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ANALYSIS OF OKLAHOMA'S ASSISTED
TREATMENT LAWS
Statutory Compilation Used: West’s
Oklahoma Statutes Annotated
Current through: 1990 Replacement Code, Including Revisions from the
2001 Supplement & Senate Bill 1624.
Analysis Completed: August 29, 2001 JDS
1. When not the subject of a pending commitment action,
what are the prerequisites for an individual to receive voluntarily treatment?
A person may receive voluntary
treatment in one of three ways1. First, a person2 may be admitted to
a state mental hospital or community mental health center on a voluntary basis as an
informal patient if there are available accommodations and the person in charge of the
facility feels that they may require treatment. See § 43A-5-302. A person,
eighteen years or older, may also make a written application for admission. The person in
charge of the facility may then, at his discretion, receive and retain the person. See
§ 43A-5-304. Finally, any person desiring and needing psychiatric treatment may
present his written application to a judge in the district court of the county in which he
resides. See § 43A-5-305. This application must be accompanied by a certificate
in duplicate signed by a doctor stating that the doctor has examined this person and feels
that they are in need of psychiatric treatment. See § 43A-5-306.
Notes:
Neither the
state nor any of its agents is under a legal duty to admit a person as a informal patient,
and refusal, if made in good faith, will not give rise to a cause of action. See §
43A-5-303.
When dealing with voluntary
admissions, "person" means one found, by the court, to be 'partially
incapacitated' and 'possessing the capacity to voluntarily admit himself to a state
hospital,' and over whom a limited guardian has been appointed. See § 43A-5-301.1.
2. Conditions necessary for
emergency treatment.
There are three ways to initiate
emergency treatment and there is a separate procedure to initiate prehearing detention.
For emergency treatment:
Person appears to be mentally ill: § 43A-5-207(A). "Any person who appears to
be or states that such person is mentally ill… to a degree that immediate emergency
action is necessary may be taken into protective custody and detained as provided pursuant
to the provisions of this section."
Peace officer believes person is
mentally ill: § 43A-5-207(B). "Any peace officer who reasonably believes that a
person is a person requiring treatment…as defined in § 1-103 of this title shall
take the person into protective custody."
Family member believes person is
mentally ill: § 43A-5-207(E). "The parent, brother or sister who is eighteen
(18) years of age or older, child who is eighteen (18) years of age or older, or guardian
of the person, or a person who appears to be or states that such person is mentally
ill… to a degree that emergency action is necessary may request the administrator of
a facility designated by the Commissioner as an appropriate facility for an emergency
examination to conduct an emergency examination to determine whether the condition of the
person is such that emergency detention is warranted and, if emergency detention is
warranted, to detain said person as provided by this act."
For prehearing detention:
A request for an order of prehearing detention can be attached to the petition for
involuntary commitment. Per § 5-413(C), "If the court finds that probable cause to
detain the person alleged to have a mental illness and to be a person requiring treatment
does exist…" then the court may authorize transportation to a facility or, if
the person is being held in emergency detention, the court may authorize the facility to
detain the person prior to the hearing on the petition.…"
3. Is mental illness/disorder
defined?
§ 43A-1-103. "Mentally
illness' means a substantial disorder of thought, mood, perception, psychological
orientation or memory that significantly impairs judgment, behavior, capacity to recognize
reality or ability to meet the ordinary demands of life."
4. Maximum duration of emergency
treatment before a judicial hearing must be held.
Seventy-two hours, excluding
weekends and holidays, except upon a court order authorizing detention beyond a
seventy-two-hour period or pending the hearing a petition requesting involuntary
commitment or treatment. § 43A-5-413(2).
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?
Oklahoma Mental Health Code allows
a patient to apply for voluntary treatment during the emergency detention period and only
institutes many of its procedures once the "individual has refused to consent or has
withdrawn consent to voluntary treatment." See §§ 43A-5-208(B) to (C).
6. Are there any requirements
that a potential committee be capable of deciding to voluntarily undergo treatment?
§ 43A-5-208(B) to (C) does not
specify that a person must be able to give informed or knowing consent. §43A-5-208(B)(1)
only states that emergency proceedings may be instituted if a person refuses or withdraws
consent to voluntary treatment.
7. Who may petition for an
individual to receive assisted inpatient care?
§ 43A-5-410(A) specifies a number
of people, including:
The father,
mother, husband, wife, brother, sister, guardian or child, over the age of eighteen (18)
years, of a person alleged to be a person requiring treatment;
A licensed
mental health professional;
The executive
director of a facility designated by the Commissioner of Mental Health and Substance Abuse
Services as appropriate for emergency detention or an administrator of a hospital that is
approved by the Joint Commission on Accreditation of Healthcare Organizations;
A person in
charge of any correctional institution;
Any peace
officer within the county in which the individual alleged to have a mental illness and to
be a person requiring treatment resides or may be found; or
The district
attorney in whose district the person resides or may be found.
8. Required elements of a
petition.
§ 43A-5-410(B). "The petition
shall contain a statement of the facts upon which the allegation is based and, if known,
the names and addresses of any witnesses to the alleged facts.
The petition
shall be verified and made under penalty of perjury.
A request for a
prehearing detention of the individual alleged to have a mental illness and to be a person
requiring treatment may be attached to the petition.
If the
individual alleged to have a mental illness and to be a person requiring treatment
is being held in emergency detention, a copy of the certificate of evaluation shall be
attached to the petition."
Note: If a certificate is
not attached to the petition, the court shall order the person subject to the petition to
undergo an evaluation by two licensed health professionals. See § 43A-5-414(A) to
(B).
9. Is there a penalty for filing
an unfounded petition?
Yes, various statutes penalize the
filing of an unfounded petition. § 43A-5-103 specifies that a person who knowingly files
a false petition shall be guilty of a misdemeanor with fines of up to $1000 and/or
imprisonment for up to one year. § 43A-5-104 specifies the same punishment for physicians
who falsely or negligently certify that someone is mentally ill. § 43A-5-207 specifies
that, "Any false statement given to the officer by the person upon whose statement
the officer relies (for emergency detention) shall be a misdemeanor and subject to the
sanctions of Title 21 of the Oklahoma Statutes."
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.).
For notice on hearing: §
43A-5-412(D)(1).
"A copy of the
notice, the petition, and the attachments to the petition, if any, shall also be delivered
at least one (1) day prior to the hearing to:
the individual
initiating the request for protective custody, emergency detention, involuntary
commitment, or prehearing detention,
the attorney or
court-appointed counsel of the person, to the district attorney, and to the public
defender, if any,
the facility, if
any, in which the person is detained in emergency detention,
the Department
of Mental Health and Substance Abuse Services, and
a parent,
spouse, guardian, brother, sister or child who is at least eighteen (18) years of age of
the individual alleged to have a mental illness and to be a person requiring treatment and
who is not the individual initiating the petition or a request for protective custody,
emergency detention, involuntary commitment, or prehearing detention. Notice shall also be
delivered to any other person as may be ordered by the court."
To present testimony: §
43A-5-411(6) "The petitioner and witnesses identified in the petition shall offer
testimony under oath at the hearing on the petition. When the hearing is conducted as a
jury trial, the petitioner and any witness in behalf of the petitioner shall be subject to
cross-examination by the attorney for the person alleged to be a person requiring
Treatment." See also § 43A-5-415(C)(3).
11. Length of initial term of
assisted inpatient care.
Oklahoma does not assign a time
limit on the term of assisted inpatient care. Persons may be discharged at such time as
the person no longer requires treatment. See § 43A-5-414(E)(3). Involuntary status
reviews are conducted at least once every three months. § 43A-5-420(A). Persons receiving
involuntary treatment may request a review of their status at any time, with hearings on
the matter to take place within thirty days. § 43-5-420(B).
12. Conditions necessary for
judicially ordered inpatient care (exact wording of key portions of applicable statute
desired).
§ 43A-5-415(C). "[W]hether
the person has a mentally illness and is a person requiring treatment."
§ 43A-1-103(3). "Mental
illness' means a substantial disorder of thought, mood, perception, psychological
orientation, or memory that significantly impairs judgment, behavior, capacity to
recognize reality or ability to meet the ordinary demands of life;"
§ 43A-1-103(14). "Person
requiring treatment' means either:
a person who because of a mental
illness of the person represents a risk of harm to self or others,
a person who is
a drug- or alcohol-dependent person and who as a result of dependency represents a risk of
harm to self or others, or
a person who
appears to require inpatient treatment:
(i) for a previously diagnosed history of schizophrenia, bipolar disorder, or
major depression with suicidal intent, or (ii) due to the appearance of symptoms of
schizophrenia, bipolar disorder, or major depression with suicidal intent, and
for whom such treatment is reasonably believed to prevent progressively more
debilitating mental impairment.
Person requiring
treatment shall not mean a person whose mental processes have been weakened or impaired by
reason of advanced years, a mentally retarded person as defined in Title 10 of the
Oklahoma Statutes, a person with seizure disorder, or a person with a traumatic brain
injury, unless the person also meets the criteria set forth in subparagraph a of this
paragraph.
13. Evidentiary standard
under which inpatient criteria are judged (two most common are clear and convincing
evidence & beyond a reasonable doubt)?
§ 43A-5-415(C). "Clear and
convincing evidence."
14. Is there a least restrictive
treatment requirement?
Yes. § 43A-5-415(E), "[T]he
court shall order the person to receive the least restrictive treatment consistent with
the treatment needs of the person and the safety of the person and others."
15. Is there a confidentiality
exception for family members of committees and/or individuals undergoing emergency
evaluations?
Yes, in specified circumstances.
For notice of detention: §
43A-5-209(C). "The person being held in protective custody or emergency detention
shall be asked to designate any person whom such person wishes informed regarding the
detention. If the person being detained is incapable of making such designation, the
administrator of the hospital or facility …shall notify within twenty-four (24) hours
of taking the person into protective custody, other than the person initiating the request
for protective custody, the attorney, parent, spouse, guardian, brother, sister, or child
who is at least eighteen (18) years of age of the person."
Comment: Unfortunately,
Oklahoma SB 1624 deleted the state's well-crafted confidentiality exception for relatives
of someone who is hospitalized (former § 43-1-109(C)). Accordingly, parents and
family members no longer have any means to obtain information as simple as whether or not
their relative is currently listed as a patient.
16. Are advance directives or
durable powers of attorney addressed and, if so, in what way?
Yes, advance directives are
addressed in section 11, the "Advance Directives for Mental Health Treatment
Act." See §§ 43A-11-101 to -113. The statutory provisions allow capable
adults to make a declaration stating their mental health treatment wishes and allow for
the appointment of an attorney-in-fact in case of future incapacity.
17. Is there a separate
proceeding necessary to abrogate a committee's right to refuse treatment?
For treatment and medication
during prescreening detention: § 5-204(B), "Treatment and medication may be
administered to a nonconsenting individual upon the written order of a physician
who has personally examined the patient and who finds such medication or treatment is
necessary to protect the patient, the facility or others from serious bodily harm, and who
so notes in the individual's medication record, with an explanation of the facts leading
up to the decision to administer treatment and medication including psychotropic
medication."
For treatment during inpatient
commitment: the competency decision is made during the same hearing that governs
inpatient commitment. See § 43A-5-415(C)(1).
18. Does the treating hospital
and/or physician have discretion to release individuals before the end of their assisted
inpatient care periods?
Yes, the executive director of the
facility or his/her designee may release the person if he/she "no longer requires
treatment." § 43A-5-415(E)(6). Although the statute specifies that
this determination is to be made by the executive director, it is unclear whether this
leaves the decision to the discretion of the executive director, or refers to the
placement standard of "person who requires inpatient treatment." See §
43A-1-103(14).
19. Individual(s) who may decide
to initiate new periods of assisted treatment.
Because the initial period of
assisted treatment may last indefinitely, or until the person is deemed to no longer
require treatment, there are no provisions for initiating new periods of assisted
treatment in the Oklahoma Mental Health Codes. § 43A-5-420 does require a review of
status at least once every three months and that any person receiving involuntary
treatment can request the committing court to review the treatment order.
20. Type of forum that decides on
need for extended treatment (normally either judicial or administrative).
See Answer No. 19.
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.).
See Answer No. 19.
22. Maximum length of subsequent
mandated inpatient care (and of any possible subsequent periods).
See Answer No. 19.
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).
§ 43A-5-415(E)(2), "The court
may order the individual to receive whatever treatment other than hospitalization that is
appropriate for a period set by the court, during which time the court shall continue its
jurisdiction over the individual as a mentally ill person requiring treatment." See
also § 43A-416(B)(1).
Alternatives to assisted inpatient
treatment include convalescent leave, or transfer to outpatient status. (For convalescent
leave see: § 43A-7-101(B); for criteria for transfer to outpatient status see: §
43A-7-101(C)).
24. Maximum duration of
alternative(s) to mandated inpatient care.
A period set by the court. §
43A-5-415(E)(2).
25. Procedure necessary to
transfer patient from outpatient to inpatient care.
If, at any time, it appears that a
person subject to an alternative treatment order is not complying with the order, or that
the order has not been sufficient to prevent harm or injury to him/herself or others; the
court may order the person to show cause why the court should not: modify or rescind the
original order, direct the individual to undergo another period of hospitalization, or
direct that the person be committed to inpatient treatment. See § 43A-5-416(B)(2).
The court shall give notice to the
person ordered to show cause and hold the hearing within seventy-two (72) hours of the
notice. The person ordered to undergo a program of alternative treatment shall not
be detained in emergency detention pending the show cause hearing unless, prior to the
emergency detention, the person has undergone an emergency examination and a determination
is made that emergency detention is warranted. § 43A-5-416(B)(3).
Note: Returning the patient
to the facility following discharge is covered in § 43A-7-101(G).
26. Procedure necessary to
institute and maximum duration of subsequent periods of alternative(s) to inpatient
assisted treatment.
If an order of alternative
treatment will expire without further review by the court and it is believed that the
individual continues to require treatment, a person competent to file a petition, pursuant
to § 43A-5-410(A) [listed in Answer No. 7], may file, or request the district
attorney file, an application for an extension of the court's previous order or an
entirely new petition for treatment. A hearing on this application will be held within ten
days. If the prior order will expire in less than ten days, the court will make
appropriate orders to protect the interests of the individual who is the subject of the
hearing. See § 43A-5-416(B)(4) to (5).
27. Describe any procedures for
conservatorship, guardianship, etc., which are applicable to the mentally ill.
§ 43A-5-209(C). "The person
being held in protective custody or emergency detention shall be asked to designate any
person whom such person wishes informed regarding the detention. If the person being
detained is incapable of making such designation, the administrator of the hospital or
facility where the person is being held in protective custody or emergency detention shall
notify within twenty-four (24) hours of taking the person into protective custody, other
than the person initiating the request for protective custody, the attorney, parent,
spouse, guardian, brother, sister, or child who is at least eighteen (18) years of age of
the person. If none of the persons designated for notification in this subsection
can be located, the administrator of the facility shall notify the sheriff of the county
where the person was taken into protective custody."
§ 43A-11-111. "Any person may
petition the district court for appointment of a guardian for a declarant when the person
has good reason to believe that the provision of mental health treatment in a particular
case:
Is contrary to
the most recent expressed wishes of a declarant who was capable at the time of expressing
the wishes;
Is being
proposed pursuant to an advance directive for mental health treatment that has been
falsified, forged, or coerced; or
Is being
considered without the benefit of a revocation which has been unlawfully concealed,
destroyed, altered or canceled."
28. Other (may include insights
into state's mental health system, judicial interpretation of mental health code, known
movements for statutory reform, or general comments).
Oklahoma's
statutes are complex and difficult to comprehend. However, the state's toll-free
help line, "Reach-Out" is knowledgeable & user-friendly, and can surely be a
comfort to families struggling with complex and confusing mental health law. Their
toll-free phone number is 800-522-9054.
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