When not the subject of a pending commitment action, what are
the prerequisites for an individual to receive voluntarily treatment?
§ 53-21-111 (1)
"An application for admission to a mental health facility must be in writing on a
form prescribed by the facility and approved by the department…(2) Any applicant who
wishes to voluntarily apply for admission to the state hospital shall first obtain
certification from a professional person that the applicant is suffering from a mental
disorder. (3) An application for voluntary admission must give the facility the right to
detain the applicant for no more than 5 days, excluding weekends and holidays, past the
applicant's written request for release."
Conditions necessary for emergency treatment/observation.
§ 53-21-129 (1)
"When an emergency situation exists, a peace officer may take any person who appears
to have a mental disorder and to present an imminent danger of death or bodily harm to the
person or to others into custody only for sufficient time to contact a professional person
for emergency evaluation. If possible, a professional person should be called prior to
taking the person into custody.
(2) If the professional person agrees that the person detained is a
danger to the person or to others because of a mental disorder and that an emergency
situation exists, then the person may be detained and treated until the next regular
business day. At that time, the professional person shall release the detained person or
file findings with the county attorney who, if the county attorney determines probable
cause to exist, shall file the petition [for mandatory treatment (See reponses
8-14)].…"
Is mental illness/disorder defined?
§ 53-21-102 (7)
"Mental disorder" means any organic, mental, or emotional impairment that has
substantial adverse effects on an individual's cognitive or volitional functions. The term
does not include:
(a) addiction to drugs or alcohol;
(b) drug or alcohol intoxication;
(c) mental retardation; or
(d) epilepsy.
Maximum duration of emergency treatment/observation before a
judicial hearing must be held.
For emergency treatment,
with no petition for assisted treatment: § 53-21-129 (2) "[T]he
person may be detained and treated until the next regular business day."
For emergency treatment, when a petition for assisted treatment is
filed: § 53-21-122 (1) "The petition must be filed with the clerk
of court who shall immediately notify the judge. (2) If a judge is available, the judge
shall consider the petition, and if...the judge finds probable cause…set a date and
time for the hearing on the petition that may not be on the same day as the initial
appearance and that may not exceed 5 days, including weekends and holidays, unless the
fifth day falls upon a weekend or holiday and unless additional time is requested on
behalf of the respondent."
For pretrial detention: § 53-21-120 (2)
"Whenever possible, a person detained pursuant to this part [pretrial detention] must
be detained in a mental health facility and in the county of residence. If the person
detained demands a jury trial and trial cannot be held within 7 days, the individual may
be sent to the state hospital until time of trial if arrangements can be made to return
him to trial. The trial must be held within 30 days."
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?
§ 53-21-111 (1)
"Nothing in this part may be construed to limit the right of any person to make
voluntary application for admission at any time to any mental health facility or
professional person… (2) Any applicant who wishes to voluntarily apply for admission
to the state hospital shall first obtain certification from a professional person that the
applicant is suffering from a mental disorder…(3) An application for voluntary
admission must give the facility the right to detain the applicant for no more than 5
days, excluding weekends and holidays, past the applicant's written request for
release."
Are there any requirements that a potential committee be
capable of deciding to voluntarily undergo treatment?
Not specified.
Who may petition for an individual to receive assisted
inpatient treatment?
§ 53-21-121 (1) "The
county attorney, upon the written request of any person having direct knowledge of the
facts, may file a petition with the court alleging that there is a person within the
county who is suffering from a mental disorder and who requires commitment pursuant to
this chapter."
Required elements of a petition.
§ 53-21-121 (2)
"The petition must contain:
(a) the name and address of the person requesting the petition and
(b) the person's interest in the case…
(c) the purported facts supporting the allegation of mental
disorder, a statement of the disposition sought pursuant to 53-21-127(2), and the need for
commitment…
(d) the name and address of every person known or believed to be
legally responsible for the care, support, and maintenance of the respondent for whom
evaluation is sought;
(e) the name and address of the respondent's next of kin to the
extent known to the county attorney and the person requesting the petition;
(f) the name and address of any person whom the county attorney
believes might be willing and able to be appointed as friend of respondent…"
§ 53-21-122 (2) "If a judge is available, the
judge shall consider the petition, and if the judge finds no probable cause, it must be
dismissed. If the judge finds probable cause…"
§ 53-21-122 (3) "If a judge is not available
in the county, the clerk shall notify a resident judge by telephone and shall read the
petition to the judge. If the judge finds no probable cause, the petition must be
dismissed. If the judge finds probable cause…"
Is there a penalty for filing an unfounded petition?
Not specified.
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.).
§ 53-21-121 (3)
"Notice of the petition and the order setting the date and time of the hearing and
the names of the respondent's counsel, professional person, and friend of respondent must
be hand-delivered or mailed to the person or persons legally responsible for care,
support, and maintenance of the respondent, the next of kin identified in the petition,
and any other person identified by the county attorney as a possible friend of respondent
other than the one named as the friend of respondent."
§ 53-21-122 (2) "The judge shall appoint a
professional person and a friend of respondent…"
§ 53-21-102 (6) "Friend of respondent"
means any person willing and able to assist a person suffering from a mental disorder and
requiring commitment or person alleged to be suffering from a mental disorder and
requiring commitment in dealing with legal proceedings, including consultation with legal
counsel and others. The friend of respondent may be the next of kin, the person's
conservator or legal guardian, if any, representatives of a charitable or religious
organization, or any other person appointed by the court to perform the functions of a
friend of respondent set out in this part. Only one person may at any one time be the
friend of respondent within the meaning of this part. In appointing a friend of
respondent, the court shall consider the preference of the respondent. The court may at
any time, for good cause, change its designation of the friend of respondent."
Length of initial term of assisted inpatient treatment.
§ 53-21-127
(2)(a)(I) 3 months
Conditions necessary for judicially ordered inpatient
treatment (exact wording of key portions of applicable statute desired).
The Montana law provides
the respondent with a court hearing or, under § 53-21-125, a respondent may elect to have
a jury trial on the petition for commitment.
For court hearing: § 53-21-126 (1) "If the
court determines that the respondent is suffering from a mental disorder, the court shall
then determine whether the respondent requires commitment. In determining whether the
respondent requires commitment, the court shall consider the following:
(a) whether the respondent, because of a mental disorder, is
substantially unable to provide for the respondent's own basic needs of food, clothing,
shelter, health, or safety;
(b) whether the respondent has recently, because of a mental
disorder and through an act or an omission, caused self-injury or injury to others;
(c) whether, because of a mental disorder, there is an imminent
threat of Injury [sic] to the respondent or to others because of the respondent's acts or
omissions; and
(d) whether the respondent's mental disorder, as
demonstrated by the respondent's recent acts or omissions, will, if untreated, predictably
result in deterioration of the respondent's mental condition to the point at which the
respondent will become a danger to self or to others or will be unable to provide for the
respondent's own basic needs of food, clothing, shelter, health, or safety. Predictability
may be established by the respondent's relevant medical history."
§ 53-21-127(2)(d) "[I]f the
court relies solely upon the criterion provided in 53-21-126(1)(d), the court may require
commitment only to a community facility and may not require commitment at the state
hospital."
Comment: § 53-21-126(1)(d) allows commitment for predictable
"deterioration." This is a good example of a "need for treatment"
standard, one that allows for assisted treatment before the onset of dangerousness. Note
that a person committed on the basis of this criterion may be committed to a community
facility, and not a state hospital, under § 53-21-127(2)(d).
For jury trial: § 53-21-126(3) "However, if
the issues are tried by a jury, at least two-thirds of the jurors shall concur on a
finding that the respondent is suffering from a mental disorder and requires
commitment."
Evidentiary standard under which eligibility for assisted
treatment is judged (two most common are "beyond a reasonable doubt" and
"clear and convincing evidence").
§ 53-21-126(2)
"The standard of proof in a hearing held pursuant to this section is proof beyond a
reasonable doubt with respect to any physical facts or evidence and clear and convincing
evidence as to all other matters. However, the respondent's mental disorder must be proved
to a reasonable medical certainty. Imminent threat of self-inflicted injury or injury to
others must be proved by overt acts or omissions, sufficiently recent in time as to be
material and relevant as to the respondent's present condition."
Is there a least restrictive treatment requirement?
§ 53-21-127(2)(c)
"In determining which of the alternatives…to order, the court shall choose the
least restrictive alternatives necessary to protect the respondent and the public and to
permit effective treatment."
Is there a confidentiality exception for family members of
committees and/or individuals undergoing emergency evaluations?
There is no exception in the
mental health law, however, § 53-21-166(2) allows court appointed
guardians or conservators to designate persons to whom records may be disclosed.
Are advance directives or durable powers of attorney
addressed and, if so, in what way?
Not specified in the mental
health law.
Is there a separate proceeding necessary to abrogate a
committee’s right to refuse treatment?
§ 53-21-127(2)(c)
"The court may authorize the chief medical officer of a facility or a physician
designated by the court to administer appropriate medication involuntarily if the court
finds that involuntary medication is necessary to protect the respondent or the public or
to facilitate effective treatment. Medication may not be involuntarily administered to a
patient unless the chief medical officer of the facility or a physician designated by the
court approves it prior to the beginning of the involuntary administration and unless, if
possible, a medication review committee reviews it prior to the beginning of the
involuntary administration or, if prior review is not possible, within 5 working days
after the beginning of the involuntary administration. The medication review committee
must include at least one person who is not an employee of the facility or program. The
patient and the patient's attorney or advocate, if the patient has one, must receive
adequate written notice of the date, time, and place of the review and must be allowed to
appear and give testimony and evidence. The involuntary administration of medication must
be again reviewed by the committee 14 days and 90 days after the beginning of the
involuntary administration if medication is still being involuntarily administered."
Comment: The judge in a Montana civil commitment proceeding
issues a combined order for placement and medication. This combined procedure allows for
more efficient and timely treatment, as is does not require separate hearings for the two
determinations.
Does the treating hospital and/or physician have discretion
to release individuals before the end of their mandatory inpatient care periods?
§ 53-21-181(1)
"At any time within the 3-month period provided for in 53-21-127(2), the patient may
be discharged on the written order of the professional person in charge of him."
Individual(s) who may decide to initiate new periods of
assisted treatment.
§ 53-21-128(1)(a)
"Not less than 2 calendar weeks prior to the end of the 3-month period of commitment
provided for in 53-21-127(2), the professional person in charge of the patient at the
place of commitment may petition the district court in the county where the patient is
committed for extension of the commitment period unless otherwise ordered by the original
committing court."
Type of forum that decides on need for extended assisted
treatment (normally either judicial or administrative).
§ 53-21-128(1)(c)
"Procedure on the petition for extension when a [judicial] hearing has been requested
must be the same in all respects as the procedure on the petition for the original 3-month
commitment except the patient is not entitled to trial by jury."
§ 53-21-128(1)(b) "If a hearing is not
requested, the court shall enter an order of commitment for a period not to exceed 6
months."
Comment: Montana’s extended treatment provisions are
unique. Unlike most states, the extension on commitment is automatic unless the patient
requests a hearing.
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.).
§ 53-21-128(1)(b)
"Upon the filing of the petition, the court shall give written notice of the filing
of the petition to the patient, the patient's next of kin, if reasonably available, the
friend of respondent appointed by the court, and the patient's counsel. If any person
notified requests a hearing prior to the termination of the previous commitment authority,
the court shall immediately set a time and place for a hearing on a date not more than 10
days from the receipt of the request and notify the same people, including the
professional person in charge of the patient."
Maximum length of subsequent assisted inpatient treatment
(and of any possible subsequent periods).
For original extension:
§ 53-21-128(1)(d) "If the court finds that the patient continues to suffer
from a mental disorder and to require commitment, the court shall order commitment,
custody in relatives, outpatient therapy, or other order as set forth in 53-21-127(2).
However, an order may not affect the patient's custody for more than 6 months."
For additional extensions: § 53-21-128(2)
"Further extensions may be obtained under the same procedure described in subsection
(1); however, the patient's custody may not be affected for more than 1 year…"
Alternative(s) to 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).
§ 53-21-127 (2)(a)
"If it is determined that the respondent is suffering from a mental disorder and
requires commitment within the meaning of this part, the court shall hold a posttrial
disposition hearing…At the conclusion of the disposition hearing, the court
shall…
(i) commit the respondent to the state hospital for a period of not
more than 3 months;
(ii) commit the respondent to a community facility, program, or
course of treatment…
(iii) order the respondent to be placed in the care and custody of a
relative or guardian or some other appropriate place other than an institution;
(iv) order outpatient therapy; or
(v) make some other appropriate order for treatment."
For conditional release: § 53-21-183 (1)
"When, in the opinion of the professional person in charge of a mental health
facility providing involuntary treatment, the committed person can be appropriately served
by outpatient care prior to the expiration of the period of commitment, then outpatient
care may be required as a condition for early release…
Maximum duration of alternative(s) to assisted inpatient
treatment.
For alternatives to
assisted inpatient care, including conditional release: § 53-21-127 (2)(b) "A
treatment ordered pursuant to this subsection [posttrial disposition for initial
commitment hearing] may not affect the respondent's custody or course of treatment for a
period of more than 3 months."
For subsequent extensions for alternatives to inpatient care, except
for conditional release, see response 22.
For extensions for conditional release: § 53-21-198.
"Extension of conditions of release… (1) Conditions of release may be extended
by the district court beyond the expiration date of the order committing the patient under
53-21-127 or 53-21-128, but in no case for longer than 2 years beyond that
date…"
Procedure necessary to transfer patient from outpatient to
inpatient care.
§ 53-21-195 (1)
"A proceeding for the rehospitalization of a patient conditionally released from an
inpatient mental health facility pursuant to 53-21-182 or 53-21-183 is commenced by the
filing of a written petition in any district court by the county attorney, the
professional person in charge of the patient's case, or the patient's next of kin."
§ 53-21-197 (1) "The court may order that the
patient's conditional release status be revoked and that the patient be returned to the
mental health facility from which the patient was conditionally released or be sent to
another appropriate inpatient mental health facility if, after a hearing, the court finds
by clear and convincing evidence that:
(a) the conditionally released patient has been determined by the
district court to be suffering from a mental disorder and requiring commitment and is
presently under a valid order of commitment pursuant to 53-21-127 or 53-21-128; and
(b) the conditionally released patient has violated a condition of
the release, that the violation has caused a deterioration of the patient's mental
condition, and that as a result of this deterioration, the patient can no longer be
appropriately served by outpatient care."
Comment: While the procedure is clear for rehospitalizing a
conditionally released patient, it is unclear what procedure is necessary to transfer a
patient from outpatient to inpatient care.
Describe any procedures for conservatorship, guardianship,
etc., which are applicable to the mentally ill.
Not specified in the mental
health law.
Other (may include insights into state’s mental health
system, judicial interpretation of mental health code, or known movements for statutory
reform).
