- When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntarily treatment?
Any individual who is mentally ill or
has symptoms of mental illness may be admitted to a psychiatric center and must
arrange payment for his or her care, maintenance and support while at the
center. Detailed procedure for
voluntary admission may be in the DMH regulations.
§ 5123(a). “The
Superintendent of the Delaware Psychiatric Center may admit for observation,
diagnosis, care and treatment any individual who is mentally ill or has
symptoms of mental illness and who applies therefor, subject to the payment of
charges for care, maintenance and support as provided in § 5127 of this title. (b) If the applicant is under the care and treatment of a
medical doctor licensed to practice medicine or surgery in this State, the
application shall be accompanied by a letter from the doctor recommending
voluntary hospitalization and setting forth a description of the behavior and
symptoms of the patient which led the doctor to the doctor's decision to
recommend voluntary hospitalization. If the applicant is not under the care and
treatment of such a medical doctor, the applicant shall not be admitted unless
the Superintendent first determines that the applicant has sufficient insight
and capacity to make responsible application for voluntary hospitalization.”
§ 5121. “The
Department may establish, under the direction and supervision of the Delaware
Psychiatric Center, a voluntary admission procedure for the observation, study,
psychiatric diagnosis and treatment of persons suffering from mental and
nervous diseases.”
- Conditions necessary for emergency treatment.
For emergency treatment of the “dangerous mentally ill”:
Once any person has alleged through a signed complaint
that someone is mentally ill, any peace officer may take that allegedly
mentally ill person to a licensed medical doctor. If the doctor believes that the person is a “dangerous mentally
ill person,” the doctor will then certify this in writing and the allegedly ill
person will be transported to a mental health facility.
§ 5122(b). “Upon the signed
complaint of any person stating the person has knowledge that a designated
person appears to be so mentally ill as to be likely to cause injury to oneself
or others and to require immediate care, treatment or restraint, setting
forth a description of the behavior and symptoms which led the person to the
person's conclusion, such alleged mentally ill person shall be promptly taken
into custody by any peace officer of the State to whom the complaint is
delivered without the necessity of a warrant. (c) Such alleged mentally ill
person shall be taken by the peace officer, with all reasonable promptness, to
a medical doctor licensed to practice medicine or surgery in the State for
examination…If it reasonably appears to the doctor that the alleged mentally
ill person is a dangerous mentally ill person, the said doctor shall so
certify in writing and the alleged mentally ill person shall be transported by
the peace officer or, in the sole discretion of the examining physician, by
designated transport personnel to the Delaware Psychiatric Center or other
hospital as defined in § 5101(4)
of this title with all reasonable promptness and delivered to the officials of
the said hospital, together with the complaint and the certificate of the
examining doctor.”
For provisional hospitalization [up to 10 days] by psychiatrist’s certificate:
§ 5003.“No person shall be
involuntarily admitted to the hospital as a patient except pursuant to the
written certification of a psychiatrist that based upon the psychiatrist's
examination of such person, such person suffers from a disease or condition
which requires the person to be observed and treated at a mental hospital for
the person's own welfare and which either renders such person unable to make
responsible decisions with respect to the person's hospitalization, or poses a
present threat, based upon manifest indications, that such person is likely to
commit or suffer serious harm to that person's own self or others or to
property, if not given immediate hospital care and treatment.”
- Is mental illness/disorder defined?
§ 5001(1). “’Mentally ill
person’ means a person suffering from a mental disease or condition which
requires such person to be observed and treated at a mental hospital for the
person's own welfare and which both (i) renders such person unable to make
responsible decisions with respect to the person's hospitalization, and (ii)
poses a real and present threat, based upon manifest indications, that such
person is likely to commit or suffer serious harm to that person's own self or
others or to property if not given immediate hospital care and treatment.”
§ 5122(a)(1). “Dangerous
mentally ill person means a person so mentally ill as to be likely to cause
injury to oneself or others and to require immediate care, treatment or
restraint.”
- Maximum duration of emergency treatment before a judicial
hearing must be held.
For emergency treatment:
§ 5122(d). “24 hours"
For provisional hospitalization:
10 days." Under § 5007(a) the
hospital shall file a complaint within two working days from the date of
provisional admission. And then under §
5008(1) a probable cause hearing must be held within eight working days
from the filing of the complaint.
- Can a potential committee avoid a hearing determination by
opting to voluntarily undergo treatment and, if so, what is the minimum time he
or she must then spend in treatment?
Yes. 5011(b). “If prior to any hearing the court
determines that the involuntary patient has knowingly and voluntarily applied for, and has been accepted for hospitalization pursuant to § 5123 [voluntary hospitalization procedures] of this title, the action shall be dismissed, and § 5123 shall govern.”
There is no minimum time that the
patient must spend in treatment after opting for voluntary treatment, except
for the 1-5 day waiting period required for discharge.
- Are there any requirements that a potential committee be
capable of deciding to voluntarily undergo treatment?
Yes, if § 5123(b). “…the applicant
is not under the care and treatment of such a medical doctor, the applicant shall
not be admitted unless the Superintendent first determines that the applicant
has sufficient insight and capacity to make responsible application for
voluntary hospitalization.”
§ 5011(a). “An involuntary
patient may waive any of the rights provided by this chapter if (i) the court
determines that such waiver is voluntary and with the involuntary patient's
knowing and intelligent consent, or if (ii) where the involuntary patient is
incapable of knowingly and intelligently consenting, the court, upon application
by counsel and after appropriate inquiry and finding of facts, approves such
waiver for good cause shown.”
- Who may petition for an individual to receive assisted
inpatient care?
For emergency treatment:
§ 5122(b). “Upon the signed
complaint of any person stating the person has knowledge that a
designated person appears to be so mentally ill as to be likely to cause injury
to oneself or others…”
For provisional hospitalization:
§ 5003.A psychiatrist by
certification.
For continued treatment:
§ 5007. The hospital acting
as petitioner.
- Required elements of a petition.
For emergency treatment:
§ 5122(b). “Upon the signed
complaint of any person stating the person has knowledge that a designated
person appears to be so mentally ill as to be likely to cause injury to oneself
or others and to require immediate care, treatment or restraint, setting forth
a description of the behavior and symptoms which led the person to the person's
conclusion, such alleged mentally ill person shall be promptly taken into
custody by any peace officer of the State to whom the complaint is delivered
without the necessity of a warrant. The complaint shall also set forth the
address of the signer, the signer's relationship or other connection to the
alleged mentally ill person and, if known, the name of the spouse or nearest
known relative.”
For provisional hospitalization:
§ 5003. “The certificate
shall state with particularity the behavior and symptoms upon which the
psychiatrist's opinion is based, shall include (where available) the name and
address of the spouse or other nearest relative or person of close relationship
to the alleged mentally ill person, and shall state that such person is not
willing to accept hospital care and treatment on a voluntary basis or that the
person is incapable of voluntarily consenting to such care and treatment.”
For continued treatment:
§ 5007(a). “Forthwith, but
not more than 2 working days from the date of provisional admission, the
hospital shall file a verified complaint in the Superior Court or in the Family
Court if the involuntary patient would otherwise be amenable to Family Court
jurisdiction under other provisions of law. The complaint shall aver that the
hospital, as petitioner, reasonably and in good faith believes that the
involuntary patient (who shall be named as respondent) is a mentally ill person
who should be continued as a patient at the hospital pursuant to this chapter
until the patient is determined no longer to be a mentally ill person. The
complaint shall also aver that the involuntary patient has been advised of the
patient's rights under this chapter.”
- Is there a penalty for filing an unfounded petition?
Yes. § 5133(a). “Any person who willfully causes, or conspires with or assists another to
cause (1) the unwarranted hospitalization of any individual in the Delaware
Psychiatric Center under this chapter, or (2) the denial to any individual of
any of the rights accorded to said individual under this chapter shall be
punished by a fine not exceeding $500 or imprisonment not exceeding 1 year, or
both.”
- Participation of other individuals in commitment hearing (i.e.
notice, a right to be heard or standing for family members, legal guardians,
doctors, etc.).
For notice of probable cause hearing: §5008(2) “Direct that
notice of the probable cause hearing and copies of the pleadings be supplied to
the involuntary patient, the patient’s counsel and to the involuntary patient’s
spouse, nearest relative or person of close relationship to the patient as in
the court’s opinion would best represent the involuntary patient’s
interest.” Also, § 5122(d). “If it appears
that the nearest known relative has not received prior notice of the
proceedings, the Superintendent shall, if reasonably possible, promptly give
such notice.”
- Length of initial term of assisted inpatient care.
§ 5010(2). Three months.
- Conditions necessary for judicially ordered inpatient care
(exact wording of key portions of applicable statute desired).
§ 5010(2). “[T]he
involuntary patient is a mentally ill person…”
For definition of “mentally ill person” see Answer
No. 3.
- Evidentiary standard under which inpatient care criteria are
judged (two most common are “beyond a reasonable doubt” and “clear and
convincing evidence”).
§ 5010(2). “clear and
convincing evidence”
- Is there a least restrictive treatment requirement?
Yes, the court is required to
consider the least restraining alternative.
§ 5010(2). “In determining
the disposition of the involuntary patient the court shall consider all
available alternatives, including inpatient confinement at the hospital, and
shall order such disposition as imposes the least restraint upon the
involuntary patient's liberty and dignity consistent both with affording mental
health treatment and care with protecting the safety of the involuntary patient
and the public.”
See also § 5161(b)(1). “The care and treatment shall be provided in a
setting and under conditions that restrict the patient’s personal liberty only
to the extent required by the patient’s treatment needs…”
- Is there a confidentiality exception for family members of
committees and/or individuals undergoing emergency evaluations?
Not for records, however, § 5122(c), “The written complaint shall
be delivered to the doctor who shall, if reasonably possible, give telephonic
notice of the examination to the nearest relative as shown on the complaint,
unless such person has signed the complaint.”
- Are advance directives or durable powers of attorney addressed
and, if so, in what way?
Yes. 16 Del. C. § 2503 allows an individual to
make advance medical care instructions and/or execute a power of attorney for any
health care decisions. The form to create an advance directive can be found at
section 16 § 2505 of the Delaware Code.
Any competent adult may execute a power of
attorney for health care, which authorizes a designated agent to make health
care decisions only so long as the principal lacks the capacity to do so. §2503. The power of attorney may be revoked
at any time by a mentally competent principal. §2504.
- Is there a separate proceeding necessary to abrogate a
committee’s right to refuse treatment?
No. § 5161(5). “Absent a patient's
informed, voluntary, written consent to a mode or course of treatment, each
patient shall have the right not to receive the mode or course of treatment
established pursuant to a treatment plan, except as follows: a. During an
emergency situation, if such treatment is pursuant to and documented
contemporaneously by the written order of a physician; or b. As authorized
under applicable law or court order in the case of a person involuntarily
committed to the facility…”
- Does the treating hospital and/or physician have discretion to
release individuals before the end of their assisted inpatient care
periods?
Yes.
Pre-commitment:
§ 5009. “Notwithstanding the pendency of the
action or any order previously entered by the court, if at any time after the
complaint is filed the hospital determines that the involuntary patient is no
longer a mentally ill person, the hospital shall so certify in writing and
discharge the patient forthwith, and shall immediately advise the court of its
determination and the discharge, and the court shall thereupon dismiss the
action.”
Post-commitment:
§ 5131(a). “…whenever the
Superintendent determines that any patient is not a mentally ill person, as
that term is defined in § 5001 of this title, or whenever the Superintendent determines that otherwise, the
care, treatment and supervision of the Psychiatric Center are no longer
necessary, the patient shall be discharged. The certificate of discharge shall
state the basis for the discharge.”
- Individual(s) who may decide to initiate new periods of
assisted treatment.
The hospital.
§ 5012(a). “If by the
expiration of 3 months the involuntary patient has not been discharged by the
hospital, and if in the opinion of the hospital the involuntary patient is
still a mentally ill person, the hospital shall so notify the court…”
- Type of forum that decides on need for extended treatment
(normally either judicial or administrative).
§5012(a), (b) Judicial.
- Participation of other individuals in the extension hearing
(i.e. notice, a right to be heard and/or right to counsel for family members,
legal guardians, doctors, etc.).
Not specified.
- Maximum length of subsequent mandated inpatient care (and of
any possible subsequent periods).
§ 5012(b). A hearing is
required every six months to extend treatment.
- Alternatives(s) to assisted inpatient treatment (i.e.
conditional release, outpatient commitment, etc.) and conditions necessary for
a court to order placement in alternative(s) (if more than one form, specify
for each).
For outpatient commitment:
§ 5010(2) “In determining the disposition of the involuntary
patient the court shall consider all available alternatives…and shall order
such disposition as imposes the least restraint…” This least restrictive placement could include outpatient
commitment. Provisions are the same as
for inpatient commitment.
For convalescent status:
§ 5131(c). “Release on
convalescent status shall include provisions for continuing responsibility to
and by the Psychiatric Center, including a plan of treatment on an outpatient
or nonhospital patient basis.”
- Maximum duration of alternative(s) to mandated inpatient care.
Not specified.
- Procedure necessary to transfer patient from outpatient to
inpatient care.
Not specified.
- Procedure necessary to institute and maximum duration of
subsequent periods of alternative(s) to inpatient assisted treatment.
For outpatient commitment:
§5007, §5012. Procedure is
the same as for inpatient. Review is
required every six months.
For convalescent status:
§ 5131(d) Prior to the end
of a year on convalescent status, and not less frequently than annually
thereafter, the Superintendent shall examine the facts relating to the condition
of the patient on convalescent status and whenever the Superintendent
determines that the patient is not a mentally ill person, as that term is
defined in § 5001 of this title, or whenever the Superintendent determines that
otherwise, the care, treatment and supervision of the Psychiatric Center are no
longer necessary, the patient shall be discharged. The certificate of discharge
shall state the basis for the discharge.
- Describe any procedures for conservatorship, guardianship,
etc., which are applicable to the mentally ill.
12 Del. C. § 3901 describes the procedure for appointment of a
guardian. Upon the filing of a
petition, the court orders a time and place for a hearing and must provide
reasonable notice to the allegedly mentally disabled person. The court may appoint an interim guardian
for up to thirty days if it finds that the person is in danger of incurring
imminent serious physical harm. If, at
the hearing, the court determines that the person is disabled within the
statutory meaning, it takes control over the disabled person’s affairs and may
appoint a guardian.
12 Del. C. § 3901(a). “Disabled
person” means any person who:…(2) By reason of mental or physical incapacity is
unable properly to manage or care for their own person or property…and in
consequence thereof…is in danger of substantially endangering person’s own
health , or of becoming subject to abuse by other persons…”
Del. Ch. Ct. R. 175 sets out the
requirements of a petition for the appointment of a guardian.
- Other (may include insights into state’s mental health system,
judicial interpretation of mental health code, known movements for statutory
reform, or general comments).
Delaware House Bill 520 was
introduced but did not pass in the 2000 legislative session. The bill would have expanded the current
dangerousness standard and incorporated a need-for-treatment standard. Such a reform would greatly improve the
Delaware treatment laws.
