- When not the subject of a pending commitment action, what are the
prerequisites for an individual to receive voluntarily treatment?
§ 7501
"The head of a hospital which has been officially designated by the commissioner may
receive therein for observation, diagnosis, care, and treatment any individual whose
admission is sought on proper application."
§ 7503. (a) "Any person 14 years of age or
over may apply for voluntary admission…(b) Before the person may be admitted as a
voluntary patient he shall give his consent in writing…"
Comment: § 7501 gives discretion to the head of a hospital
to decide whether or not to receive an individual for voluntary admission.
Conditions necessary for emergency treatment/observation.
The law provides conditions
for both emergency treatment and immediate, emergency treatment:
§ 7504. (a) "A person shall be admitted to a
designated hospital for an emergency examination to determine if he is a person in need of
treatment upon written application by an interested party accompanied by a certificate by
a licensed physician who is not the applicant."
§ 7505. (a) In emergency circumstances where a
certification by a physician is not available without serious and unreasonable delay, and
when personal observation of the conduct of a person constitutes reasonable grounds to
believe that the person is a person in need of treatment, and he presents an immediate
risk of serious injury to himself or others if not restrained, a law enforcement officer
or mental health professional may make an application, not accompanied by a physician's
certificate, to any district or superior judge for a warrant for an immediate examination.
Comment: The standard for emergency
examination/treatment is confusing, perhaps even inconsistent. Under § 7505 (a), a police
officer or mental health professional makes an application for an immediate examination
based on "reasonable grounds to believe" that a person presents an "immediate
risk of serious injury…" (emphasis added). However, under § 7510 (a), if
the district court conducts a preliminary hearing, the court determines whether there was
"probable cause to believe that he was a person in need of treatment at
the time of his admission..." (emphasis added). (See § 7101 (17) for "a person
in need of treatment definition.) Furthermore, § 7703 (a) states that, "Emergency
involuntary treatment shall be undertaken only when clearly
necessary." (emphasis added).
Is mental illness/disorder defined?
§ 7101 (14)
"’Mental illness’ means a substantial disorder of thought, mood,
perception, orientation, or memory, any of which grossly impairs judgment, behavior,
capacity to recognize reality, or ability to meet the ordinary demands of life, but shall
not include mental retardation…"
§ 7101 (17) "’A person in need of
treatment’ means a person who is suffering from mental illness and, as a result of
that mental illness, his capacity to exercise self-control, judgment, or discretion in the
conduct of his affairs and social relations is so lessened that he poses a danger of harm
to himself or others;
(A) A danger of harm to others may be shown by establishing that:
(i) he has inflicted or attempted to inflict bodily harm on another;
or
(ii) by his threats or actions he has placed others in reasonable
fear of physical harm to themselves; or
(iii) by his actions or inactions he has presented a danger to
persons in his care.
(B) A danger of harm to himself may be shown by establishing that:
(i) he has threatened or attempted suicide or serious bodily harm;
or
(ii) he has behaved in such a manner as to indicate that he is
unable, without supervision and the assistance of others, to satisfy his need for
nourishment, personal or medical care, shelter, or self-protection and safety, so that it
is probable that death, substantial physical bodily injury, serious mental deterioration
or serious physical debilitation or disease will ensue unless adequate treatment is
afforded…"
Maximum duration of emergency treatment/observation before a
judicial hearing must be held.
§ 7508 (d)
"If the psychiatrist does certify that the person is a person in need of treatment,
the person's hospitalization may continue for an additional [beyond the "one working
day after admission" allowed for psychiatrist certification per § 7508 (a)] 72
hours, at which time hospitalization shall terminate, unless within that period:
(1) the person has been accepted for voluntary admission under
section 7503 of this title; or
(2) an application for involuntary treatment is filed with the
appropriate court under section 7612 of this title in which case the patient shall remain
hospitalized pending the court's decision on the application."
§ 7510 (a) "Within five days after a person
is admitted to a designated hospital for emergency examination, he may request the
district court to conduct a preliminary hearing to determine whether there is probable
cause to believe that he was a person in need of treatment at the time of his
admission…(b) The court shall conduct the hearing within three working days of the
filing of the request."
Comment: It is unclear whether the second provision is only
operative once an application for involuntary treatment is filed. If not, these two
provisions appear to be inconsistent; the first provision mandates termination after 72
hours (three days), whereas the second implies detention for up to five 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?
Yes, a potential committee
can avoid a hearing determination by opting to voluntarily undergo treatment. No minimum
treatment time is specified.
§ 7709. "At any time, a patient may, with the
permission of the head of the hospital, have his status changed from involuntary to
voluntary upon making application as provided in section 7503 of this title."
§ 8010. (a) "If a voluntary patient gives
notice in writing to the head of the hospital of his desire to leave the hospital, he
shall promptly be released unless he agreed in writing at the time of his admission that
his release could be delayed."
Comment: § 7501 gives discretion to the head of a hospital
to decide whether or not to receive an individual for admission.
Are there any requirements that a potential committee be
capable of deciding to voluntarily undergo treatment?
Not specified in the mental
health law.
Who may petition for an individual to receive assisted
inpatient treatment?
§ 7612. (a)
"An interested party may, by filing a written application, commence proceedings for
the involuntary treatment of an individual by judicial process."
§ 7101 (9) "’Interested party’
means a guardian, spouse, parent, adult child, close adult relative, a responsible adult
friend or person who has the individual in his charge or care. It also means a mental
health professional, a law enforcement officer, a licensed physician, a head of a
hospital, a selectman, a town service officer or a town health officer…"
Required elements of a petition.
§ 7612
The application must contain "a statement of the current and relevant facts upon
which the allegation of mental illness and need for treatment is based" and be
accompanied by "a certificate of a licensed physician…"
Is there a penalty for filing an unfounded petition?
§ 7104
"Any person who willfully causes, or conspires with or assists another to cause: (1)
the hospitalization of an individual knowing that the individual is not mentally ill or in
need of hospitalization or treatment as a mentally ill or mentally defective
individual…(4) … shall be fined not more than $500.00 or imprisoned not more
than one year, or both."
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.).
Specified individuals are
entitled to notice of admission and to notice of hearing. Additionally, the applicant for
the treatment order has the right to testify at the hearing.
§ 7106. "Whenever a patient has been admitted
to a hospital or training school other than upon his own application, the head of the
hospital or school shall immediately notify the patient's legal guardian, spouse, parent
or parents, or nearest known relative or interested party, if known."
§ 7613. (a) "When the application [for
involuntary treatment] is filed, the court shall…transmit a copy of the application,
the physician's certificate, if any, and a notice of hearing to the proposed patient, his
attorney, guardian, or any person having custody and control of the proposed patient, the
state's attorney, or the attorney general, and any other person the court believes has a
concern for the proposed patient's welfare. A copy of the notice of hearing shall also be
transmitted to the applicant and certifying physician."
§ 7615 (d) "The applicant and the proposed
patient shall have a right to appear at the hearing to testify…The court may, at its
discretion, receive the testimony of any other person."
Comment: It is not entirely clear whether § 7106 requires
notification to one or to all of the listed parties. Given the statutory construction and
the use of the word "or" it is likely that the section requires notification to
only one of the listed parties.
Length of initial term of assisted inpatient treatment.
§ 7619.
"…90 days from the date of the hearing."
Conditions necessary for judicially ordered inpatient
treatment (exact wording of key portions of applicable statute desired).
§ 7611.
"No person may be made subject to involuntary treatment unless he is found to be a
person in need of treatment or a patient in need of further treatment."
§ 7101 (16) "A patient in need of further
treatment" means:
(A) A person in need of treatment, or
(B) A patient who is receiving adequate treatment, and who, if such
treatment is discontinued, presents a substantial probability that in the near future his
condition will deteriorate and he will become a person in need of treatment…"
Comment: The language "in the near future his condition
will deteriorate" is unusual. This language does not require the existence of a
present condition and therefore allows for preventative treatment measures.
§ 7101 (17) "A person in need of
treatment" means a person who is suffering from mental illness and, as a result of
that mental illness, his capacity to exercise self-control, judgment, or discretion in the
conduct of his affairs and social relations is so lessened that he poses a danger of harm
to himself or others;
(A) A danger of harm to others may be shown by establishing that:
(i) he has inflicted or attempted to inflict bodily harm on another;
or
(ii) by his threats or actions he has placed others in reasonable
fear of physical harm to themselves; or
(iii) by his actions or inactions he has presented a danger to
persons in his care.
(B) A danger of harm to himself may be shown by establishing that:
(i) he has threatened or attempted suicide or serious bodily harm;
or
(ii) he has behaved in such a manner as to indicate that he is
unable, without supervision and the assistance of others, to satisfy his need for
nourishment, personal or medical care, shelter, or self-protection and safety, so that it
is probable that death, substantial physical bodily injury, serious mental deterioration
or serious physical debilitation or disease will ensue unless adequate treatment is
afforded
Comment: In comparison to other state laws, these definitions
are very comprehensive and thorough. The gravely disabled language in § 7101(17)(B)(ii)
provides "need for treatment" standard, one that allows mandated treatment for
the probability of "serious mental deterioration."
Evidentiary standard under which eligibility for assisted
treatment is judged (two most common are "beyond a reasonable doubt" and
"clear and convincing evidence").
§ 7616 (b)
"clear and convincing evidence"
Is there a least restrictive treatment requirement?
§ 7617 (c)
"Prior to ordering any course of treatment, the court shall determine whether there
exists an available program of treatment for the person which is an appropriate
alternative to hospitalization. The court shall not order hospitalization without a
thorough consideration of available alternatives."
§ 7703. (a) "Outpatient or partial
hospitalization shall be preferred to inpatient treatment. Emergency involuntary treatment
shall be undertaken only when clearly necessary. Involuntary treatment shall be utilized
only if voluntary treatment is not possible."
Comment: These provisions mandate
consideration of all available alternatives and express a preference for
non-hospitalization, however, they do not expressly require the least restrictive
treatment.
Is there a confidentiality exception for family members of
committees and/or individuals undergoing emergency evaluations?
§ 7103 (b)
"Nothing in this section shall preclude disclosure, upon proper inquiry, or
information concerning medical condition to the members of the family of a patient or to
his clergyman, his physician, his attorney, or an interested party." See response 7
for the definition of "interested party."
Are advance directives or durable powers of attorney
addressed and, if so, in what way?
Yes, Title 14, Chapter 121
(starting at § 3451) and § 7626 both address durable powers of
attorney.
§ 3453 The agent’s authority is in effect
"only when the principal lacks capacity to make health care decisions, as certified
in writing by the principal’s attending physician…" When the durable power
of attorney is in effect and "irrespective of the principal’s
capacity…treatment may not be given to or withheld from the principal over the
principal’s objection."
§3457 The principal may revoke a durable power of
attorney by written or oral notification to the agent or a health or residential care
provider.
§ 7626 (a) If a person is the subject of a
petition for involuntary medication and has executed a durable power of attorney,
"the court shall suspend the hearing on the petition, and enter an order for
treatment, if the court determines that:
(1) the person is refusing to accept psychiatric medication;
(2) the person is not competent to make a decision regarding the
proposed treatment; and
(3) the decision regarding the proposed treatment is within the
scope of the valid, duly executed durable power of attorney for health care."
§ 7626 (c) The court shall reconvene the hearing
on the petition 45 days after the order is entered. The court will then dismiss the
petition, or render a decision on medication, depending on whether the person has
"experienced a significant clinical improvement in his or her mental
state…"
Comment: The 45 day rule is unusual. The rule allows for the
use of durable powers of attorney, while still maintaining a process for court review of
agent decisions to authorize involuntary medication.
Is there a separate proceeding necessary to abrogate a
committee’s right to refuse treatment?
Yes, §§ 7624-7628
establish a separate judicial proceeding for involuntary medication.
Comment: The new law gives a clear statement
of legislative intent in § 7629 (c),
"It is the policy of the general assembly to work towards a mental health system that
does not require coercion or the use of involuntary medication."
Does the treating hospital and/or physician have discretion
to release individuals before the end of their assisted inpatient treatment periods?
§ 8009. (a)
"The head of the hospital may at any time discharge a voluntary or judicially
hospitalized patient whom he deems clinically suitable for discharge."
§ 7802 "…whenever the head of a hospital
or the board certifies that the patient is not a patient in need of further treatment, the
patient shall be discharged." See response 12 for the "patient in need of
further treatment" definition.
Individual(s) who may decide to initiate new periods of
assisted treatment.
§ 7620(a)
"the commissioner"
- Type of forum that decides on need for extended assisted
treatment (normally either judicial or administrative)
§ 7620(a) "the court"
- 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.)
Not specified.
