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ANALYSIS OF MAINE'S ASSISTED TREATMENT LAWS

STATUTORY COMPILATION USED: Maine Revised Statutes Annotated and Supplements

Which was Current Through: First Special Session of the 118^th Legislature (laws enacted before 1/1/98).

Analysis Completed: 1/99, RME

1. When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntarily treatment?

   34B § 3831. "A hospital for the mentally ill may admit on an informal voluntary basis for care and treatment of a mental illness any person desiring admission or the adult ward of a legally appointed guardian, subject to the following conditions.

   1. Availability of accommodations. Except in cases of medical emergency, voluntary admission is subject to the availability of suitable accommodations.
   2. Standard hospital information. Standard hospital information may be elicited from the person if, after examination, the chief administrative officer of the hospital deems the person suitable for admission, care and treatment.
   3. Persons under 18 years of age. Any person under 18 years of age must have the consent of his parent or guardian.
   4. State mental health institute. Any person under 18 years of age must have the consent of the commissioner for admission to a state mental health institute.
   5. Adults under guardianship. An adult ward may be admitted on an informal voluntary basis only if his legally appointed guardian consents to the admission and the ward makes no objection to the admission."

   Comment: Subsection 5 effectively places an adult ward in the same position as any other adult – the ward must be committed if he/she does not agree to treatment. In this situation, the guardian has no power except to block the ward’s voluntary admission for treatment.

2. Conditions necessary for emergency treatment/observation.
   

For protective custody:

34B § 3862(1). "If a law enforcement officer has reasonable grounds to believe, based upon probable cause, that a person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons, the law enforcement officer…[m]ay take the person into protective custody; and… shall deliver the person immediately for examination as provided in section 3863."[ [see below]

34B § 3862(1)(B). "When, in formulating probable cause, the law enforcement officer relies upon information provided by a 3rd-party informant, the officer shall confirm that the informant has reason to believe, based upon the informant's recent personal observations of or conversations with a person, that the person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons."

For emergency admission:

34B § 3863. "A person may be admitted to a mental hospital on an emergency basis according to the following procedures.

1. Application. Any health officer, law enforcement officer or other person may make a written application to admit a person to a mental hospital, subject to the prohibitions and penalities of section 3805, stating:
   
   1. His belief that the person is mentally ill and, because of his illness, poses a likelihood of serious harm; and
   2. The grounds for this belief.
      
2. Certifying examination. The written application must be accompanied by a dated certificate, signed by a licensed physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or a licensed clinical psychologist, stating…[he or she] has examined the person on the date of the certificate; and…that the person is mentally ill and, because of that illness, poses a likelihood of serious harm."
   
3. Judicial review. The application and accompanying certificate must be reviewed by a Justice of the Superior Court, Judge of the District Court, Judge of Probate or a justice of the peace…"
3. Is mental illness/disorder defined?
   

34B § 3801(5). "‘Mentally ill person’ means a person having a psychiatric or other disease which substantially impairs his mental health, including persons suffering from the effects of the use of drugs, narcotics, hallucinogens or intoxicants, including alcohol, but not including mentally retarded or sociopathic persons."

4. Maximum duration of emergency treatment/observation before a judicial hearing must be held.
   
   While endorsement (signature) is pending on the application and certificate:
   34B § 3863(3)(B). "18 hours."
   
   For judicial hearing:
   34B § 3864(5)(A). "The District Court shall hold a hearing on the application not later than 15 days from the date of the application."
   
5. 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?

   34B § 3832(1). "A patient admitted under section 3831 [informal, voluntary treatment] is free to leave the hospital at any time after admission without undue delay following examination by a licensed physician or a licensed clinical psychologist, except that admission of the person under section 3863 is not precluded, if at any time such an admission is considered necessary in the interest of the person and of the community."

6. Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?
   

None specified.

7. Who may petition for an individual to receive assisted inpatient treatment?
   

For emergency treatment:
34B § 3863(1). "Any health officer, law enforcement officer or other person may make a written application to admit a person to a mental hospital…"

For mandatory inpatient care:
34B § 3863(5)(B). "[T]he chief administrative officer of the hospital…except that if the hospital is a designated nonstate mental health institution and if the patient was admitted under the contract between the hospital and the department for receipt by the hospital of involuntary patients, then the chief administrative officer may seek involuntary commitment only by requesting the commissioner to file an application for the issuance of an order…"

8. Required elements of a petition.
   
   For emergency treatment:
   34B § 3863(1). "[A] written application…stating:
   
   1. His belief that the person is mentally ill and, because of his illness, poses a likelihood of serious harm; and…
   2. The grounds for this belief."

   For mandatory inpatient care:
   34B § 3864(1). "An application to the District Court to admit a person to a mental hospital, filed under section 3863, subsection 5, paragraph B, shall be accompanied by:

1. The emergency application under section 3863, subsection 1;
2. The accompanying certificate of the physician or psychologist under section 3863, subsection 2;
3. The certificate of the physician or psychologist under section 3863, subsection 7 that:
   1. The physician or psychologist has examined the patient; and
   2. It is the opinion of the physician or psychologist that the patient is a mentally ill person and, because of that patient's illness, poses a likelihood of serious harm;
4. A written statement, signed by the chief administrative officer of the hospital, certifying that a copy of the application and the accompanying documents have been given personally to the patient and that the patient and the patient's guardian or next of kin have been notified of the patient's right to retain an attorney or to have an attorney appointed, of the patient's right to select or to have the patient's attorney select an independent examiner and regarding instructions on how to contact the District Court; and
5. A copy of the notice and instructions given to the patient."
9. Is there a penalty for filing an unfounded petition?
   

34B § 3805(3). "[Willfully] causing unwarranted hospitalization or causing a denial of rights is a Class C crime."

10. Participation of other individuals in assisted treatment hearing (i.e. notice, a right to be heard or standing for family members, legal guardians, doctors, etc.).
    

For notice of emergency admission:
34B § 3863(6). "Upon admission of a person under this section, and after consultation with the person, the chief administrative officer of the hospital shall notify, as soon as possible regarding the fact of admission, the person's:

1. Guardian, if known;
2. Spouse;
3. Parent;
4. Adult child; or
5. One of next of kin or a friend, if none of the listed persons exists.

If the chief administrative officer has reason to believe that notice to any individual in paragraphs A to E would pose risk of harm to the person admitted, then notice may not be given to that individual."

For notice of commitment application and hearing:
34B § 3864(3)(A). "Upon receipt by the District Court of the application and accompanying documents specified in subsection 1, the court shall cause written notice of the application and date of hearing:

1. To be mailed within 2 days of filing to the person; and
2. To be mailed to the person's guardian, if known, and to the person's spouse, parent or one of the person's adult children or, if none of these persons exist or if none of those persons can be located, to one of the person's next of kin or a friend, except that if the chief administrative officer has reason to believe that notice to any of these individuals would pose risk of harm to the person who is the subject of the application, notice to that individual may not be given."

For right to be heard and examine witnesses:
34B § 3864(5)(C)(1) "The person, the applicant and all other persons to whom notice is required to be sent shall be afforded an opportunity to appear at the hearing to testify and to present and cross-examine witnesses."

Comment: These provisions essentially grant family members and friends the right to fully participate in the hearing. They have full standing in the hearing, except for the right to appeal. Such a framework is unusual, many states restrict participation by those trying to secure treatment for a suffering individual.

11. Length of initial term of assisted inpatient treatment.

34B § 3864(7). "[T]he court may order commitment to a hospital for a period not to exceed 4 months in the first instance..."

12. Conditions necessary for judicially ordered inpatient treatment (exact wording of key portions of applicable statute desired).
    
    34B § 3864(6)(A)(1). "[T]hat the person is mentally ill and that the person's recent actions and behavior demonstrate that the person's illness poses a likelihood of serious harm…"
    
    34B § 3801(4). "Likelihood of serious harm" means:
    
    1. A substantial risk of physical harm to the person himself as manifested by evidence of recent threats of, or attempts at, suicide or serious bodily harm to himself and, after consideration of less restrictive treatment settings and modalities, a determination that community resources for his care and treatment are unavailable;
    2. A substantial risk of physical harm to other persons as manifested by recent evidence of homicidal or other violent behavior or recent evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them and, after consideration of less restrictive treatment settings and modalities, a determination that community resources for his care and treatment are unavailable; or
    3. A reasonable certainty that severe physical or mental impairment or injury will result to the person alleged to be mentally ill as manifested by recent evidence of his actions or behavior which demonstrate his inability to avoid or protect himself from such impairment or injury, and, after consideration of less restrictive treatment settings and modalities, a determination that suitable community resources for his care are unavailable.

    Comment: This provision is cleverly crafted. "Likelihood of serious harm" sounds like a strict dangerous standard, whereby an individual must be a danger to themselves or others before they can receive assisted treatment. However, "likelihood of serious harm" is defined so as to make this a need for treatment standard. Under the definition in subsection 3801(4)(C), a person can receive assisted treatment where there is a "reasonable certainty that severe physical or mental impairment or injury will result…" This is a good standard because it enables a person to get assisted treatment before they deteriorate to a state of dangerousness.

13. Evidentiary standard under which eligibility for assited treatment is judged (two most common are "beyond a reasonable doubt" and "clear and convincing evidence").
    

34B § 3864(6)(A)(1). "Clear and convincing evidence…"

14. Is there a least restrictive treatment requirement?
    

Yes. Under 34B § 3864(5)(E)(2) the applicant for civil commitment shall prove "That, after full consideration of less restrictive treatment settings and modalities, inpatient hospitalization is the best available means for the treatment of the person. Under 34B § 3864(6)(A)(2) the judge must determine that "inpatient hospitalization is the best available means for treatment of the patient…" Additionally, 34B § 3801(4)(a), (b), and (c) all require "consideration of less restrictive treatment settings…" for judicially ordered inpatient care.

15. Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?
    

Not specified.

16. Are advance directives or durable powers of attorney addressed and, if so, in what way?
    

Durable powers of attorney are not addressed in the mental health code. 34B § 1101, "Medical Treatment of Psychiatric Disorders", outlines the procedures for advance directives. The statute allows a person to make advance instructions regarding psychiatric treatment. The section also provides a declaration sample form.

17. Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?
    

The statute does not specify a separate proceeding for involuntary medication.

18. Does the treating hospital and/or physician have discretion to release individuals before the end of their assisted inpatient care periods?
    

34B § 3871(2). "The chief administrative officer of a hospital shall discharge, or cause to be discharged, any patient when…Conditions justifying hospitalization no longer obtain…"

34B § 3871(3). "The chief administrative officer of a hospital may discharge, or cause to be discharged, any patient even though the patient is mentally ill and appropriately hospitalized in the hospital, if:

1. The patient and either the guardian, spouse or adult next of kin of the patient request that patient's discharge; and
2. In the opinion of the chief administrative officer of the hospital, the patient does not pose a likelihood of serious harm due to that patient's mental illness."

Comment: It is interesting that in order to be released under 34B § 3871(3), the patient and a guardian/adult relative must request his/her discharge. This provision seems to require a second opinion by an adult with an interest in the patient before allowing an early release. Hopefully this interested adult would also be available to assist or support the patient, if needed, with life after hospitalization.

19. Individual(s) who may decide to initiate new periods of assisted treatment.
    

34B § 3864(8). "If the chief administrative officer of the hospital to which a person has been committed involuntarily by the District Court recommends that continued involuntary hospitalization is necessary for that person, the chief administrative officer shall notify the commissioner. The commissioner may then, not later than 30 days prior to the expiration of a period of commitment ordered by the court, make application in accordance with this section to the District Court that has territorial jurisdiction over the hospital designated for treatment in the application by the commissioner for a hearing to be held under this section."

20. Type of forum that decides on need for extended assisted treatment (normally either judicial or administrative).
    

34B § 3864(8). "[T]he District Court.."

21. 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 initial commitment proceeding. See response 10.

22. Maximum length of subsequent assisted inpatient treatment (and of any possible subsequent periods).
    

34B § 3864(7). "[T]he court may order commitment to a hospital for a period not to exceed 4 months in the first instance and not to exceed one year after the first and all subsequent hearings."

23. Alternative(s) to assisted inpatient treatment (i.e. conditional release, trial release, assisted outpatient treatment, etc.) and conditions necessary for a court to order placement in alternative(s) (if more than one form, specify for each).
    

Release to convalescent status:
34B § 3870(1). "The chief administrative officer of a state mental health institute may release an improved patient on convalescent status when the chief administrative officer believes that the release is in the best interest of the patient and that the patient does not pose a likelihood of serious harm. The chief administrative officer of a nonstate mental health institute may release an improved patient on convalescent status when the chief administrative officer believes that the release is in the best interest of the patient, the patient does not pose a likelihood of serious harm and, when releasing an involuntarily committed patient, the chief administrative officer has obtained the approval of the commissioner after submitting a plan for continued responsibility."

Comment: Maine’s convalescent status provision gives authority to the chief administrative officer to conditionally release a patient, however, it requires a judicial order to rehospitalize the patient.

24. Maximum duration of alternative(s) to assisted inpatient treatment.
    

The law is unclear whether the duration of convalescent status is limited to the time period specified for inpatient commitment.

25. Procedure necessary to transfer patient from outpatient to inpatient care.
    

34B § 3870(4). "Rehospitalization of patients under this section [convalescent status] is governed as follows.

1. If, prior to discharge, there is reason to believe that it is in the best interest of an involuntarily committed patient on convalescent status to be rehospitalized, or if an involuntary committed patient on convalescent status poses a likelihood of serious harm the commissioner or the chief administrative officer of the hospital, with the approval of the commissioner, may issue an order for the immediate rehospitalization of the patient…
   
3. If the order is not voluntarily complied with, an involuntarily committed patient on convalescent leave may be returned to the hospital if the following conditions are met:

   (1) An order is issued pursuant to paragraph A;

(2) The order is brought before a District Court Judge or justice of the peace; and

(3) Based upon clear evidence that return to the hospital is in the patient's best interest or that the patient poses a likelihood of serious harm, the District Court Judge or justice of the peace approves return to the hospital.

After approval by the District Court Judge or justice of the peace, a law enforcement officer may take the patient into custody and arrange for transportation of the patient in accordance with the provisions of section 3863, subsection 4.

This paragraph does not preclude the use of protective custody by law enforcement officers pursuant to section 3862."

Comment: The standard for rehospitalization is broader than the standard for initial involuntary commitment. A judge can order rehospitalization under the catch all "in the patient’s best interest" as well as the standard "likelihood of serious harm."

26. Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.

    The only guardianship procedures listed in the mental health law are contained in the advance directives section.

    34B § 11001(16). "Petition for guardianship. A person may petition the court for appointment of a guardian for a declarant if that person has good reason to believe that the provision of medical treatment in a particular case:

    1. Is contrary to the most recent expressed wishes of a declarant who was in remission and was competent at the time of expressing the wishes;
    2. Is being proposed pursuant to a declaration that has been falsified, forged or coerced; or
    3. Is being considered without the benefit of a revocation that has been unlawfully concealed, destroyed, altered or cancelled."
27. Other (may include insights into state’s mental health system, judicial interpretation of mental health code, or known movements for statutory reform).
    

Maine’s mental health law contains some progressive treatment-promoting provisions. In particular, the law provides a cleverly-crafted commitment standard. Under the definition in subsection 3801(4)(C), a person can receive assisted treatment where there is a "reasonable certainty that severe physical or mental impairment or injury will result…" This is a good standard because it enables a person to get treatment before they deteriorate to a state of dangerousness.

Additionally, the Maine law encourages family and friends (those trying to secure treatment for an ill person) to participate in the commitment hearing. Sections 3863(6), 3864(3)(A), and 3864(5)(C)(1) allows such individuals to receive notice, testify, present witnesses, and to cross-examine witnesses. Participation by family and friends (when available) is important because these individuals are often the most familiar with the ill person and his/her illness.

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