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Analysis of New Jersey's Assisted Treatment Laws 

Last updated December 2003 

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

In New Jersey, an adult must be mentally ill and that mental illness must cause the person to be dangerous to self or other or property and the person must be willing to be admitted to a facility voluntarily for care. The mentally ill adult must also need care at a short-term care or psychiatric facility because there are no other facilities appropriate or available to meet that person's mental health needs.

A person may also be voluntarily admitted to a psychiatric facility if his mental illness presents a substantial likelihood of rapid deterioration in functioning in the near future, there are no appropriate community alternatives available, and the psychiatric facility can admit the person and remain within its rated capacity. N.J. STAT. § 30:4-27.2.(ee).

2. Conditions necessary for emergency treatment.

A person is first brought to a screening service to be assessed to determine what mental health services are appropriate. The individual is examined by a mental health screener who determines if involuntary commitment seems necessary. If so, the screener provides, on a screening document, information regarding the individual's history and what services are available and appropriate.

The individual is then examined by a psychiatrist who determines whether or not the individual is "in need of involuntary commitment." If so, the psychiatrist completes the screening certificate and the individual is admitted to a facility as quickly as possible. N.J. STAT. § 30:4-27.5.(a-b).

"In need of involuntary commitment" means that an adult who is mentally ill, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to be admitted to a facility voluntarily for care, and who needs care at a short-term care, psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the person's mental health care needs. N.J. STAT. § 30:4-27.2(m).

3. Is mental illness/disorder defined?

"Mental illness" means a current, substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior or capacity to recognize reality, but does not include simple alcohol intoxication, transitory reaction to drug ingestion, organic brain syndrome or developmental disability unless it results in the severity of impairment described herein. The term mental illness is not limited to "psychosis" or "active psychosis," but shall include all conditions that result in the severity of impairment described herein. N.J. STAT. § 30:4-27.2(r).

4. Maximum duration of emergency treatment before a judicial hearing must be held.

"[N]o more than 72 hours from the time the screening certificate was executed." N.J. STAT. § 30:4-27.9(c).

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?

Not specified in the New Jersey mental health code.

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

Not specified in the New Jersey mental health code.

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

N.J. STAT. § 30:4-27.10 specifies that a court proceeding for involuntary commitment may be initiated by:

• A short-term care or psychiatric facility or special psychiatric hospital by submitting to the court a clinical certificate completed by a psychiatric on the patient's treatment team and the screening certificate which authorized admission of the patient to the facility;

• Submitting to the court two clinical certificates, at least one of which is prepared by a psychiatrist;

• The Attorney General:

  • The Attorney General may, in exercise of the state's parens patriae powers, initiate a court proceeding in accordance with the procedures set forth in either of the above procedures;

  • If the Attorney General determines that the public safety requires it, the Attorney General may apply to the court for an order compelling the psychiatric evaluation of a person;

  • The Attorney General may also initiate a court proceeding for involuntary commitment of an inmate who is scheduled for release upon expiration of a maximum term of incarceration by submitting to the court two clinical certificates, at least one of which is prepared by a psychiatrist.

"Screening certificate" means a clinical certificate executed by a psychiatrist or other physician affiliated with a screening service. N.J. STAT. § 30:4-27.2(y).

"Clinical certificate" means a form prepared by the division and approved by the Administrative Office of the Courts, that is completed by the psychiatrist or other physician who has examined the person who is subject to commitment within three days of presenting the person for admission to a facility for treatment, and which states that the person is in need of involuntary commitment. The form shall also state the specific facts upon which the examining physician has based his conclusion and shall be certified in accordance with the Rules of the Court. A clinical certificate may not be executed by a person who is a relative by blood or marriage to the person who is being screened. N.J. STAT. § 30:4-27.2(b).

8. Required elements of a petition.

A petition must contain two clinical certificates or, in the case of a petition initiated by a short-term care facility, psychiatric facility, or special psychiatric hospital, a clinical certificate and the screening certificate which authorized admission of the patient to the facility.

The clinical certificate must be completed by a psychiatrist or other physician who has examined the person within three days of presenting him or her for admission to a facility for treatment and must state that the person is in need of involuntary commitment. The form must also state the specific facts upon which the examining physician has based his conclusion and be certified in accordance with the Rules of the Court. The certificate may not be executed by a person who is a relative by blood or marriage to the person who is being screened.

9. Is there a penalty for filing an unfounded petition?

Any person who is a relative by blood or marriage of the person being screened who executes a clinical certificate, or any person who signs a clinical certificate for any purpose or motive other than for purposes of care, treatment and confinement of a person in need of involuntary commitment, shall be guilty of a crime of the fourth degree. N.J. STAT. § 30:4-27.10(e).

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

N.J. STAT. § 30:4-27.12:

a. At least 10 days prior to a court hearing, the county adjuster of the admitting county or the Attorney General or county prosecutor if presenting the case for the patient's involuntary commitment, shall cause notice of the court hearing to be served upon the patient, the patient's guardian if any, the patient's next-of-kin, the patient's attorney, the director, chief executive officer, or other individual who has custody of the patient, the county adjuster of the county in which the patient has legal settlement and any other individual specified by the court. The notice shall contain the date, time and location of the court hearing.

b. A psychiatrist on the patient's treatment team who has conducted a personal examination of the patient as close to the court hearing date as possible, but in no event more than five calendar days prior to the court hearing, shall testify at the hearing to the clinical basis for the need for involuntary commitment. Other members of the patient's treatment team and any other witness with relevant information offered by the patient or the persons presenting the case for civil commitment shall also be permitted to testify at the hearing.

c. The patient's next-of-kin may attend and testify at the court hearing if the court so determines.

11. Length of initial term of assisted inpatient care.

The final hearing must occur within twenty (20) days of initial admission. N.J. Stat. § 30:4-27.12(a).

A patient who is involuntary committed to a short-term care of psychiatric facility or special psychiatric hospital shall receive a court hearing with respect to the issue of continuing need for involuntary commitment within 20 days from initial inpatient admission to the facility. N.J. Stat. § 30:4-27.12(a).

The court shall conduct periodic court review hearings of the need for involuntary commitment. The court shall conduct the first review hearing three months from the date of the first hearing, the next review hearing nine months from the date of the first hearing and subsequent review hearings 12 months from the date of the first hearing and annually thereafter. The court may schedule additional review hearings but, except in extraordinary circumstances, not more often than once every 30 days. N.J. STAT. § 30:4-27.16(a).

12. Conditions necessary for judicially ordered inpatient care (exact wording of key portions of applicable statute desired).

"If the court finds by clear and convincing evidence that patient needs continued involuntary commitment…" N.J. STAT. § 30:4-27.15(a).

13. 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. N.J. STAT. § 30:4-27.15(a).

14. Is there a least restrictive treatment requirement?

N.J. Stat. § 30:4-27.11d(b)(2). A patient receiving treatment in a short-term care facility has the right… to the least restrictive conditions necessary to achieve the purposes of treatment.

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

No.

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

Not specified in the New Jersey mental health code.

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

Patients in a short-term care facility have the right to refuse, and to be free from unnecessary or excessive medication. Medication may only be administered at the written or verbal order of a physician and in accordance with generally accepted medical standards as part of a treatment program. Medication may not be used as punishment, for staff convenience, as a substitute for a treatment program, or in quantities that interfere with a patient's treatment program.

In an emergency in which less restrictive or appropriate alternative acceptable to the patient are not available to prevent immediate danger to the patient or others, medication may be administered over the patient's objection at the written order of a physician, for a period of 72 hours.

In situations in which imminent danger is not present, a patient's right to refuse medication may be overridden by a written policy which has been adopted by the facility. The written policy shall, at a minimum, provide for appropriate procedures that ensure notice to the patient of the decision by the attending physician or other designated physician to administer medication, the right to question the physician about his decision to administer medication and to provide information to the physician regarding that decision. The written policy shall also provide for review of the patient's decision to object to the administration of medication by a psychiatrist who is not directly involved in the patient's treatment.

A psychiatrist may not override the patient's decision to object to the administration of medication in a non-emergency situation unless the psychiatrist determines that:

• The patient is incapable, without medication, of participating in a treatment plan that will provide a realistic opportunity of improving his condition; or

• Although it is possible to devise a treatment plan that will provide a realistic opportunity of improving the patient's condition without medication, a treatment plan which includes medication would probably improve the patient's condition within a significantly shorter time period, or there is a significant possibility that, without medication, the patient will harm himself or others before improvement of his condition is realized.

N.J. STAT. § 30:4-27.11d.

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

The treatment team at a short-term care or psychiatric facility or special psychiatric hospital shall… administratively discharge a patient from involuntary commitment status if the treatment team determines that the patient no longer needs involuntary commitment. If a discharge plan has not been developed pursuant to section 18 of this act, it shall be developed forthwith. N.J. STAT. § 30:4-27.17.(a).

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

Not applicable. There is periodic judicial review of commitment until administrative discharge.

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

Judicial.

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.).

The notice and participation provisions of N.J. STAT. § 30:4-27.13 apply to all hearings.

22. Maximum length of subsequent mandated inpatient care (and of any possible subsequent periods).

Not applicable.

23. Alternative(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).

New Jersey is currently one of only eight states in the country which does not have court ordered assisted outpatient commitment.

New Jersey does have procedures in place which allow for conditional release, in which an individual is released from involuntary commitment subject to certain conditions such as maintaining contact with a psychologist or maintaining a treatment regimen. It is worth noting that a definite distinction can be made between assisted outpatient treatment and conditional release, although both serve as effective tools in expediting the recovery of someone in need of treatment. The main difference between the two is timing.

Conditional release can occur only after someone has already been admitted to a treatment facility. Assisted outpatient treatment, on the other hand, serves as a preventative alternative to involuntary commitment, allowing the state to provide treatment to those in need before having to expend resources for inpatient commitment and conditional placement.

In addition, a duo of recent court cases has called into question the effectiveness of the already limited conditional release provisions available in this state. Under current interpretations by the Appellate Division of the Superior Court of New Jersey, individuals on conditional release may not be returned to a facility unless they meet the standard for initial inpatient placement (dangerousness). In effect, the fact that the individual is on conditional release has absolutely no significance: despite the fact that the individual is only in the community on a conditional basis, he or she still may not be returned to a facility unless the initial dangerousness standard is met. In re Commitment of B.L., 346 N.J. Super. 285 (N.J. Super. Ct. App. Div. 2002).

24. Maximum duration of alternative(s) to mandated inpatient care.

For conditional release: Conditions imposed on the patient… shall not exceed 90 days unless the court determines, in a case in which the Attorney General or a county prosecutor participated, that the conditions should be imposed for a longer period.

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

Recommitment following conditional discharge: The designated mental health agency staff person notifies the court if a patient fails to meet the conditions of the discharge plan and the court then issues an order directing that the person be taken to a screening service for assessment. The court then determines, in conjunction with the findings of the screening service, if the patient needs to be rehospitalized. N.J. STAT. §30:4-27.15(c).

Note: The appellate division of the Superior Court of New Jersey recently decided a duo of cases which will have a far-reaching effect on the process of conditional discharge in New Jersey. The court specified that "recommitment of a mental patient must be based upon the standard for involuntary commitment of patients, that is, the patient is mentally ill and that illness causes the patient to be dangerous to himself, others, or property." In re Commitment of B.L., 346 N.J. Super. 285, 304 (N.J. Super. Ct. App. Div. 2002). This means that, even if an individual has completely disregarded the conditions specified in his or her discharge plan, the court must still find that the individual is dangerous to himself, others, or property before recommitment may take place. Simply violating the conditions of the discharge, without some behavior deemed dangerous, cannot constitute grounds for involuntary recommitment.

26. Procedure necessary to institute and maximum duration of subsequent periods of alternative(s) to inpatient assisted treatment.

New Jersey does not have any statutory provisions regarding subsequent periods of conditional discharge. Once the period of conditions has ended, the individual is considered discharged.

27. Other (may include insights into state's mental health system, judicial interpretation of mental health code, known movements for statutory reform, or general comments).

New Jersey is currently one of only nine states in the nation that does not allow for court ordered outpatient treatment in the community. This drastic shortcoming means that all too often, families are forced to stand by helplessly and watch as their loved ones needlessly deteriorate. Without assisted outpatient treatment, many of New Jersey's severely mentally ill citizens are caught in a vicious cycle of homelessness, incarceration and hospitalization. Assisted outpatient treatment would effectively short-circuit this cycle, allowing the severely mentally ill to regain their lives, freed from debilitating symptoms and circumstances.