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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 preference
among forms of adequate, medically advisable restraints including medication,
and that preference shall be honored. Nothing in this section is intended to
limit the right of staff to use a quiet room at the patient's request or with
the patient's knowing concurrence when considered in the best interests of the
patient. Patients placed in a quiet room or other physical restraint shall be
checked at least every 15 minutes or more often if good medical practice so
indicates. Patients in a quiet room must be visited by a staff member at least
once every hour and must be given adequate food and drink and access to
bathroom facilities. At no time may a patient be kept in a quiet room or other
form of physical restraint against the patient's will longer than necessary to
accomplish the purposes set out in this subsection. All uses of a quiet room or
other restraint shall be recorded in the patient's medical record, the
information including but not limited to the reasons for its use, the duration
of use, and the name of the authorizing staff member.
(e) [Repealed, Sec. 12 ch 109
(f) A patient capable of giving informed consent has the
absolute right to accept or refuse electroconvulsive
therapy or aversive conditioning. A patient who lacks substantial capacity to
make this decision may not be given this therapy or conditioning without a
court order unless the patient expressly authorized that particular form of
treatment in a declaration properly executed under AS 47.30.950 - 47.30.980 or
has authorized an attorney-in-fact to make this decision and the
attorney-in-fact consents to the treatment on behalf of the patient.
(g) In no event may treatment include psychosurgery,
lobotomy, or other comparable form of treatment without specific informed
consent of the patient, including a minor unless the minor is clearly too young
or disabled to give an informed consent in which case the consent of the
minor's legal guardian is required. In addition, this treatment may not be
given without a court order after hearing compatible with full due process.
(h) When, in the written opinion of a patient's attending
physician, a true medical emergency exists and a surgical operation is
necessary to save the life, physical health, eyesight, hearing or member of the
patient, the professional person in charge, or that person's professional
designee, may give consent to the surgical operation if time will not permit
obtaining the consent of the proper relatives or guardian or appropriate
judicial authority. However, an operation may not be authorized if the patient
is not a minor and knowingly withholds consent on religious grounds.
(i) A patient upon discharge shall
be given a discharge plan specifying the kinds and amount of care and treatment
the patient should have after discharge and such other steps as the patient
might take to benefit the patient's mental health after leaving the facility.
The patient shall have the right to participate, as far as practicable, in
formulating the patient's discharge plan. A copy of the plan shall be given to
the patient, the patient's guardian, an adult designated in accordance with AS
47.30.725, the court if appropriate, and any follow-up agencies.
Sec. 47.30.830.
Prohibition of experimental treatments.
(a) Experimental treatments involving any significant risk
of physical or psychological harm may not be administered to a patient.
(b) If the personnel of an evaluation or treatment facility
are uncertain as to whether a proposed treatment is experimental or is
experimental as applied to a particular patient or would involve a significant
risk of mental or physical harm to the patient, the matter may be referred to
the commissioner for a determination. The patient, the patient's attorney and
guardian, if any, and an adult designated by the patient, shall, simultaneously
with the referral to the commissioner, be provided with copies of all the
documents by which the referral is made and shall have the opportunity to
provide evidence to the commissioner on the question.
(c) A determination by the commissioner that a treatment is
experimental and entails significant risks of mental or physical harm is
binding upon all persons involved in the administration of treatment to a
patient.
Sec. 47.30.833.
Nutritional evaluation; right to proper diet.
(a) A treatment facility shall conduct a nutritional
evaluation of a person admitted or committed to a treatment facility for
evaluation or treatment, whether the person is a voluntary or involuntary
patient. The evaluation shall be conducted within the first week after the
patient is admitted or committed.
(b) Notwithstanding (a) of this section, a treatment
facility is not required to conduct a nutritional evaluation of a patient who
is released within 72 hours of arrival.
(c) A patient has the right to a nutritionally sound and
medically appropriate diet. After conducting the nutritional evaluation
required under (a) of this section, the treatment facility shall take
appropriate steps to correct the patient's nutritional deficiencies.
Sec. 47.30.835. Civil
rights not impaired.
(a) A person may not deny to a person who is undergoing
evaluation or treatment under AS 47.30.660 - 47.30.915 a civil right, including
but not limited to, the right to free exercise of religion and the right to
dispose of property, sue and be sued, enter into contractual relationships, and
vote. A person who violates this subsection commits the crime of interference
with constitutional rights under AS 11.76.110.
(b) Court-ordered evaluation or treatment under AS 47.30.660
- 47.30.915 is not a determination of legal incapacity under AS 13.26.005 -
13.26.330.
Sec. 47.30.836.
Psychotropic medication in nonemergencies.
An evaluation facility or designated treatment facility may
not administer psychotropic medication to a patient in a situation that does
not involve a crisis under AS 47.30.838 (a)(1)
unless the patient
(1) has the capacity to give informed
consent to the medication, as described in AS 47.30.837, and gives that
consent; the facility shall document the consent in the patient's medical
chart;
(2) authorized the use of
psychotropic medication in a declaration properly executed under AS 47.30.950 -
47.30.980 or authorized an attorney-in-fact to consent to the use of
psychotropic medication for the patient and the attorney-in-fact does consent;
or
(3) is determined by a court to lack
the capacity to give informed consent to the medication and the court approves
use of the medication under AS 47.30.839.
Sec. 47.30.837.
Informed consent.
(a) A patient has the capacity to give informed consent for
purposes of AS 47.30.836 if the patient is competent to make mental health or
medical treatment decisions and the consent is voluntary and informed.
(b) When seeking a patient's informed consent under this
section, the evaluation facility or designated treatment facility shall give
the patient information that is necessary for informed consent in a manner that
ensures maximum possible comprehension by the patient.
(c) If an evaluation facility or designated treatment
facility has provided to the patient the information necessary for the
patient's consent to be informed and the patient voluntarily consents, the
facility may administer psychotropic medication to the patient unless the
facility has reason to believe that the patient is not competent to make
medical or mental health treatment decisions. If the facility has reason to
believe that the patient is not competent to make medical or mental health
treatment decisions and the facility wishes to administer psychotropic
medication to the patient, the facility shall follow the procedures of AS
47.30.839.
(d) In this section,
(1) "competent" means that
the patient
(A) has the capacity to assimilate
relevant facts and to appreciate and understand the patient's situation with
regard to those facts, including the information described in (2) of this
subsection;
(B) appreciates that the patient has
a mental disorder or impairment, if the evidence so indicates; denial of a
significantly disabling disorder or impairment, when faced with substantial
evidence of its existence, constitutes evidence that the patient lacks the
capability to make mental health treatment decisions;
(C) has the capacity to participate
in treatment decisions by means of a rational thought process; and
(D) is able to articulate reasonable
objections to using the offered medication;
(2) "informed" means that
the evaluation facility or designated treatment facility has given the patient
all information that is material to the patient's decision to give or withhold
consent, including
(A) an explanation of the patient's
diagnosis and prognosis, or their predominant symptoms, with and without the
medication;
(B) information about the proposed
medication, its purpose, the method of its administration, the recommended
ranges of dosages, possible side effects and benefits, ways to treat side
effects, and risks of other conditions, such as tardive
dyskinesia;
(C) a review of the patient's
history, including medication history and previous side effects from
medication;
(D) an explanation of interactions
with other drugs, including over-the-counter drugs, street drugs, and alcohol;
(E) information about alternative
treatments and their risks, side effects, and benefits, including the risks of nontreatment; and
(F) a statement describing the
patient's right to give or withhold consent to the administration of
psychotropic medications in nonemergency situations,
the procedure for withdrawing consent, and notification that a court may
override the patient's refusal;
(3) "voluntary" means
having genuine freedom of choice; a choice may be encouraged and remain
voluntary, but consent obtained by using force, threats, or direct or indirect
coercion is not voluntary.
Sec. 47.30.838.
Psychotropic medication in emergencies.
(a) Except as provided in (c) and (d) of this section, an
evaluation facility or designated treatment facility may administer
psychotropic medication to a patient without the patient's informed consent,
regardless of whether the patient is capable of giving informed consent, only
if
(1) there is a crisis situation, or
an impending crisis situation, that requires immediate use of the medication to
preserve the life of, or prevent significant physical harm to, the patient or
another person, as determined by a licensed physician or a registered nurse;
the behavior or condition of the patient giving rise to a crisis under this
paragraph and the staff's response to the behavior or condition must be
documented in the patient's medical record; the documentation must include an
explanation of alternative responses to the crisis that were considered or
attempted by the staff and why those responses were not sufficient; and
(2) the medication is ordered by a
licensed physician; the order
(A) may be written or oral and may
be received by telephone, facsimile machine, or in person;
(B) may include an initial dosage
and may authorize additional, as needed, doses; if additional, as needed, doses
are authorized, the order must specify the medication, the quantity of each
authorized dose, the method of administering the medication, the maximum
frequency of administration, the specific conditions under which the medication
may be given, and the maximum amount of medication that may be administered to
the patient in a 24-hour period;
(C) is valid for only 24 hours and
may be renewed by a physician for a total of 72 hours, including the initial 24
hours, only after a personal assessment of the patient's status and a
determination that there is still a crisis situation as described in (1) of
this subsection; upon renewal of an order under this subparagraph, the facts
supporting the renewal shall be written into the patient's medical record.
(b) When a patient is no longer in the crisis situation that
lead to the use of psychotropic medication without consent under (a) of this
section, an appropriate health care professional shall discuss the crisis with
the patient, including precursors to the crisis, in order to increase the
patient's and the professional's understanding of the episode and to discuss
prevention of future crises. The professional shall seek and consider the
patient's recommendations for managing potential future crises.
(c) If crisis situations as described in (a)(1) of this
section occur repeatedly, or if it appears that they may occur repeatedly, the
evaluation facility or designated treatment facility may administer
psychotropic medication during no more than three crisis periods without the
patient's informed consent only with court approval under AS 47.30.839.
(d) An evaluation facility or designated treatment facility
may administer psychotropic medication to a patient without the patient's informed
consent if the patient is unable to give informed consent but has authorized
the use of psychotropic medication in a declaration properly executed under AS
47.30.950 - 47.30.980 or has authorized an attorney-in-fact to consent to this
form of treatment for the patient and the attorney-in-fact does consent.
Sec. 47.30.839.
Court-ordered administration of medication.
(a) An evaluation facility or designated treatment facility
may use the procedures described in this section to obtain court approval of
administration of psychotropic medication if
(1) there have been, or it appears
that there will be, repeated crisis situations as described in AS
47.30.838(a)(1) and the facility wishes to use psychotropic medication in
future crisis situations; or
(2) the facility wishes to use
psychotropic medication in a noncrisis situation and
has reason to believe the patient is incapable of giving informed consent.
(b) An evaluation facility or designated treatment facility
may seek court approval for administration of psychotropic medication to a
patient by filing a petition with the court, requesting a hearing on the
capacity of the person to give informed consent.
(c) A patient who is the subject of a petition under (b) of
this section is entitled to an attorney to represent the patient at the
hearing. If the patient cannot afford an attorney, the court shall direct the
Public Defender Agency to provide an attorney. The court may, upon request of
the patient's attorney, direct the office of public advocacy to provide a
guardian ad litem for the patient.
(d) Upon the filing of a petition under (b) of this section,
the court shall direct the office of public advocacy to provide a visitor to
assist the court in investigating the issue of whether the patient has the
capacity to give or withhold informed consent to the administration of
psychotropic medication. The visitor shall gather pertinent information and
present it to the court in written or oral form at the hearing. The information
must include documentation of the following:
(1) the patient's responses to a
capacity assessment instrument administered at the request of the visitor;
(2) any expressed wishes of the
patient regarding medication, including wishes that may have been expressed in
a power of attorney, a living will, or oral statements of the patient,
including conversations with relatives and friends that are significant persons
in the patient's life as those conversations are remembered by the relatives
and friends; oral statements of the patient should be accompanied by a
description of the circumstances under which the patient made the statements,
when possible.
(e) Within 72 hours after the filing of a petition under (b)
of this section, the court shall hold a hearing to determine the patient's capacity
to give or withhold informed consent as described in AS 47.30.837 and the
patient's capacity to give or withhold informed consent at the time of
previously expressed wishes regarding medication if previously expressed wishes
are documented under (d)(2) of this section. The court
shall consider all evidence presented at the hearing, including evidence
presented by the guardian ad litem, the petitioner, the visitor, and the
patient. The patient's attorney may cross-examine any witness, including the guardian
ad litem and the visitor.
(f) If the court determines that the patient is competent to
provide informed consent, the court shall order the facility to honor the
patient's decision about the use of psychotropic medication.
(g) If the court determines that the patient is not
competent to provide informed consent and, by clear and convincing evidence,
was not competent to provide informed consent at the time of previously
expressed wishes documented under (d)(2) of this section, the court shall approve
the facility's proposed use of psychotropic medication. The court's approval
under this subsection applies to the patient's initial period of commitment if
the decision is made during that time period. If the decision is made during a
period for which the initial commitment has been extended, the court's approval
under this subsection applies to the period for which commitment is extended.
(h) If an evaluation facility or designated treatment
facility wishes to continue the use of psychotropic medication without the
patient's consent during a period of commitment that occurs after the period in
which the court's approval was obtained, the facility shall file a request to
continue the medication when it files the petition to continue the patient's
commitment. The court that determines whether commitment shall continue shall
also determine whether the patient continues to lack the capacity to give or
withhold informed consent by following the procedures described in (b) - (e) of
this section. The reports prepared for a previous hearing under (e) of this
section are admissible in the hearing held for purposes of this subsection,
except that they must be updated by the visitor and the guardian ad litem.
(i) If a patient for whom a court
has approved medication under this section regains competency at any time
during the period of the patient's commitment and gives informed consent to the
continuation of medication, the evaluation facility or designated treatment
facility shall document the patient's consent in the patient's file in writing.
Sec. 47.30.840. Right
to privacy and personal possessions.
(a) A person undergoing evaluation or treatment under AS
47.30.660 - 47.30.915
(1) may not be photographed without the
person's consent and that of the person's guardian if a minor, except that the
person may be photographed upon admission to a facility for identification and
for administrative purposes of the facility; all photographs shall be
confidential and may only be released by the facility to the patient or the
patient's designee unless a court orders otherwise;
(2) at the time of admission to an
evaluation or treatment facility, shall have reasonable precautions taken by
the staff to inventory and safeguard the patient's personal property; a copy of
the inventory signed by the staff member making it shall be given to the
patient and made available to the patient's attorney and any other person
authorized by the patient to inspect the document;
(3) shall have access to an
individual storage space for the patient's private use while undergoing
evaluation or treatment;
(4) shall be permitted to wear
personal clothing, to keep and use personal possessions including toilet
articles if they are not considered unsafe for the patient or other patients
who might have access to them, and to keep and be allowed to spend a reasonable
sum of the patient's own money for the patient's needs and comfort;
(5) shall be allowed to have
visitors at reasonable times;
(6) shall have ready access to
letter writing materials, including stamps, and have the right to send and
receive unopened mail;
(7) shall have reasonable access to
a telephone, both to make and receive confidential calls;
(8) has the right to be free of
corporal punishment;
(9) has the right to reasonable
opportunity for indoor and outdoor exercise and recreation;
(10) has the right, at any time, to
have a telephone conversation with or be visited by an attorney;
(11) may not be retaliated against
or subjected to any adverse change of conditions or treatment solely because of
assertion of rights under this section.
(b) The patient's rights under (a)(4), (5), (7) and (9) of
this section may be suspended temporarily, following the initial evaluation
period, if the professional person in charge of the patient determines that
granting the patient those rights will pose a threat to the safety or
well-being of the patient or others.
Sec. 47.30.845.
Confidential records.
Information and records obtained in the course of a screening
investigation, evaluation, examination, or treatment are confidential and are
not public records, except as the requirements of a hearing under AS 47.30.660
- 47.30.915 may necessitate a different procedure. Information and records may
be copied and disclosed under regulations established by the department only to
(1) a physician or a provider of
health, mental health, or social and welfare services involved in caring for,
treating, or rehabilitating the patient;
(2) the patient or an individual to
whom the patient has given written consent to have information disclosed;
(3) a person authorized by a court
order;
(4) a person doing research or
maintaining health statistics if the anonymity of the patient is assured and
the facility recognizes the project as a bona fide research or statistical
undertaking;
(5) the Department of Corrections in
a case in which a prisoner confined to the state prison is a patient in the
state hospital on authorized transfer either by voluntary admission or by court
order;
(6) a governmental or law
enforcement agency when necessary to secure the return of a patient who is on
unauthorized absence from a facility where the patient was undergoing
evaluation or treatment;
(7) a law enforcement agency when
there is substantiated concern over imminent danger to the community by a
presumed mentally ill person;
(8) the department in a case in
which services provided under AS 47.30.660 - 47.30.915 are paid for, in whole
or in part, by the department or in which a person has applied for or has
received assistance from the department for those services.
Sec. 47.30.847.
Patients' grievance procedures.
(a) A patient has the right to bring grievances about the
patient's treatment, care, or rights to an impartial body within an evaluation facility
or designated treatment facility.
(b) An evaluation facility and a designated treatment
facility shall have a formal grievance procedure for patient grievances brought
under (a) of this section. The facility shall inform each patient of the existence
and contents of the grievance procedure.
(c) An evaluation facility and a designated treatment
facility shall have a designated staff member who is trained in mental health
consumer advocacy who will serve as an advocate, upon a patient's request, to
assist the patient in bringing grievances or pursuing other redress for
complaints concerning care, treatment, and rights.
Sec. 47.30.850.
Expunging or sealing records.
Following the discharge of a respondent from a treatment facility
or the issuance of a court order denying a petition for commitment, the
respondent may at any time move to have all court records pertaining to the
proceedings expunged on condition that the respondent file a full release of
all claims of whatever nature arising out of the proceedings and the statements
and actions of persons and facilities in connection with the proceedings. Upon
the filing of the motion and full release, the court shall order the court
records either expunged or sealed, whichever the court
considers appropriate under the circumstances.
Sec. 47.30.855.
Posting of rights.
The rights set out in AS 47.30.825 - 47.30.855 shall be
prominently posted in all treatment facilities in places accessible to all
patients. A patient who does not understand English shall have the patient
rights explained in a language the patient understands.
Sec. 47.30.860.
Notices in languages other than English.
When practicable all documents and notices required by AS
47.30.660 - 47.30.915 to be served on a respondent, or on the respondent's
parents, guardian or adult designee, shall be explained in a language the
person understands if the respondent is not competent in English.
Sec. 47.30.865.
Discrimination prohibited.
(a) The fact that a person is or has been evaluated or
treated for mental illness may not be a basis for discrimination in
(1) seeking employment;
(2) resuming or continuing
professional practice or previous occupation;
(3) obtaining or retaining housing;
(4) obtaining or retaining licenses
or permits, including but not limited to a motor vehicle license, motor vehicle
operator's and chauffeur's license, and a professional or occupational license.
(b) Applications for positions, licenses, and housing may not
contain requests for information concerning evaluation or treatment
experiences.
(c) A person may not aid, abet, incite, compel, or coerce
the doing of an act forbidden under this section or attempt to do so.
Article 11.
MISCELLANEOUS PROVISIONS
Sec. 47.30.870.
Transportation.
When a person is to be involuntarily committed to a
facility, the department shall arrange, and is authorized to pay for, the
person's necessary transportation to the designated facility accompanied by
appropriate persons and if necessary by a peace officer. The department shall
pay return transportation of a person, the person's escorts, and if necessary a
peace officer, after a determination that the person is not committable, at the
end of a commitment period, or at the end of a voluntary stay at a treatment
facility following an evaluation conducted in accordance with AS 47.30.715.
When advisable, one or more relatives or friends shall be permitted to
accompany the person. The department may pay necessary travel, housing, and
meal expenses incurred by one relative or friend in accompanying the person if
the department determines that the person's best interests require that the
person be accompanied by the relative or friend and the relative or friend is
indigent.
Sec. 47.30.875.
Nonresident patients.
(a) The admission papers of a person who is admitted to a
treatment facility under AS 47.30.660 - 47.30.915 must include a statement as
to the person's residence. The department may return a patient who is not a
resident of the state to the state of the person's residence with court
approval if the person has been committed. If the state in which the person has
residence does not accept the person as a patient, the person shall be treated
as a resident of this state under the provisions of AS 47.30.660 - 47.30.915.
(b) To facilitate the return of nonresident patients the
department may enter into a reciprocal agreement or compact with another state
providing for the prompt return under appropriate supervision of residents of
that state who are mentally ill. A mentally ill resident of this state who has
been placed in a facility outside this state may be admitted with the approval
of the department to a treatment facility in the state designated by the
department. The department may enter into reciprocal agreements or contracts
with another state providing for custody, care or treatment, or return of
mentally ill residents of this state by the other state and for the custody and
care or treatment of mentally ill residents of that state by this state on a
reimbursable basis. A resident of this state who has been committed in another
state and is returned in accordance with this section shall, within 72 hours of
admission to the designated facility, be examined. After examination the mental
health professional in charge shall release the person or shall petition for
involuntary commitment as prescribed in AS 47.30.740.
(c) In taking action under (a) and (b) of this section,
consideration shall be given to the best interests of the patient, particularly
to the relationship of the patient to the patient's family, legal guardian, or
friends to maintain relationships and encourage visits beneficial to the
patient.
Sec. 47.30.885. Rights
outside state.
Nothing in AS 47.30.660 - 47.30.915 alters or impairs the
application or availability to a patient, while hospitalized in another state
under contractual arrangements entered in accordance with AS 47.30.660 -
47.30.915, of the rights, remedies, or safeguards provided by the laws of this
state.
Sec. 47.30.890.
Provision for personal needs upon discharge.
The department shall ensure that
(1) a patient is not discharged from
a treatment facility without suitable clothing; and
(2) a discharged indigent patient is
furnished
(A) suitable transportation to the
patient's permanent residence in this state or to another suitable place at the
discretion of the department; and
(B) a reasonable amount of money to
meet the patient's immediate needs.
Sec. 47.30.895.
Disposition of personal property and unclaimed money.
(a) Those unclaimed articles of personal property that are
covered by AS 34.45.110 - 34.45.260 and the unclaimed money in the custody of a
treatment facility that belong to a patient who dies before discharge, or to a
patient who leaves the hospital without authority, if unclaimed by the patient
or the legal heirs or representatives of the patient within one year after the
patient's death or departure, shall be disposed of in accordance with AS
34.45.110 - 34.45.780, and the other articles of the patient's personal
property shall be disposed of in the manner prescribed by the department and
the proceeds deposited in the general fund.
(b) If a mentally ill individual has died in a foreign
facility and the department desires to recover the patient's personal property
under this section, the commissioner or the commissioner's designated
representative may secure the property and for that purpose only is designated
the decedent's administrator. Property so recovered shall be disposed of as
provided by law.
Sec. 47.30.900.
Disposition of money and personal property subject to claim.
The department shall make diligent inquiry in every instance
after departure without authority or death of a patient, to ascertain the
whereabouts of the patient or that of the patient's legal heirs or
representatives, and shall turn over to the proper person the money or articles
of personal property in the custody of the facility to the credit of the
patient. Claims to the money or articles of personal property, including claims
by the state, may be presented to the department at any time. If a claim other
than by the state is established by clear and convincing evidence more than one
year after the death or departure without authority of a patient, it shall be
certified to the legislature for consideration and the legislature may pay the
claim.
Sec. 47.30.905. Fees
and expenses for judicial proceedings.
(a) The witnesses, expert witnesses, and the jury in
commitment proceedings under AS 47.30.660 - 47.30.915 are entitled to the fees,
compensation, and mileage established by the administrative rules of court for
other jurors and witnesses. Compensation, mileage, fees, transportation
expenses for a respondent, and other expenses arising from evaluation and
commitment proceedings shall be audited and allowed by the superior court of
the judicial district in which the proceedings are held. To the extent that
services of a peace officer are used to carry out the provisions of AS
47.30.660 - 47.30.915, the officer is entitled to fees and actual expenses from
the same source and in the same manner as for the officer's other official
duties.
(b) An attorney appointed for a person under AS 47.30.660 -
47.30.915 shall be compensated for services as follows:
(1) the person for whom an attorney
is appointed shall, if the person is financially able under standards as to
financial capability and indigency set by the court,
pay the costs of the legal services;
(2) if the person is indigent under
those standards, the costs of the services shall be paid by the state.
Sec. 47.30.910.
Liability for expense of placement in a facility.
(a) A patient, the patient's spouse, or the patient's parent
if the patient is under 18 years of age shall pay the charges for the care,
transportation, and treatment of the patient when the patient is hospitalized
under AS 47.30.670 - 47.30.915 at a state-operated facility, an evaluation
facility, or a designated treatment facility providing services under AS
47.30.670 - 47.30.915. The patient, the patient's spouse, or the patient's
parent if the patient is under 18 years of age shall make arrangements with a
state-operated facility, an evaluation facility, or a designated treatment
facility for payment of charges, including providing income information
necessary to determine eligibility for benefits under AS 47.31. Charges
assessed for services provided under AS 47.30.670 - 47.30.915 when a patient is
hospitalized at a state-operated facility may not exceed the actual cost of
care and treatment. The department may, when assessing charges for services
provided at a state-operated facility, consider the ability to pay of a
patient, a patient's spouse, or a patient's parent if the patient is under 18
years of age. In order to impose liability for a patient's cost of care at a
state-operated facility, the department shall issue an order for payment within
six months after the date on which the charge was incurred. The order remains
in effect unless modified by subsequent court order or department order. The
department may not impose liability for a patient's cost of care at a
state-operated facility if the patient would otherwise meet the eligibility
criteria, other than location of service, in AS 47.31.010.
(b) The department, the evaluation facility, or a designated
treatment facility shall make reasonable efforts to determine whether the
patient, the patient's spouse, or the patient's parent if the patient is under
18 years of age has a third-party payor or has the
available means to substantially contribute to the payment of charges, or
whether the patient is eligible for assistance under AS 47.31.
(c) If a patient is hospitalized at a state-operated
facility and the patient, the patient's spouse, or the patient's parent if the
patient is under 18 years of age fails to provide to the department information
necessary to determine whether there is a third-party payor
or available means to substantially contribute to the payment of charges, or
whether the patient would, if not hospitalized at a state-operated facility, be
eligible for assistance under AS 47.31, the department may issue an
administrative order imposing full liability for the patient's actual cost of
care on the patient, the patient's spouse, or the patient's parent if the
patient is under 18 years of age. The order remains in effect unless modified
by subsequent court order or department order.
(d) If a person who is hospitalized under AS 47.30.670 -
47.30.915 at an evaluation facility or a designated treatment facility cannot
pay or substantially contribute to the payment of charges described under this
section, the patient may apply for assistance under AS 47.31.
(e) The department may charge or accept money or property
from a person for the care or treatment of a patient at a state-operated
facility.
(f) Money paid by the patient or on the patient's behalf to
the department under this section shall be deposited in the general fund.
Sec. 47.30.915.
Definitions.
In AS 47.30.660- 47.30.915
(1) "commissioner" means
the commissioner of health and social services;
(2) "court" means a
superior court of the state;
(3) "department" means the
Department of Health and Social Services;
(4) "designated treatment
facility" or "treatment facility" means a hospital, clinic,
institution, center, or other health care facility that has been designated by
the department for the treatment or rehabilitation of mentally ill persons
under AS 47.30.670- 47.30.915 but does not include correctional institutions;
(5) "evaluation facility"
means a health care facility that has been designated or is operated by the
department to perform the evaluations described in AS 47.30.660 -
47.30.915, or a medical facility licensed under AS 18.20.020 or operated by the
federal government;
(6) "evaluation personnel"
means mental health professionals designated by the department to conduct
evaluations as prescribed in AS 47.30.660 - 47.30.915 who conduct evaluations
in places in which no staffed evaluation facility exists;
(7) "gravely disabled"
means a condition in which a person as a result of mental illness
(A) is in danger of physical harm
arising from such complete neglect of basic needs for food, clothing, shelter,
or personal safety as to render serious accident, illness, or death highly
probable if care by another is not taken; or
(B) will, if not treated, suffer or
continue to suffer severe and abnormal mental, emotional, or physical distress,
and this distress is associated with significant impairment of judgment,
reason, or behavior causing a substantial deterioration of the person's
previous ability to function independently;
(8) "inpatient treatment"
means care and treatment rendered inside or on the premises of a treatment
facility, or a part or unit of a treatment facility, for a continual period of
24 hours or longer;
(9) "least restrictive
alternative" means mental health treatment facilities and conditions of
treatment that are
(A) no more harsh, hazardous, or
intrusive than necessary to achieve the treatment objectives of the patient;
and
(B) involve no restrictions on
physical movement nor supervised residence or inpatient care except as
reasonably necessary for the administration of treatment or the protection of
the patient or others from physical injury;
(10) "likely to cause serious
harm" means a person who
(A) poses a substantial risk of
bodily harm to that person's self, as manifested by recent behavior causing,
attempting, or threatening that harm;
(B) poses a substantial risk of harm
to others as manifested by recent behavior causing, attempting, or threatening
harm, and is likely in the near future to cause physical injury, physical
abuse, or substantial property damage to another person; or
(C) manifests a current intent to
carry out plans of serious harm to that person's self or another;
(11) "mental health
professional" means a psychiatrist or physician who is licensed by the
State Medical Board to practice in this state or is employed by the federal
government; a clinical psychologist licensed by the state Board of Psychologist
and Psychological Associate Examiners; a psychological associate trained in
clinical psychology and licensed by the Board of Psychologist and Psychological
Associate Examiners; a registered nurse with a master's degree in psychiatric
nursing, licensed by the State Board of Nursing; a marital and family therapist
licensed by the Board of Marital and Family Therapy; a professional counselor
licensed by the Board of Professional Counselors; a clinical social worker
licensed by the Board of Social Work Examiners; and a person who
(A) has a master's degree in the field of
mental health;
(B) has at least 12 months of
post-masters working experience in the field of mental illness; and
(C) is working under the supervision
of a type of licensee listed in this paragraph;
(12) "mental illness"
means an organic, mental, or emotional impairment that has substantial adverse
effects on an individual's ability to exercise conscious control of the
individual's actions or ability to perceive reality or to reason or understand;
mental retardation, epilepsy, drug addiction, and alcoholism do not per se
constitute mental illness, although persons suffering from these conditions may
also be suffering from mental illness;
(13) "peace officer"
includes a state police officer, municipal or other local police officer,
state, municipal, or other local health officer, public health nurse, United
States marshal or deputy United States marshal, or a person authorized by the
court;
(14) "persons with mental
disorders" has the meaning given in AS 47.30.610.
(15) "professional person in
charge" means the senior mental health professional at a facility or that
person's designee; in the absence of a mental health professional it means the
chief of staff or a physician designated by the chief of staff;
(16) "provider of outpatient
care" means a mental health professional or hospital, clinic, institution,
center, or other health care facility designated by the department to accept
for treatment patients who are ordered to undergo involuntary outpatient
treatment by the court or who are released early from inpatient commitments on
condition that they undergo outpatient treatment;
(17) "screening
investigation" means the investigation and review of facts that have been
alleged to warrant emergency examination or treatment, including interviews
with the persons making the allegations, any other significant witnesses who
can readily be contacted for interviews, and, if possible, the respondent, and
an investigation and evaluation of the reliability and credibility of persons
providing information or making allegations;
(18) "state" means a state
of the
Article 12. PERSONAL
DECLARATION OF PREFERENCES FOR MENTAL HEALTH TREATMENT
Sec. 47.30.950.
Declaration.
(a) An adult of sound mind may make a declaration of
preferences or instructions regarding mental health treatment. The preferences
or instructions may include consent to or refusal of mental health treatment.
(b) A declaration for mental health treatment continues in
effect for three years or until revoked, whichever is sooner. The authority of
a named attorney-in-fact and an alternative attorney-in-fact named in the
declaration continues in effect as long as the declaration appointing the
attorney-in-fact is in effect or until the attorney-in-fact has withdrawn. If a
declaration for mental health treatment has been invoked and is in effect at
the expiration of three years after its execution, the declaration remains
effective until the principal is no longer incapable.
Sec. 47.30.952.
Designation of attorney-in-fact.
(a) A declaration may designate a competent adult to act as
attorney-in-fact to make decisions about mental health treatment. An
alternative attorney-in-fact may also be designated to act as attorney-in-fact
if the original designee is unable or unwilling to act at any time. An
attorney-in-fact who has accepted the appointment in writing may make decisions
about mental health treatment on behalf of the principal only when the
principal is incapable. The decisions must be consistent with desires the
principal has expressed in the declaration.
(b) The following may not serve as attorney-in-fact:
(1) the attending physician or
mental health service provider, or an employee of the physician or provider, if
the physician, provider, or employee is unrelated to the principal by blood,
marriage, or adoption;
(2) an owner, operator, or employee
of a health care facility in which the principal is a patient or resident if
the owner, operator, or employee is unrelated to the principal by blood,
marriage, or adoption.
(c) An attorney-in-fact may withdraw by giving notice to the
principal. If a principal is incapable, the attorney-in-fact may withdraw by
giving notice to the attending physician or provider. The attending physician
or provider shall note the withdrawal as part of the principal's medical
record. A person who has withdrawn under the provisions of this subsection may
rescind the withdrawal by executing an acceptance after the date of the
withdrawal. The acceptance must be in the same form as provided by AS 47.30.970
for accepting an appointment. A person who rescinds a withdrawal shall give
notice to the principal if the principal is capable or to the principal's
health care provider if the principal is incapable.
(d) The designation of an attorney-in-fact under this
section supersedes a previous or subsequent designation of an attorney-in-fact
regarding mental health treatment unless otherwise specifically provided in the
declaration executed under AS 47.30.950- 47.30.980 or in the document that
designates the other attorney-in-fact.
Sec. 47.30.954.
Signature; witnesses.
(a) A declaration is effective only if it is signed by the
principal and two competent adult witnesses. The witnesses must attest that the
principal is personally known to them, signed the declaration in their
presence, appears to be of sound mind, and is not under duress, fraud, or undue
influence.
(b) The following may not serve as a witness to the signing
of a declaration:
(1) the attending physician or
mental health service provider or a relative of the physician or provider;
(2) an owner, operator, or relative
of an owner or operator of a health care facility in which the principal is a
patient or resident; or
(3) a person related to the
principal by blood, marriage, or adoption.
Sec. 47.30.956.
Operation of declaration.
(a) A declaration becomes operative when it is delivered to
the principal's physician or other mental health treatment provider and remains
valid until revoked or expired. The physician or provider shall act in
accordance with an operative declaration when the principal has been found to
be incapable. The physician or provider shall continue to obtain the
principal's informed consent to all mental health treatment decisions if the
principal is capable of providing informed consent or refusal.
(b) Upon being presented with a declaration, a physician or
other provider shall make the declaration a part of the principal's medical
record. When acting under authority of a declaration, a physician or provider
shall comply with it to the fullest extent possible, consistent with reasonable
medical practice, the availability of treatments requested, and applicable law.
If the physician or other provider is unwilling at any time to comply with the
declaration, the physician or provider may withdraw from providing treatment
consistent with the exercise of independent medical judgment and shall promptly
notify the principal and the attorney-in-fact and document the notification in
the principal's medical record.
Sec. 47.30.958. Powers
of attorney-in-fact.
(a) The attorney-in-fact does not have authority to make
mental health treatment decisions unless the principal is incapable.
(b) The attorney-in-fact is not, as a result of acting in that
capacity, personally liable for the cost of treatment provided to the
principal.
(c) Except to the extent the right is limited by the
declaration or any federal law, an attorney-in-fact has the same right as the
principal to receive information regarding the proposed mental health treatment
and to receive, review, and consent to disclosure of medical records relating
to that treatment. This right of access does not waive any evidentiary
privilege.
(d) In exercising authority under the declaration, the
attorney-in-fact has a duty to act consistently with the desires of the
principal as expressed in the declaration. If the principal's desires are not
expressed in the declaration and not otherwise known by the attorney-in-fact,
the attorney-in-fact has a duty to act in what the attorney-in-fact in good
faith believes to be the best interests of the principal.
(e) An attorney-in-fact is not subject to criminal
prosecution, civil liability, or professional disciplinary action for an action
taken in good faith under a declaration for mental health treatment.
Sec. 47.30.960.
Limitations.
A person may not be required to execute or to refrain from
executing a declaration as a criterion for insurance, as a condition for
receiving mental or physical health services, or as a condition of discharge
from a health care facility.
Sec. 47.30.962.
Actions contrary to declaration.
The physician or provider may subject the principal to
mental health treatment in a manner contrary to the principal's wishes as
expressed in a declaration for mental health treatment only
(1) if the principal is committed to
a treatment facility under this chapter and treatment is authorized in
compliance with AS 47.30.825- 47.30.865; or
(2) in cases of emergency
endangering life or health.
Sec. 47.30.964.
Relation to other statutes.
A declaration does not limit any authority provided in this
chapter either to take a person into custody or to
admit, retain, or treat a person in a health care facility.
Sec. 47.30.966.
Revocation.
A declaration may be revoked in whole or in part at any time
by the principal if the principal is not incapable. A revocation is effective
when a capable principal communicates the revocation to the attending physician
or other provider. The attending physician or other provider shall note the
revocation as part of the principal's medical record.
Sec. 47.30.968.
Limited immunity.
A physician or provider who administers or does not
administer mental health treatment according to and in good faith reliance upon
the validity of a declaration is not subject to criminal prosecution, civil
liability, or professional disciplinary action resulting from a subsequent
finding of a declaration's invalidity.
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