Which was Current Through (denote date of supplement, or latest act number or legislative session covered by latest interim update): 2000 Pocket part update
- When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntarily treatment?
There are three types of voluntary admission: formal, informal and noncontested.
Informal voluntary admission:
R.S. 28:52.1 (A). In the discretion of the director, any mentally ill person or
person suffering from substance abuse desiring admission to a treatment
facility for diagnosis or treatment of a psychiatric disorder or substance
abuse may be admitted upon the patient's request without a formal application.
B. Any patient admitted pursuant to this Section shall have the right to leave
the treatment facility at any time during the normal day-shift hours of
operation, which shall include but not be limited to nine a.m. to five p.m.
Formal voluntary admission:
R.S. 28:52.2 (A). “Any mentally ill person or person suffering from substance
abuse desiring admission to a treatment facility for diagnosis and/or treatment
of a psychiatric disorder or substance abuse and who is deemed suitable for
formal voluntary admission by the admitting physician may be so admitted upon
his written request.
B. A patient admitted under the provisions of this Section shall not be
detained in the treatment facility for longer than seventy-two hours after
making a valid written request for discharge to the director unless an
emergency certificate is executed pursuant to R.S. 28:53, or unless judicial
commitment is instituted pursuant to R.S. 28:54,after making a valid written
request for discharge to the director of the treatment facility.”
Noncontested admission:
R.S. 28:52.3. (A). “A mentally ill person or person suffering from substance
abuse who does not have the capacity to make a knowing and voluntary consent to
a voluntary admission status and who does not object to his admission to a
treatment facility may be admitted to a treatment facility as a noncontested
admission. Such person shall be subject to the same rules and regulations as a
person admitted on a voluntary admission status and his treatment shall be
governed by the provisions of R.S. 28:52H.
- Conditions necessary for emergency treatment.
Emergency treatment can be obtained through a two step emergency certificate, by a peace officer or under protective custody.
By emergency certificate:
R.S. 28:53(B)(1) “Any physician or psychologist may
execute an emergency certificate only after an actual examination of a person
alleged to be mentally ill or suffering from substance abuse who is determined
to be in need of immediate care and treatment in a treatment facility because
the examining physician or psychologist determines the person to be dangerous
to self or others or to be gravely disabled…”
And
R.S. 28:53(G)(1) “Upon admission of any person by emergency certificate to a treatment facility, the director of the treatment facility shall immediately notify the coroner of the parish in which the treatment facility is located…
(2) Within seventy-two hours of admission, the
person shall be independently examined by the coroner or his deputy who
shall execute an emergency certificate, pursuant to Subsection B, which shall
be a necessary precondition to the person's continued confinement.”
R.S. 28:2(10) "Gravely disabled" means the
condition of a person who is unable to provide for his own basic physical
needs, such as essential food, clothing, medical care, and shelter, as a result
of serious mental illness or substance abuse and is unable to survive safely in
freedom or protect himself from serious harm.
R.S. 28:2(3) "Dangerous
to others" means the condition of a person whose behavior or significant
threats support a reasonable expectation that there is a substantial risk that
he will inflict physical harm upon another person in the near future.
(4) "Dangerous to self" means the condition of a person whose
behavior, significant threats or inaction supports a reasonable expectation
that there is a substantial risk that he will inflict physical or severe
emotional harm upon his own person.
By Peace Officer:
R.S. 28:53 (L)(1) “A peace officer or a peace
officer accompanied by an emergency medical service trained technician may take
a person into protective custody and transport him to a treatment facility for
a medical evaluation when, as a result of his personal observation, the peace
officer or emergency medical service technician has reasonable grounds to
believe the person is a proper subject for involuntary admission to a treatment
facility because the person is acting in a manner dangerous to himself or
dangerous to others, is gravely disabled, and is in need of immediate
hospitalization to protect such a person or others from physical harm.”
Protective custody:
R.S. 28:53.2A. “Any parish coroner or judge
of a court of competent jurisdiction may order a person to be taken into
protective custody and transported to a treatment facility or the office of
the coroner for immediate examination when a peace officer or other
credible person executes a statement under private signature specifying that,
to the best of his knowledge and belief, the person is mentally ill … and is in
need of immediate treatment to protect the person or others from physical harm.
Comment: Louisiana has a highly unusual law. No
other state gives a county coroner, who may or may not have any
psychiatric or psychological training, responsibility for evaluating and
recommending civil commitment.
- Is mental illness/disorder defined?
Mentally Ill Person is defined as: “any person with
a psychiatric disorder which has substantial adverse effects on his ability to
function and who requires care and treatment. It does not refer to a person
suffering solely from mental retardation, epilepsy, alcoholism, or drug abuse.”
(R.S. 28:2-14)
- Maximum duration of emergency treatment before a judicial hearing must be held.
Fifteen days. See 28:53(A).
- 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?
The Mental Health Code does not specify whether a
person can avoid a hearing by seeking voluntary treatment, however, it does
provide in R.S. 28:55(J) “No director of a treatment facility shall prohibit
any mentally ill person or person suffering from substance abuse from applying
for conversion of involuntary or emergency admission status to voluntary
admission status. Any patient on an involuntary admission status shall have the
right to apply for a writ of habeas corpus to have his admission status changed
to voluntary status.”
- Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?
Yes. See R.S. 28:52(G) No admission may be deemed voluntary unless the admitting
physician determines that the person to be admitted has the capacity to make a
knowing and voluntary consent to the admission.Knowing and voluntary consent
shall be determined by the ability of the individual to understand:
(1) That the treatment facility to which the patient is requesting admission is
one for mentally ill persons or persons suffering from substance abuse;
(2) That he is making an application for admission, and
(3) The nature of his status and the provisions governing discharge or
conversion to an involuntary status.
One of the elements that is required for a court to
order involuntary commitment is that a patient is unwilling or unable to seek
voluntary treatment. (R.S. 28:54(B)(2)(e)).
- Who may petition for an individual to receive assisted inpatient care?
R.S.28:54(A) “Any person of legal age may file with
the court a petition which asserts his belief that a person is suffering from
mental illness which contributes or causes that person to be a danger to
himself or others or to be gravely disabled…”
- Required elements of a petition.
R.S. 28:54(B) “The petition shall contain the facts
which are the basis of the assertion and provide the respondent with adequate
notice and knowledge relative to the nature of the proceedings.”
- Is there a penalty for filing an unfounded petition?
Not specified in the Mental Health Code.
- 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 Placement Decision:
R.S. 28:55(E)(1) “If the court finds by clear and
convincing evidence that the respondent is dangerous to self or others or is
gravely disabled, as a result of substance abuse or mental illness, it shall
render a judgment for his commitment. After considering all relevant
circumstances, including any preference of the respondent or his family, the
court shall determine whether the respondent should be committed to a treatment
facility which is medically suitable and least restrictive of the respondent's
liberty.”
For Notice to Petitioner:
R.S. 28:54(C). “Upon the filing of the petition, the
court shall assign a time, not later than eighteen calendar days thereafter,
shall assign a place for a hearing upon the petition, and shall cause
reasonable notice thereof to be given to the respondent, respondent's attorney
and the petitioner.”
- Length of initial term of assisted inpatient care.
180 Days. See R.S. 28:56(A) (1).
- Conditions necessary for judicially ordered inpatient care (exact wording of key portions of applicable statute desired).
R.S. 28:55(E)(1) “If the court finds by clear and
convincing evidence that the respondent is dangerous to self or others or is
gravely disabled, as a result of substance abuse or mental illness, it shall
render a judgment for his commitment.”
See definitions for dangerous to self or others and
gravely disabled in answer No. 2.
- Evidentiary standard under which inpatient care criteria are judged (two most common are “beyond a reasonable doubt” and “clear and convincing evidence”).
“Clear and convincing evidence.” See R.S.28:55(E)
(1).
- Is there a least restrictive treatment requirement?
Yes, “after considering all relevant circumstances…
the court shall determine whether the respondent should be committed to a
treatment facility which is medically suitable and least restrictive of the
respondent's liberty.” R.S.28:55(E)(1) See also R.S. 28:2(29)(a)
…"Treatment facility" includes but is not limited to the following,
and shall be selected with consideration of first, medical suitability; second,
least restriction of the person's liberty…”
- Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?
Not specified in the Mental Health Code.
- Are advance directives or durable powers of attorney addressed and, if so, in what way?
Not specified in the Mental Health Code. R.S.
40:1299.58.1 does authorize advance directives, however, the provision but not
address whether advance directives can be used for mental health treatment.
- Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?
No, “a patient confined to a treatment facility by
judicial commitment may receive medication and treatment without his consent,
but no major surgical procedures or electroshock therapy may be performed
without the written authority of a court of competent jurisdiction after a
hearing. With regard to the administration of medication, if the patient
objects to being medicated, prior to making a final decision, the treating
physician shall make a reasonable effort to consult with the primary physician
outside of the facility that has previously treated the patient for his
condition.” (R.S. 28:55(I) (1)).
- Does the treating hospital and/or physician have discretion to release individuals before the end of their assisted inpatient care periods?
Yes, “The director may discharge any patient if in
his opinion discharge is appropriate.” (R.S. 28:56(C)(3)). Additionally, the
director may convert the patient to voluntary status, see R.S. 28:56(C).
- Individual(s) who may decide to initiate new periods of assisted treatment.
All aspects of hearing for extended treatment are
the same as original hearing. See answer No. 7.
- Type of forum that decides on need for extended treatment (normally either judicial or administrative).
Judicial. (R.S.28:56(A) (2) (a)).
- 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.).
Same as original hearing. (R.S. 28:56(A)(2)(a)). See
answer No.10.
- Maximum length of subsequent mandated inpatient care (and of any possible subsequent periods).
R.S. 28:56 (A)(1) “Except as provided in
Subparagraph (b) of this Paragraph, each additional judicial commitment [beyond
the initial commitment] shall expire at the end of one hundred eighty days...
(b) If a person has been judicially committed for four consecutive one hundred
eighty day periods pursuant to the provisions of Subparagraph (a) of this
Paragraph and during this time has not been conditionally discharged, the
period of a subsequent judicial commitment may exceed one hundred eighty days
but shall not exceed one year.”
- 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).
Outpatient Commitment:
The statutory language for outpatient commitment
exists, but is not entirely clear. Upon
a judgment for commitment per R.S. 28:55(E)(1), the judge orders placement in a
“treatment facility” which, as defined, includes outpatient service providers
(i.e. community mental health centers) (R.S. 28:2(29)(a)). In addition, the definition of “treatment”
specifically includes outpatient services (R.S. 28:2(28)).
Conditional Discharge:
R.S. 28:56(G) (1) “A person who is judicially committed may be conditionally discharged
for a period of up to one hundred twenty days by the director or by the court.
The patient may be required to report for outpatient treatment as a condition
of his release. The terms and conditions of the conditional discharge shall be
specifically set forth in writing and signed by the patient. A copy of the
conditional discharge shall be given to the patient and explained to him before
he is discharged.” See also R.S. 28:2(1)
- Maximum duration of alternative(s) to mandated inpatient care.
Outpatient Commitment:
Same as inpatient, 180 Days. See R.S. 28:56(A) (1).
Conditional Discharge:
One hundred twenty days. (R.S. 28:56(G)(1)).
- Procedure necessary to transfer patient from outpatient to inpatient care.
Outpatient Commitment:
The mental health code does not provide for a
mechanism to transfer.
Conditional Discharge:
R.S.28:56(G) (3) “If a patient does not comply with
the terms and conditions of his conditional discharge, he is subject to any of
the procedures for involuntary treatment, including but not limited to the
issuance of an order for custody and the execution of an emergency
certificate.”
- Procedure necessary to institute and maximum duration of subsequent periods of alternative(s) to inpatient assisted treatment.
Outpatient Commitment:
Same as inpatient: R.S. 28:56
(A)(1)”Except as provided in Subparagraph (b) of this Paragraph, each
additional judicial commitment shall expire at the end of one hundred eighty
days.
(b) If a person has been judicially committed for four consecutive one hundred
eighty day periods pursuant to the provisions of Subparagraph (a) of this
Paragraph and during this time has not been conditionally discharged, the
period of a subsequent judicial commitment may exceed one hundred eighty days
but shall not exceed one year.”
Conditional Discharge:
R.S.28:56(G) (4) “An
extension of a conditional discharge may be granted upon application by the
director of the treatment facility to the court and notification to
respondent's counsel of record. The court may grant the extension of the
conditional discharge for a period of up to one hundred twenty days. No further
extension may be made without a contradictory hearing. The burden of proof is
on the director of the treatment facility to show why continued treatment is
necessary.”
- Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.
Not described in the Mental Health Code.
- Other (may include insights into state’s mental health system, judicial interpretation of mental health code, known movements for statutory reform, or general comments).
While Louisiana law allows for assisted outpatient
treatment (AOT), it is rarely used. Perhaps a detailed AOT program like New York’s Kendra’s Law would provide some guidelines and structures needed for its effective use in
Louisiana. The state would also benefit
from an updated standard; one that is not based on dangerousness as is the
current “gravely disabled” criteria. The Treatment Advocacy Center Model Law for Assisted Treatment offers an
example of an improved need for treatment standard, one that if passed in
Louisiana could help many who currently must suffer to the point of
dangerousness before receiving necessary medical intervention.
