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Title 47. Welfare, Social Services and Institutions
Chapter 47.24.
PROTECTION OF VULNERABLE ADULTS
Sec. 47.24.010.
Reports of harm.
(a) Except as provided in (e) and (f) of this section, the
following persons who, in the performance of their professional duties, have
reasonable cause to believe that a vulnerable adult suffers from abandonment,
exploitation, abuse, neglect, or self-neglect shall, not later than 24 hours
after first having cause for the belief, report the belief to the department's
central information and referral service for vulnerable adults:
(1) a physician or other licensed
health care provider;
(2) a mental health professional as
defined in AS 47.30.915(11) and including a marital and family therapist
licensed under AS 08.63;
(3) a pharmacist;
(4) an administrator of a nursing
home, residential care or health care facility;
(5) a guardian or conservator;
(6) a police officer;
(7) a village public safety officer;
(8) a village health aide;
(9) a social worker;
(10) a member of the clergy;
(11) a staff employee of a project
funded by the Department of Administration for the provision of services to
older Alaskans, the Department of Health and Social Services, or the Council on
Domestic Violence and Sexual Assault;
(12) an employee of a personal care
or home health aide program;
(13) an emergency medical technician
or a mobile intensive care paramedic;
(14) a caregiver of the vulnerable
adult;
(15) a certified nurse aide.
(b) A report made under this section may include the name and
address of the reporting person and must include
(1) the name and address of the
vulnerable adult;
(2) information relating to the
nature and extent of the abandonment, exploitation, abuse, neglect, or
self-neglect;
(3) other information that the reporting
person believes might be helpful in an investigation of the case or in
providing protection for the vulnerable adult.
(c) The department or its designees shall report to the
Department of Law any person required by (a) of this section to report who fails
to comply with this section. A person listed in (a) of this section who,
because of the circumstances, should have had reasonable cause to believe that
a vulnerable adult suffers from abandonment, exploitation, abuse, neglect, or
self-neglect but who knowingly fails to comply with this section is guilty of a
class B misdemeanor. If a person convicted under this section is a member of a
profession or occupation that is licensed, certified, or regulated by the
state, the court shall notify the appropriate licensing, certifying, or
regulating entity of the conviction.
(d) This section does not prohibit a person listed in (a) of
this section, or any other person, from reporting cases of abandonment,
exploitation, abuse, neglect, or self-neglect of a vulnerable adult that have
come to the person's attention.
(e) If a person making a report under this section believes
that immediate action is necessary to protect the vulnerable adult from
imminent risk of serious physical harm due to abandonment, exploitation, abuse,
neglect, or self-neglect and the reporting person cannot immediately contact
the department's central information and referral service for vulnerable
adults, the reporting person may make the report to a police officer or a
village public safety officer. The police officer or village public safety
officer shall take immediate action to protect the vulnerable adult and shall,
at the earliest opportunity, notify the department. A person may not bring an
action for damages against a police officer, village public safety officer, the
state, or a political subdivision of the state based on a decision under this
subsection to take or not to take immediate action to protect a vulnerable
adult. If a decision is made under this subsection to take immediate action to
protect a vulnerable adult, a person may not bring an action for damages based
on the protective actions taken unless the protective actions were performed
with gross negligence or intentional misconduct; damages awarded in the action
may include only direct economic compensatory damages for personal injury.
(f) A person listed in (a) of this section who reports to
the long term care ombudsman under AS 47.62.015, or to the Department of Health
and Social Services, that a vulnerable adult has been exploited, abused, or
neglected in an out-of-home care facility is considered to have met the duty to
report under (a) of this section.
Sec. 47.24.011. Duties
of the department regarding services and protection for vulnerable adults.
In order to facilitate the provision of supportive and
protective services for vulnerable adults, the department shall
(1) compile information on available
supportive and protective services for vulnerable adults in the state;
(2) establish, publicize, and
maintain a central information and referral service for vulnerable adults;
(3) develop and coordinate a
statewide system to serve vulnerable adults who are in need of protective
services;
(4) establish criteria and
procedures for the authorization and supervision of other state agencies or
community-based service providers to serve as designees of the department under
this chapter;
(5) in accordance with this chapter,
designate other state agencies or community-based service providers to deliver
supportive and protective services to vulnerable adults who are in need of
protective services;
(6) develop within the central
information and referral service for vulnerable adults a central registry for
reports of vulnerable adults in need of protective services;
(7) maintain confidentiality of
records as provided for in AS 47.24.050; and
(8) adopt regulations to carry out
the purposes of this chapter.
Sec. 47.24.013.
Reports of abandonment, exploitation, abuse, neglect, or self-neglect of vulnerable
adults in out-of-home care facilities.
(a) If a report received under AS 47.24.010 regards the
abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable
adult who is 60 years of age or older that is alleged to have been committed by
or to have resulted from the negligence of the staff or a volunteer of an
out-of-home care facility, including a facility licensed under AS 18.20, in
which the vulnerable adult resides, and if the Department of Health and Social
Services licenses that type of facility, the Department of Administration shall
transfer the report for investigation to the long term care ombudsman under AS
47.62.015 and the Department of Health and Social Services.
(b) The department shall transfer to the Department of Health
and Social Services, for investigation, a report received under AS 47.24.010
regarding the abandonment, exploitation, abuse, neglect, or self-neglect of a
vulnerable adult who is less than 60 years of age that is alleged to have been
committed by or to have resulted from the negligence of the staff or a
volunteer of an out-of-home care facility in which the vulnerable adult
resides, if the Department of Health and Social Services licenses that type of
facility.
(c) Upon receipt of a report from the department under (a)
or (b) of this section, the long term care ombudsman and the Department of
Health and Social Services shall
(1) conduct an investigation as
appropriate under AS 47.62.015 or this title, respectively;
(2) coordinate and cooperate in
their responses to and investigations of the report if their jurisdictions
overlap;
(3) provide the results of their
actions or investigations to the central information and referral service of
the department within 60 days after the receipt of the report.
(d) If the long term care ombudsman or the Department of
Health and Social Services receives directly a report regarding the
abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable
adult in an out-of-home care facility, the ombudsman or the Department of
Health and Social Services shall provide the report, and the results of their
actions or investigations regarding the report, to the central information and
referral service of the Department of Administration. The Department of
Administration may investigate the report as described in AS 47.24.015 if the
department determines that action is appropriate.
(e) If the results of an investigation by the long term care
ombudsman or the Department of Health and Social Services are provided to the Department
of Administration under (c) or (d) of this section, the Department of
Administration may make a final determination as described in AS 47.24.015(b),
based on the investigation results provided, regarding services to be offered
to the vulnerable adult.
(f) If an investigation conducted by an agency under this
section shows reasonable cause to believe that a certified nurse aide has
committed abuse, neglect, or misappropriation of property, the agency shall
report the matter to the Board of Nursing.
Sec. 47.24.015. Action
on reports.
(a) Upon the department's receipt of a report under AS
47.24.010 that is not transferred under AS 47.24.013, the department, or its
designee, shall promptly initiate an investigation to determine whether the
vulnerable adult who is the subject of the report suffers from abandonment,
exploitation, abuse, neglect, or self-neglect. The department, or its designee,
shall conduct a face-to-face interview with the subject of the report unless
that person is unconscious or the department, or its designee, has determined
that a face-to-face interview could further endanger the vulnerable adult.
(b) After the department conducts an investigation under (a)
of this section, the department shall prepare a written report of the investigation,
including findings, recommendations, and a determination of whether and what
kind of supportive or protective services are needed by and are to be offered
to the vulnerable adult. After the department's designee conducts an
investigation under (a) of this section, the designee shall prepare a written
report of the investigation, including findings, recommendations, and a
proposed determination of whether and what kind of supportive or protective
services are to be offered to the vulnerable adult. The department shall
prepare, and attach to the designee's report, a final determination regarding
services to be offered to the vulnerable adult.
(c) The department, or its designee, shall immediately
terminate an investigation under this section upon the request of the
vulnerable adult who is the subject of the report made under AS 47.24.010.
However, the department or its designee may not terminate the investigation if
the investigation to that point has resulted in probable cause to believe that
the vulnerable adult is in need of protective services and the request is made
personally by the vulnerable adult and the vulnerable adult is not competent to
make the request on the adult's own behalf, or the request is made by the
vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker and
that person is the alleged perpetrator of the abandonment, exploitation, abuse,
or neglect of the vulnerable adult and is being investigated under this
chapter. If the department has probable cause to believe that the vulnerable
adult is in need of protective services,
(1) the department may petition the
court as set out in AS 47.24.019; or
(2) the department or its designee
may refer the report made to the department under AS 47.24.010 to a police
officer for criminal investigation.
(d) Upon request, a person who made a report to the
department under AS 47.24.010 regarding a vulnerable adult shall be
notified of the status of the investigation conducted under (a) of this section
regarding that vulnerable adult.
(e) A person may not bring an action for damages based on a
decision under this section to offer or not to offer protective services to a
vulnerable adult.
(f) A person may not bring an action for damages based on
the provision of protective services under this section unless the action is
based on gross negligence or intentional misconduct. The damages awarded in an
action under this section may include only direct economic compensatory damages
for personal injury.
(g) If an investigation under this section shows reasonable
cause to believe that a certified nurse aide has committed abuse, neglect, or
misappropriation of property, the department shall report the matter to the
Board of Nursing.
Sec. 47.24.016.
Surrogate decision makers for vulnerable adults.
(a) If the department determines under AS 47.24.015 that a
vulnerable adult is in need of protective services, but the department cannot
obtain the vulnerable adult's consent to receive the services because the
vulnerable adult is unable to consent or lacks decision making capacity, and
has no guardian or attorney in fact to serve as the vulnerable adult's
surrogate decision maker, the department may select from the following list, in
the order of priority listed, an individual who is willing to be the vulnerable
adult's surrogate decision maker for the purpose of deciding whether to consent
to the vulnerable adult's receipt of protective services:
(1) the vulnerable adult's spouse,
unless
(A) the vulnerable adult and the
spouse have separate domiciles; or
(B) the vulnerable adult or the spouse have initiated divorce or dissolution proceedings;
(2) an individual who lives with the
vulnerable adult in a spousal relationship or as a domestic partner and who is
18 years of age or older;
(3) a son or daughter of the
vulnerable adult who is 18 years of age or older;
(4) a parent of the vulnerable
adult;
(5) a brother or sister of the
vulnerable adult who is 18 years of age or older; or
(6) a close friend or relative of
the vulnerable adult who is 18 years of age or older.
(b) An individual from the list in (a) of this section may
not be selected as a surrogate decision maker if
(1) the department determines that
individual does not possess decision making capacity; or
(2) there are allegations that
individual is a perpetrator of the abandonment, exploitation, abuse, or neglect
of the vulnerable adult.
(c) If the department intends to select a surrogate decision
maker from a priority level in the list in (a) of this section and there is
more than one individual at that priority level who is willing to be the
surrogate decision maker, those individuals
(1) may select from amongst
themselves, by majority vote, an individual to serve as the surrogate decision
maker; or
(2) as a group may serve as the
surrogate decision maker and reach decisions by consensus.
(d) The department may not continue to provide protective
services to a vulnerable adult based on the consent of a surrogate decision
maker serving under this section if the department determines that the
vulnerable adult has become able to consent or has regained decision making
capacity since the surrogate's consent was given. The department may continue
protective services to a vulnerable adult who has become able to consent or has
regained decision making capacity only if the vulnerable adult consents.
Sec. 47.24.017.
Delivery of protective services for vulnerable adults.
(a) If the department determines under AS 47.24.015 that a
vulnerable adult is in need of protective services and either the vulnerable
adult, the vulnerable adult's guardian or attorney in fact, or a surrogate
decision maker selected under AS 47.24.016 consents to receipt of the
protective services, and to the extent that resources are available, the
department shall ensure that the protective services for the vulnerable adult
are provided by the department or its designee within 10 working days after the
department received the report under AS 47.24.010 regarding the abandonment,
exploitation, abuse, neglect, or self-neglect of the vulnerable adult. However,
if circumstances beyond the control of the department or the department's
designee make it impossible to provide the protective services within the 10
working days, the department shall ensure that the services are provided as
soon as possible after that time.
(b) Notwithstanding (a) of this section, if the department
determines that an emergency situation exists that necessitates provision of
protective services to a vulnerable adult, the department may provide the
necessary protective services in a manner determined by the department to be
the most appropriate in light of the emergency situation, regardless of whether
the vulnerable adult or any other person has consented to receipt of the
services.
(c) To the extent practicable, protective services provided
under this section shall be delivered in a culturally relevant manner that
protects the vulnerable adult's right to the least restrictive environment and
maximizes that person's own decision making capabilities.
(d) If the protective services under this section include
the placement of a vulnerable adult in an assisted living home at the state's
expense, the minimum daily reimbursement rate to the assisted living home for
the vulnerable adult is $70. The department may, under its regulations, provide
for a daily rate higher than $70 if the additional care provided to the
vulnerable adult in the assisted living home justifies the additional
reimbursement. In this subsection, "assisted living home" means an
assisted living home licensed under AS 47.33.
Sec. 47.24.019.
Petitioning court for certain protective services.
(a) If, after investigation under AS 47.24.015, the
department has reasonable cause to believe that a vulnerable adult is in need
of protective services and is an incapacitated person, the department may
petition the court under AS 13.26 for appointment of a guardian or temporary
guardian, or for a change of guardian, for the vulnerable adult for the purpose
of deciding whether to consent to the receipt of protective services for the
vulnerable adult.
(b) If, after an investigation under AS 47.24.015, the
department has reasonable cause to believe that a vulnerable adult is mentally
ill and as a result either is likely to cause serious harm to self or others or
is gravely disabled, the department may petition the court under AS 47.30.700
to initiate an involuntary commitment proceeding.
(c) If a vulnerable adult who has consented to receive
protective services, or on whose behalf consent to receive protective services
has been given, is prevented by a caregiver, guardian, attorney-in-fact, or
surrogate decision maker from receiving those services, the department may
petition the superior court for an injunction restraining the caregiver,
guardian, attorney-in-fact, or surrogate decision maker from interfering with
the provision of protective services to the vulnerable adult.
Sec. 47.24.040.
Monitoring.
If ongoing protective services are provided to a vulnerable
adult under AS 47.24.017, the department shall monitor the adult's situation,
as the department considers appropriate, until the department determines that
the protective services are no longer needed.
Sec. 47.24.050.
Confidentiality of reports.
(a) Investigation reports and reports of the abandonment,
exploitation, abuse, neglect, or self-neglect of a vulnerable adult filed under
this chapter are confidential and are not subject to public inspection and
copying under AS 40.25.110 - 40.25.125. However, in accordance with this
chapter and regulations adopted under this chapter, investigation reports may
be used by appropriate agencies or individuals inside and outside the state, in
connection with investigations or judicial proceedings involving the
abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable
adult.
(b) The department shall disclose a report of the
abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult
if the vulnerable adult who is the subject of the report or the vulnerable
adult's guardian, attorney-in-fact, or surrogate decision maker consents in
writing. The department may not disclose a report of the abandonment,
exploitation, abuse, neglect, or self-neglect of a vulnerable adult to the
vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker if
that person is an alleged perpetrator of the abandonment, exploitation, abuse,
or neglect of the vulnerable adult and is being investigated under this
chapter. The department shall, upon request, disclose the number of verified
reports of abandonment, exploitation, abuse, neglect, or self-neglect of a
vulnerable adult that occurred at an institution that provides care for
vulnerable adults or that were the result of actions or inactions of a public
home care provider.
Sec. 47.24.120.
Immunity from liability; retaliation prohibited.
(a) A person who in good faith makes a report under AS
47.24.010, regardless of whether the person is required to do so, is immune
from civil or criminal liability that might otherwise be incurred or imposed
for making the report.
(b) An employer or supervisor of a person who in good faith
makes a report under AS 47.24.010 may not discharge, demote, transfer, reduce
pay or benefits or work privileges of, prepare a negative work performance
evaluation of, or take other detrimental action against the person because the
person made the report. The person making the report may bring a civil action
for compensatory and punitive damages against an employer or supervisor who
violates this subsection. In the civil action there is a rebuttable
presumption that the detrimental action by the employer or supervisor was
retaliatory if it was taken within 90 days after the report was made.
Sec. 47.24.130.
Treatment through spiritual means.
This chapter may not be construed to mean that a person is
abused, neglected, self-neglected, vulnerable, unable to consent, abandoned,
exploited, or in need of emergency or protective services for the sole reason
that the person relies on or is being furnished treatment by spiritual means
through prayer alone in accordance with the tenets and practices of a church or
religious denomination of which the person is a member or adherent, provided
that the person consents to the treatment through spiritual means only and the
treatment is administered by an accredited practitioner of the church or
religious denomination. In this section, "church or religious
denomination" has the meaning given to "religious organization"
in AS 05.15.690.
Sec. 47.24.900.
Definitions.
In this chapter,
(1) "abandonment" means
desertion of a vulnerable adult by a caregiver;
(2) "abuse" means
(A) the willful, intentional, or
reckless nonaccidental, and nontherapeutic
infliction of physical pain, injury, or mental distress; or
(B) sexual assault under AS
11.41.410 or 11.41.420;
(3) "caregiver" means
(A) a person who is providing care
to a vulnerable adult as a result of a family relationship, or who has assumed responsibility
for the care of a vulnerable adult voluntarily, by contract, or by court order;
or
(B) an employee of an out-of-home
care facility who provides care to one or more
vulnerable adults;
(4) "decision making
capacity" means the ability to understand and appreciate the nature and
consequences of a decision and the ability to reach and communicate an informed
decision;
(5) "department" means the
Department of Administration;
(6) "designee" means
another state agency or a community-based program, individual, or provider of
supportive services that has been licensed, or authorized by agreement with the
department, to provide one or more services to vulnerable adults;
(7) "exploitation" means
unjust or improper use of another person or another person's resources for
one's own profit or advantage;
(8) "incapacitated person"
means a person whose ability to receive and evaluate information or to
communicate decisions is impaired to the extent that the person lacks the
ability to provide or arrange for the essential requirements for the person's
physical health or safety without court-ordered assistance;
(9) "neglect" means the
intentional failure by a caregiver to provide essential care or services
necessary to maintain the physical and mental health of the vulnerable adult;
(10) "police officer" has
the meaning given in AS 18.65.290;
(11) "protective services"
means services that are intended to prevent or alleviate harm resulting from
abandonment, exploitation, abuse, neglect, or self-neglect and that are provided
to a vulnerable adult in need of protection; "protective services"
includes protective placement;
(12) "public home care
provider" has the meaning given in AS 47.05.017(c);
(13) "self-neglect" means
an act or omission by a vulnerable adult that results, or could result in the
deprivation of essential services necessary to maintain minimal mental,
emotional, or physical health and safety;
(14) "supportive services"
means the range of services delivered by public and private organizations and
individuals that assist the elderly and vulnerable adults with their social,
health, educational, recreational, transportation, housing, nutritional,
financial, legal, or other needs;
(15) "unable to consent"
means refusal to, or inability to, accept services because
(A) the person is an incapacitated
person or apparently is an incapacitated person;
(B) of coercion by or fear of
reprisal from the perpetrator of abandonment, exploitation, abuse, or neglect;
(C) of dependency on the perpetrator
of abandonment, exploitation, abuse, or neglect for services, care, or support;
or
(D) of an inability to perceive that
refusal to consent results in an imminent and substantial danger of death or
irreparable harm to self or others;
(16) "vulnerable adult" means a
person 18 years of age or older who, because of physical or mental impairment,
is unable to meet the person's own needs or to seek help without assistance.
Article 08. VOLUNTARY
ADMISSION FOR TREATMENT
Sec. 47.30.670.
Standards for voluntary admission.
A person 18 years of age or older may be voluntarily
admitted to a treatment facility if the person is suffering from mental illness
and voluntarily signs the admission papers.
Sec. 47.30.675. Notice
of rights.
(a) Upon the application of a person for voluntary admission,
or at the time a person admitted under AS 47.30.690 reaches the age of 18, the
person shall be given a copy of the following documents which shall be
explained as necessary:
(1) notice of rights as set out in
AS 47.30.825 - 47.30.865 and an explanation of any document served upon the
person; and
(2) notice that should the person
desire to leave at a time when the treatment facility determines that the
person is mentally ill and as a result is likely to cause serious harm to self
or others or is gravely disabled, the facility could initiate commitment
proceedings against the person.
(b) If an applicant for voluntary admission does not
understand English, the explanation shall be given in a language the applicant
understands.
Sec. 47.30.680. Discharge
of voluntary patients.
A patient who no longer meets the standards established in
AS 47.30.670 shall be discharged from the treatment facility.
Sec. 47.30.685.
Request to leave; evaluation; 48-hour hold for commitment.
A voluntary patient who is 18 years of age or older and who
desires to leave a treatment facility shall submit to the facility a request to
leave on a form provided by the facility. When the investigation is completed,
the patient shall be evaluated immediately in writing and discharged
immediately or given written notice that involuntary commitment proceedings
will be initiated against the patient. The treatment facility may detain the
patient for no more than 48 hours after receipt of the patient's request to
leave in order to initiate involuntary commitment proceedings.
Sec. 47.30.690.
Admission of minors under 18 years of age.
(a) A minor under the age of 18 may be admitted for 30 days
of evaluation, diagnosis, and treatment at a designated treatment facility if
the minor's parent or guardian signs the admission papers and if, in the
opinion of the professional person in charge,
(1) the minor is gravely disabled or
is suffering from mental illness and as a result is likely to cause serious
harm to the minor or others;
(2) there is no less restrictive
alternative available for the minor's treatment; and
(3) there is reason to believe that
the minor's mental condition could be improved by the course of treatment or
would deteriorate further if untreated.
(b) A guardian ad litem for a minor admitted under this
section shall be appointed under AS 25.24.310 to monitor the best interests of
the minor as soon as possible after the minor's admission. If the guardian ad
litem finds that placement is not appropriate, the guardian ad litem may
request that an attorney be appointed under AS 25.24.310 to represent the
minor. The attorney may request a hearing on behalf of the minor during the
30-day admittance.
(c) The minor may be released by the treatment facility at
any time if the professional person in charge or the minor's designated mental
health professional determines the minor would no longer benefit from continued
treatment and the minor is not dangerous. The minor's parents or guardian must
be notified by the facility of the contemplated release.
Sec. 47.30.693. Notice
to parent or guardian or minor.
When a minor under 18 years of age is detained at or
admitted or committed to a treatment facility, the facility shall inform the parent
or guardian of the location of the minor as soon as possible after the arrival
of the minor at the facility.
Sec. 47.30.695. Notice
of request for release of minors under 18 years of age from detention and
commitment.
The parent or guardian of a minor who is less than 18 years
of age may file a notice to withdraw the minor from the facility. On receipt of
the notice, the facility may
(1) discharge the minor to the
custody of the parent or guardian; or
(2) if, in the opinion of the
treating physician, release of the minor would be seriously detrimental to the
minor's health, the treating physician may
(A) discharge the minor to the
custody of the parent or guardian after advising the parent or guardian that
this action is against medical advice and after receiving a written
acknowledgement of the advice; or
(B) refuse to discharge the minor,
initiate involuntary commitment proceedings, and continue to hold the minor
until a court order under AS 47.30.700 has been issued; or
(3) if, in the opinion of the
treating physician, the minor is likely to cause serious harm to self or others
and there is reason to believe the release could place the minor in imminent
danger, the treating physician shall refuse to discharge the minor, and shall
initiate involuntary commitment proceedings and continue to hold the minor
until a court order under AS 47.30.700 has been issued.
Article 09.
INVOLUNTARY ADMISSION FOR TREATMENT
Sec. 47.30.700.
Initiation of involuntary commitment procedures.
(a) Upon petition of any adult, a judge shall immediately
conduct a screening investigation or direct a local mental health professional
employed by the department or by a local mental health program that receives
money from the department under AS 47.30.520 - 47.30.620 or another mental
health professional designated by the judge, to conduct a screening
investigation of the person alleged to be mentally ill and, as a result of that
condition, alleged to be gravely disabled or to present a likelihood of serious
harm to self or others. Within 48 hours after the completion of the screening
investigation, a judge may issue an ex parte order orally or in writing,
stating that there is probable cause to believe the respondent is mentally ill
and that condition causes the respondent to be gravely disabled or to present a
likelihood of serious harm to self or others. The court shall provide findings
on which the conclusion is based, appoint an attorney to represent the
respondent, and may direct that a peace officer take the respondent into custody
and deliver the respondent to the nearest appropriate facility for emergency
examination or treatment. The ex parte order shall be provided to the
respondent and made a part of the respondent's clinical record. The court shall
confirm an oral order in writing within 24 hours after it is issued.
(b) The petition required in (a) of this section must allege
that the respondent is reasonably believed to present a likelihood of serious
harm to self or others or is gravely disabled as a result of mental illness and
must specify the factual information on which that belief is based including
the names and addresses of all persons known to the petitioner who have
knowledge of those facts through personal observation.
Sec. 47.30.705.
Emergency detention for evaluation.
A peace officer, a psychiatrist or physician who is licensed
to practice in this state or employed by the federal government, or a clinical
psychologist licensed by the state Board of Psychologist and Psychological Associate
Examiners who has probable cause to believe that a person is gravely disabled
or is suffering from mental illness and is likely to cause serious harm to self
or others of such immediate nature that considerations of safety do not allow
initiation of involuntary commitment procedures set out in AS 47.30.700, may
cause the person to be taken into custody and delivered to the nearest
evaluation facility. A person taken into custody for emergency evaluation may
not be placed in a jail or other correctional facility except for protective
custody purposes and only while awaiting transportation to a treatment
facility. The peace officer or mental health professional shall complete an
application for examination of the person in custody and be interviewed by a
mental health professional at the facility.
Sec. 47.30.710.
Examination.
(a) A respondent who is delivered under AS 47.30.700 -
47.30.705 to an evaluation facility for emergency examination and treatment shall
be examined and evaluated as to mental and physical condition by a mental
health professional and by a physician within 24 hours after arrival at the
facility.
(b) If the mental health professional who performs the
emergency examination has reason to believe that the respondent is (1) mentally
ill and that condition causes the respondent to be gravely disabled or to
present a likelihood of serious harm to self or others, and (2) is in need of
care or treatment, the mental health professional may hospitalize the
respondent, or arrange for hospitalization, on an emergency basis. If a
judicial order has not been obtained under AS 47.30.700, the mental health
professional shall apply for an ex parte order authorizing hospitalization for
evaluation.
Sec. 47.30.715.
Acceptance of order.
When a facility receives a proper order for evaluation, it
shall accept the order and the respondent for an evaluation period not to
exceed 72 hours. The facility shall promptly notify the court of the date and
time of the respondent's arrival. The court shall set a date, time and place
for a 30-day commitment hearing, to be held if needed within 72 hours after the
respondent's arrival, and the court shall notify the facility, the respondent,
the respondent's attorney, and the prosecuting attorney of the hearing
arrangements. Evaluation personnel, when used, shall similarly notify the court
of the date and time when they first met with the respondent.
Sec. 47.30.720.
Release before expiration of 72-hour period.
If at any time in the course of the 72-hour period the
mental health professionals conducting the evaluation determine that the
respondent does not meet the standards for commitment specified in AS
47.30.700, the respondent shall be discharged from the facility or the place of
evaluation by evaluation personnel and the petitioner and the court so
notified.
Sec. 47.30.725.
Commitment proceeding rights; notification.
(a) When a respondent is detained for evaluation under AS
47.30.660 - 47.30.915, the respondent shall be immediately notified orally and
in writing of the rights under this section. Notification must be in a language
understood by the respondent. The respondent's guardian, if any, and if the
respondent requests, an adult designated by the respondent, shall also be
notified of the respondent's rights under this section.
(b) Unless a respondent is released or voluntarily admitted
for treatment within 72 hours of arrival at the facility or, if the respondent
is evaluated by evaluation personnel, within 72 hours from the beginning of the
respondent's meeting with evaluation personnel, the respondent is entitled to a
court hearing to be set for not later than the end of that 72-hour period to
determine whether there is cause for detention after the 72 hours have expired
for up to an additional 30 days on the grounds that the respondent is mentally
ill, and as a result presents a likelihood of serious harm to the respondent or
others, or is gravely disabled. The facility or evaluation personnel shall give
notice to the court of the releases and voluntary admissions under AS 47.30.700
- 47.30.815.
(c) The respondent has a right to communicate immediately,
at the department's expense, with the respondent's guardian, if any, or an
adult designated by the respondent and the attorney designated in the ex parte
order, or an attorney of the respondent's choice.
(d) The respondent has the right to be represented by an
attorney, to present evidence, and to cross-examine witnesses who testify
against the respondent at the hearing.
(e) The respondent has the right to be free of the effects
of medication and other forms of treatment to the maximum extent possible
before the 30-day commitment hearing; however, the facility or evaluation
personnel may treat the respondent with medication under prescription by a
licensed physician or by a less restrictive alternative of the respondent's
preference if, in the opinion of a licensed physician in the case of
medication, or of a mental health professional in the case of alternative treatment,
the treatment is necessary to
(1) prevent bodily harm to the
respondent or others;
(2) prevent such deterioration of
the respondent's mental condition that subsequent treatment might not enable
the respondent to recover; or
(3) allow the respondent to prepare
for and participate in the proceedings.
(f) A respondent, if represented by counsel, may waive,
orally or in writing, the 72-hour time limit on the 30-day commitment hearing and
have the hearing set for a date no more than seven calendar days after arrival
at the facility. The respondent's counsel shall immediately notify the court of
the waiver.
Sec. 47.30.730.
Procedure for 30-day commitment; petition for commitment.
(a) In the course of the 72-hour evaluation period, a
petition for commitment to a treatment facility may be filed in court. The
petition must be signed by two mental health professionals who have examined
the respondent, one of whom is a physician. The petition must
(1) allege that the respondent is
mentally ill and as a result is likely to cause harm to self or others or is
gravely disabled;
(2) allege that the evaluation staff
has considered but has not found that there are any less restrictive
alternatives available that would adequately protect the respondent or others;
or, if a less restrictive involuntary form of treatment is sought, specify the
treatment and the basis for supporting it;
(3) allege with respect to a gravely
disabled respondent that there is reason to believe that the respondent's
mental condition could be improved by the course of treatment sought;
(4) allege that a specified
treatment facility or less restrictive alternative that is appropriate to the
respondent's condition has agreed to accept the respondent;
(5) allege that the respondent has
been advised of the need for, but has not accepted, voluntary treatment, and
request that the court commit the respondent to the specified treatment
facility or less restrictive alternative for a period not to exceed 30 days;
(6) list the prospective witnesses
who will testify in support of commitment or involuntary treatment; and
(7) list the facts and specific
behavior of the respondent supporting the allegation in (1) of this subsection.
(b) A copy of the petition shall be served on the
respondent, the respondent's attorney, and the respondent's guardian, if any,
before the 30-day commitment hearing.
Sec. 47.30.735. 30-day
commitment.
(a) Upon receipt of a proper petition for commitment, the
court shall hold a hearing at the date and time previously specified according
to procedures set out in AS 47.30.715.
(b) The hearing shall be conducted in a physical setting
least likely to have a harmful effect on the mental or physical health of the
respondent, within practical limits. At the hearing, in addition to other
rights specified in AS 47.30.660 - 47.30.915, the respondent has the right
(1) to be present at the hearing;
this right may be waived only with the respondent's informed consent; if the respondent
is incapable of giving informed consent, the respondent may be excluded from
the hearing only if the court, after hearing, finds that the incapacity exists
and that there is a substantial likelihood that the respondent's presence at
the hearing would be severely injurious to the respondent's mental or physical
health;
(2) to view and copy all petitions
and reports in the court file of the respondent's case;
(3) to have the hearing open or
closed to the public as the respondent elects;
(4) to have the rules of evidence
and civil procedure applied so as to provide for the informal but efficient
presentation of evidence;
(5) to have an interpreter if the
respondent does not understand English;
(6) to present evidence on the
respondent's behalf;
(7) to cross-examine witnesses who
testify against the respondent;
(8) to remain silent;
(9) to call experts and other
witnesses to testify on the respondent's behalf.
(c) At the conclusion of the hearing the court may commit the
respondent to a treatment facility for not more than 30 days if it finds, by
clear and convincing evidence, that the respondent is mentally ill and as a
result is likely to cause harm to the respondent or others or is gravely
disabled.
(d) If the court finds that there is a viable less
restrictive alternative available and that the respondent has been advised of
and refused voluntary treatment through the alternative, the court may order
the less restrictive alternative treatment for not more than 30 days if the
program accepts the respondent.
(e) The court shall specifically state to the respondent,
and give the respondent written notice, that if commitment or other involuntary
treatment beyond the 30 days is to be sought, the respondent has the right to a
full hearing or jury trial.
Sec. 47.30.740.
Procedure for 90-day commitment following 30-day commitment.
(a) At any time during the respondent's 30-day commitment,
the professional person in charge, or that person's professional designee, may
file with the court a petition for a 90-day commitment of that respondent. The
petition must include all material required under AS 47.30.730(a) except that
references to "30 days" shall be read as "90 days"; and
(1) allege that the respondent has
attempted to inflict or has inflicted serious bodily harm upon the respondent
or another since the respondent's acceptance for evaluation, or that the
respondent was committed initially as a result of conduct in which the
respondent attempted or inflicted serious bodily harm upon the respondent or
another, or that the respondent continues to be gravely disabled, or that the
respondent demonstrates a current intent to carry out plans of serious harm to
the respondent or another;
(2) allege that the respondent has
received appropriate and adequate care and treatment during the respondent's
30-day commitment;
(3) be verified by the professional
person in charge, or that person's professional designee, during the 30-day
commitment.
(b) The court shall have copies of the petition for 90-day
commitment served upon the respondent, the respondent's attorney, and the
respondent's guardian, if any. The petition for 90-day commitment and proofs of
service shall be filed with the clerk of the court, and a date for hearing
shall be set, by the end of the next judicial day, for not later than five
judicial days from the date of filing of the petition. The clerk shall notify
the respondent, the respondent's attorney, and the petitioner of the hearing
date at least three judicial days in advance of the hearing.
(c) Findings of fact relating to the respondent's behavior
made at a 30-day commitment hearing under AS 47.30.735 shall be admitted as
evidence and may not be rebutted except that newly discovered evidence may be
used for the purpose of rebutting the findings.
Sec. 47.30.745. 90-day
commitment hearing rights.
(a) A respondent subject to a petition for 90-day commitment
has, in addition to the rights specified elsewhere in this chapter, or
otherwise applicable, the rights enumerated in this section. Written notice of
these rights shall be served on the respondent and the respondent's attorney
and guardian, if any, and may be served on an adult designated by the
respondent at the time the petition for 90-day commitment is served. An attempt
shall be made by oral explanation to ensure that the respondent understands the
rights enumerated in the notice. If the respondent does not understand English,
the explanation shall be given in a language the respondent understands.
(b) Unless the respondent is released or is admitted
voluntarily following the filing of a petition and before the hearing, the
respondent is entitled to a judicial hearing within five judicial days of the
filing of the petition as set out in AS 47.30.740(b) to determine if the
respondent is mentally ill and as a result is likely to cause harm to self or
others, or if the respondent is gravely disabled. If the respondent is admitted
voluntarily following the filing of the petition, the voluntary admission
constitutes a waiver of any hearing rights under AS 47.30.740 or under AS
47.30.685. If at any time during the respondent's voluntary admission under
this subsection, the respondent submits to the facility a written request to
leave, the professional person in charge may file with the court a petition for
a 180-day commitment of the respondent under AS 47.30.770. The 180-day
commitment hearing shall be scheduled for a date not later than 90 days after
the respondent's voluntary admission.
(c) The respondent is entitled to a jury trial upon request
filed with the court if the request is made at least two judicial days before
the hearing. If the respondent requests a jury trial, the hearing may be
continued for no more than 10 calendar days. The jury shall consist of six persons.
(d) If a jury trial is not requested, the court may still
continue the hearing at the respondent's request for no more than 10 calendar
days.
(e) The respondent has a right to retain an independent licensed
physician or other mental health professional to examine the respondent and to
testify on the respondent's behalf. Upon request by an indigent respondent, the
court shall appoint an independent licensed physician or other mental health
professional to examine the respondent and testify on the respondent's behalf.
The court shall consider an indigent respondent's request for a specific
physician or mental health professional. A motion for the appointment may be
filed in court at any reasonable time before the hearing and shall be acted
upon promptly. Reasonable fees and expenses for expert examiners shall be
determined by the rules of court.
(f) The proceeding shall in all respects be in accord with
constitutional guarantees of due process and, except as otherwise specifically
provided in AS 47.30.700 - 47.30.915, the rules of evidence and procedure in
civil proceedings.
(g) Until the court issues a final decision, the respondent
shall continue to be treated at the treatment facility unless the petition for
90-day commitment is withdrawn. If a decision has not been made within 20 days
of filing of the petition, not including extensions of time due to jury trial
or other requests by the respondent, the respondent shall be released.
Sec. 47.30.750. Conduct
of hearing.
The hearing under AS 47.30.745 shall be conducted in
the same manner, and with the same rights for the respondent, as set out in AS
47.30.735(b).
Sec. 47.30.755. Court
order.
(a) After the hearing and within the time limit specified in
AS 47.30.745, the court may commit the respondent to a treatment facility for
no more than 90 days if the court or jury finds by clear and convincing
evidence that the respondent is mentally ill and as a result is likely to cause
harm to self or others, or is gravely disabled.
(b) If the court finds that there is a less restrictive
alternative available and that the respondent has been advised of and refused
voluntary treatment through the alternative, the court may order the less
restrictive alternative treatment after acceptance by the program of the
respondent for a period not to exceed 90 days.
Sec. 47.30.760.
Placement at closest facility.
Treatment shall always be available at a state-operated
hospital; however, if space is available and upon acceptance by another
treatment facility, a respondent who is committed by the court shall be placed
by the department at the designated treatment facility closest to the
respondent's home unless the court finds that
(1) another treatment facility in
the state has a program more suited to the respondent's condition, and this
interest outweighs the desirability of the respondent being closer to home;
(2) another treatment facility in
the state is closer to the respondent's friends or relatives who could benefit
the respondent through their visits and communications; or
(3) the respondent wants to be
further removed from home, and the mental health professionals who sought the
respondent's commitment concur in the desirability of removed placement.
Sec. 47.30.765.
Appeal.
The respondent has the right to an appeal from an order of
involuntary commitment. The court shall inform the respondent of this right.
Sec. 47.30.770.
Additional 180-day commitment.
(a) The respondent shall be released from involuntary treatment
at the expiration of 90 days unless the professional person in charge files a
petition for a 180-day commitment conforming to the requirements of AS
47.30.740(a) except that all references to "30-day commitment" shall
be read as "the previous 90-day commitment" and all references to
"90-day commitment" shall be read as "180-day commitment".
(b) The procedures for service of the petition, notification
of rights, and judicial hearing shall be as set out in AS 47.30.740 -
47.30.750. If the court or jury finds by clear and convincing evidence that the
grounds for 90-day commitment as set out in AS 47.30.755 are present,
the court may order the respondent committed for an additional treatment period
not to exceed 180 days from the date on which the first 90-day treatment period
would have expired.
(c) Successive 180-day commitments are permissible on the
same ground and under the same procedures as the original 180-day commitment.
An order of commitment may not exceed 180 days.
(d) Findings of fact relating to the respondent's behavior
made at a 30-day commitment hearing under AS 47.30.735, a 90-day commitment
hearing under AS 47.30.750, or a previous 180-day commitment hearing under this
section shall be admitted as evidence and may not be rebutted except that newly
discovered evidence may be used for the purpose of rebutting the findings.
Sec. 47.30.772.
Medication and treatment.
An evaluation facility or designated treatment facility may
administer medication or other treatment to an involuntarily committed patient
only in a manner that is consistent with the provisions of AS 47.30.825 -
47.30.865.
Sec. 47.30.775.
Commitment of minors.
The provisions of AS 47.30.700 - 47.30.815 apply to minors.
However, all notices required to be served on the respondent in AS 47.30.700 -
47.30.815 shall also be served on the parent or guardian of a respondent who is
a minor, and parents or guardians of a minor respondent shall be notified that
they may appear as parties in any commitment proceeding concerning the minor
and that as parties they are entitled to retain their own attorney or have the
office of public advocacy appointed for them by the court. A minor respondent
has the same rights to waiver and informed consent as an adult respondent under
AS 47.30.660 - 47.30.915; however, the minor shall be represented by counsel in
waiver and consent proceedings.
Sec. 47.30.780. Early
discharge.
The professional person in charge shall at any time
discharge a respondent on the ground that the respondent is no longer gravely
disabled or likely to cause serious harm as a result of mental illness. A
certificate to this effect shall be sent to the court which shall enter an
order officially terminating the involuntary commitment.
Sec. 47.30.785.
Authorized absences.
A respondent undergoing involuntary treatment on an
inpatient basis under AS 47.30.700 - 47.30.815 may be authorized to be absent
from the treatment facility during times specified by the professional person
in charge, or that person's professional designee, when an authorization to be
absent is in the best interests of the respondent and the respondent is not
likely to cause harm to self or others.
Sec. 47.30.790.
Unauthorized absences: return to facility; required notice.
When a respondent undergoing involuntary treatment on an
inpatient basis is absent from the treatment facility without, or in excess of,
authorization under AS 47.30.785, the professional person in charge, or that
person's professional designee, may contact the appropriate peace officers who
shall take the respondent into custody and return the respondent to the
treatment facility. If it is determined by the professional person in charge to
be necessary, a member of the treatment facility staff shall accompany the
peace officers when they take the respondent into custody. In addition, the
family or guardian of the patient and any person known to have been threatened
by the patient shall be notified of the patient's unauthorized absence
immediately upon its discovery.
Sec. 47.30.795. Involuntary
outpatient care for committed persons.
(a) A respondent who was originally committed to involuntary
inpatient care under AS 47.30.700 - 47.30.915 may be released before the
expiration of the commitment period if a provider of outpatient care accepts
the respondent for specified outpatient treatment for a period of time not to
exceed the duration of the commitment, and if the professional person in
charge, or that person's professional designee, finds that
(1) it is not necessary to treat the
respondent as an inpatient to prevent the respondent from harming self or
others; and
(2) there is reason to believe that
the respondent's mental condition would improve as a result of the outpatient
treatment.
(b) A copy of the conditions for early release shall be
given to the respondent and the respondent's attorney and guardian, if any, the
provider of outpatient care, and the court.
(c) If during the commitment period the provider of
outpatient care determines that the respondent can no longer be treated on an
outpatient basis because the respondent is likely to cause harm to self or
others or is gravely disabled, the provider shall give the respondent oral and
written notice that the respondent must return to the treatment facility within
24 hours, with copies to the respondent's attorney and guardian, if any, the
court, and the inpatient treatment facility. If the respondent fails to arrive
at the treatment facility within 24 hours after receiving the notice, the
professional person in charge may contact the appropriate peace officers who
shall take the respondent into custody and transport the respondent to the
facility. If it is determined by the professional person in charge to be
necessary, a member of the treatment facility staff shall accompany the peace
officers when they take the respondent into custody.
(d) If the provider of outpatient care determines that the
respondent will require continued outpatient care after the expiration of the
commitment period, the provider may initiate further commitment proceedings as
if the provider were the professional person in charge, and the provisions of
AS 47.30.660 - 47.30.915 apply, except that provisions relating to inpatient
treatment shall be read as applicable to outpatient treatment.
Sec. 47.30.800.
Conversion of involuntary outpatient treatment to inpatient commitment.
(a) A respondent ordered by the court under the provisions
of AS 47.30.700 - 47.30.915 to receive involuntary outpatient treatment may be
required to undergo inpatient treatment when the provider of outpatient care
finds that (1) the respondent is mentally ill and is likely to cause serious
harm to self or others or is still gravely disabled; (2) the respondent's
behavior since the hearing resulting in court-ordered treatment indicates that
the respondent now needs inpatient treatment to protect self or others; (3)
there is reason to believe that the respondent's mental condition will improve
as a result of inpatient treatment; and (4) there is an inpatient facility
appropriate to the respondent's need which will accept the respondent as a
patient. Treatment for these respondents shall be available at state-operated
hospitals at all times.
(b) Upon making the findings specified in (a) of this
section, the provisions of AS 47.30.795(c) relating to notice and AS 47.30.745
relating to hearing apply.
Sec. 47.30.803.
Conversion from involuntary to voluntary status.
A patient subject to involuntary hospitalization under AS
47.30.705, 47.30.735, or AS 47.30.755 may at any time convert to voluntary
status if the responsible physician agrees that
(1) the patient is an appropriate
patient for voluntary hospitalization; and
(2) the conversion is made in good
faith.
Sec. 47.30.805.
Computing periods of time.
(a) Except as provided in (b) of this section,
(1) computations of a 72-hour
evaluation period under AS 47.30.715 or a 48-hour detention period under AS
47.30.685 do not include Saturdays, Sundays, legal holidays, or any period of
time necessary to transport the respondent to the treatment facility;
(2) a 30-day commitment period
expires at the end of the 30th day after the 72 hours following initial
acceptance;
(3) a 90-day commitment period
expires at the end of the 90th day after the expiration of a 30-day period of
treatment;
(4) a 180-day commitment period
expires at the end of the 180th day, after the expiration of a 90-day period of
treatment or previous 180-day period, whichever is applicable.
(b) When a respondent has failed to appear or been absent
through the respondent's own actions contrary to any order properly made or
entered under AS 47.30.660 - 47.30.915, the relevant commitment period shall be
extended for a period of time equal to the respondent's absence if written
notice of absence is promptly provided to the respondent's attorney and
guardian, if there is one, and if, within 24 hours after the respondent has
returned to the evaluation or treatment facility, written notice of the
corresponding extension and the reason for it is given to the respondent and
the respondent's attorney and guardian, if any, and to the court.
Sec. 47.30.810. Habeas
corpus not limited.
Nothing in AS 47.30.660 - 47.30.915 may be construed as
limiting a person's right to a writ of habeas corpus.
Sec. 47.30.815. Limitation
of liability; bad faith application a felony.
(a) A person acting in good faith upon either actual
knowledge or reliable information who makes application for evaluation or
treatment of another person under AS 47.30.700 - 47.30.915 is not subject
to civil or criminal liability.
(b) The following persons may not be held civilly or
criminally liable for detaining a person under AS 47.30.700 - 47.30.915 or for
releasing a person under AS 47.30.700 - 47.30.915 at or before the end of the
period for which the person was admitted or committed for evaluation or
treatment if the persons have performed their duties in good faith and without
gross negligence:
(1) an officer of a public or
private agency;
(2) the superintendent, the
professional person in charge, the professional designee of the professional
person in charge, and the attending staff of a public or private agency;
(3) a public official performing
functions necessary to the administration of AS 47.30.700 - 47.30.915;
(4) a peace officer or mental health
professional responsible for detaining or transporting a person under AS
47.30.700 - 47.30.915.
(c) A person who willfully initiates an involuntary
commitment procedure under AS 47.30.700 without having good cause to believe
that the other person is suffering from a mental illness and as a result is
gravely disabled or likely to cause serious harm to self or others, is guilty
of a felony.
Article 10. PATIENT
RIGHTS
Sec. 47.30.825.
Patient medical rights.
(a) A patient who is receiving services under AS 47.30.660 -
47.30.915 has the rights described in this section.
(b) The patient and the following persons, at the request of
the patient, are entitled to participate in formulating the patient's
individualized treatment plan and to participate in the evaluation process as
much as possible, at minimum to the extent of requesting specific forms of
therapy, inquiring why specific therapies are or are not included in the
treatment program, and being informed as to the patient's present medical and
psychological condition and prognosis: (1) the patient's counsel, (2) the
patient's guardian, (3) a mental health professional previously engaged in the
patient's care outside of the evaluation facility or designated treatment
facility, (4) a representative of the patient's choice, (5) a person designated
as the patient's attorney-in-fact with regard to mental health treatment
decisions under AS 13.26.332 - 13.26.358, AS 47.30.950 - 47.30.980, or other
power-of-attorney, and (6) the adult designated under AS 47.30.725. The mental
health care professionals may not withhold any of the information described in
this subsection from the patient or from others if the patient has signed a
waiver of confidentiality or has designated the person who would receive the
information as an attorney-in-fact with regard to mental health treatment.
(c) A patient who is capable of giving informed consent has
the right to give and withhold consent to medication and treatment in all
situations that do not involve a crisis or impending crisis as described in AS
47.30.838(a)(1). A facility shall follow the procedures required under AS
47.30.836 - 47.30.839 before administering psychotropic medication.
(d) A locked quiet room, or other form of physical restraint, may not be used, except as provided in this subsection, unless a patient is likely to physically harm self or others unless restrained. The form of restraint used shall be that which is in the patient's best interest and which constitutes the least restrictive alternative available. When practicable, the patient shall be consulted as to the patient's preferen