HEALTH THREAT TO OTHERS
1.When allegations regarding recalcitrant behavior are made and it has been determined a person demonstrates he/she is a carrier and a health threat to others, the PHN and Medical Director discuss the documented evidence (see “Health Threat to Others” referral form) and plan the appropriate follow up.
2.An exemption to initiating a Health Threat to Others case applies when allegations are made by a third party that identify an individual as suspected of having a serious communicable disease or infection with intent to transmit. Under these instances, there is a lack of supportive documentation to verify the existence of a positive HIV/STD test result. If local health departments are to investigate these types of cases as potential health threats to others, the following steps are recommended:
a.The third party must be willing to provide the local health department with their name, address, and telephone number.
b.The third party must provide to the local health department a written statement that identifies the suspected carrier and describes the behaviors, and/or statements which support their allegations.
3.It is the local health department’s responsibility to inform the 3rd party that should their allegations be substantiated, they may be required to provide additional testimony to the local health department, or in the case of more formal charges, actual testimony to the court.
4.Based upon the results of these investigations, the local health officer will, in conjunction with local health department staff, review the allegations as well as any other pertinent information, and decide if a potential health threat to others case exists and offer further recommendations.
B.WARNING NOTICE
1.Determination of the necessity to issue a warning notice will be made by the Medical director and the health officer who decide if the client is a carrier and a health threat to others.
2.Once it has been decided a warning notice is necessary, the PHN follows the directives of the Medical director and the Health officer in issuing the warning notice to the carrier.
3.A warning notice is a formal letter initiated by the local health officer and delivered to an individual who is considered to be a carrier and a health threat to others. The letter:
a.Shall require the carrier to cooperate in efforts to prevent or control transmission of the serious communicable disease or infection.
b.May also require the carrier to participate in education, counseling or treatment programs, and to undergo medical testing to verify the individual’s status as a carrier.
c.Shall be in writing, except in urgent circumstances, the warning may be delivered orally, followed by a written statement within 3 days.
d.Shall be individual and specifically identify the behavior that poses a threat to others.
e.Shall be delivered by registered mail, return receipt requested or personally by a representative of the local health department. Personal delivery is preferred.
f.Shall include a statement to the individual that failure to comply with the actions requested in the warning notice can result in an order from the probate court. This statement shall also state that the carrier has the right to a notice and a hearing and other rights before such an order is issued.
Reference MCL 333.5203
- The warning notice will be dated and signed by the client. The original will be given to the client and a copy will be placed in the chart.
4.A second warning notice should be delivered if a person fails to respond to the first warning within the time designated by the Medical Officer.
C.FAILURE TO COMPLY
1.The PHN informs the medical director of the carrier’s compliant/noncompliant behavior and does as directed by the medical director/health officer about further procedures such as a petition.
2.If there is reasonable ground to believe that a carrier has failed to comply with the conditions set in prior warning notice/s, the medical director or health officer may file a petition with the probate court. The petition must state:
a.The grounds and facts that show that an individual is a carrier and a health threat to others.
- The type of efforts done to alleviate the health threat to others before the written notice was filed.
- The type of relief sought.
- A request for a court hearing on the allegations indicated in the petition.
3.The probate court sets the hearing date, but it must be within 14 days of filing the petition.
a.The court must personally notify the carrier of the hearing, date, location, and time at least 3 days before the hearing and the carrier must be advised of his right to appear at the hearing, his/her right to present and cross-examine witnesses, and the right to counsel.
4.If the court finds that the allegations are proved, it can order education, counseling, treatment, medical testing and monitoring. The court can also order that the carrier “Cease and desist”, or live part-time or full-time in a supervised setting, and/or be committed to a facility for up to 6 months.
a.The probate court cannot issue a commitment order to a facility until a review panel evaluates the need for commitment. The commitment review panel shall consist of 3 physicians appointed by the probate court from a list of doctors submitted by the health department. Two of the doctors shall have training and experience in the diagnosis and treatment of the specific communicable disease or infection. One physician can be selected by the carrier. The commitment review panel shall review the records, interview the carrier and recommend a commitment or an alternative.
D.EMERGENCY DETENTION
1.If there is reasonable cause to believe that a person is a carrier and a HEALTH THREAT TO OTHERS upon a department affidavit, the carrier may be taken into custody to an emergency care or treatment facility.
2.The court must determine that there is reasonable cause to believe that there is a substantial likelihood that the individual is a carrier and a health threat to others. This can be done without providing notice to the individual.
3.The court’s order must be given to the individual when he is picked up.
4.The individual has a right to hearing to determine if the temporary detention should continue.
a.The hearing must take place within 72 hours not counting weekends and holidays.
- Notice of the hearing must be given at least 24 hours in advance, and include the grounds for the detention and the right to counsel, to present and cross-examine witnesses, and to appear at the hearing.
5.The court can extend the detention for up to 5 days unless a petition for a full hearing is filed. The person can be detained until the full hearing if the evidence shows that the person would be a health threat to others if released.
E.DOCUMENTATION
- Charting will be descriptive of behaviors and responses of the carrier that demonstrates an inability or unwillingness to conduct himself/herself in such a manner as to not place others at risk of exposure to the serious communicable disease or infection. The warning notice, petition, and other legal documents are placed in the chart in a section marked “Health Threat”.
F.Policy will be reviewed annually by corporate council with signed evidence of legal review. (Director of Operations will facilitate this task.)
- REFER TO THE PUBLIC HEALTH CODE MDCH AND BOOKLET (DRAFT) ENTITLED: “ADDRESSING RECALCITRANT BEHAVIOR AMONG HIV/STD INFECTED POPULATIONS: RECOMMENDATIONS FOR LOCAL HEALTH DEPARTMENT RESPONSES DEVELOPED BY THE WORKSHOP ON RECALCITRANT ACTIVITY, NOVEMBER, 1996 (revised June, 2004).
DISTRIBUTION
Communicable Disease Manual
STD Manual
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Frederick A. Johansen, M.D., F.A.A.P.Date
Medical Director
Rev: 3/15/2006
Temporary or Specific Standing Orders/Recalcitrant Behavior for Clients-VBCdoc.
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