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Last updated December 2003
Title 36 -
Public Health And Safety
Chapter 5 - Mental Health Services
ARTICLE 1 – GENERAL PROVISIONS
36-501. Definitions
In this chapter, unless the context otherwise requires:
1. "Admitting officer" means a psychiatrist or
other physician with experience in performing psychiatric examinations who has
been designated as an admitting officer of the evaluation agency by the person
in charge of the evaluation agency.
2. "Chief medical officer" means the chief medical
officer under the supervision of the superintendent of the state hospital.
3. "Court" means the superior court in the county
in this state in which the patient resides or was found prior to screening or
emergency admission under provisions of this title.
4. "Danger to others" means that the judgement of a person who has a mental disorder is so
impaired that he is unable to understand his need for treatment and as a result
of his mental disorder his continued behavior can reasonably be expected, on
the basis of competent medical opinion, to result in serious physical harm.
5. "Danger to self" means:
(a) Behavior which, as a result of a
mental disorder, constitutes a danger of inflicting serious physical harm upon
oneself, including attempted suicide or the serious threat thereof, if the
threat is such that, when considered in the light of its context and in light
of the individual's previous acts, it is substantially supportive of an
expectation that the threat will be carried out.
(b) Behavior which, as a result of a
mental disorder, will, without hospitalization, result
in serious physical harm or serious illness to the person, except that this
definition shall not include behavior which establishes only the condition of
gravely disabled.
6. "Department" means the department of health
services.
7. "Deputy director"
means the deputy director of the division of behavioral health in the
department of health services.
8. "Detention" means the taking into custody of a
patient or proposed patient.
9. "Director" means the director of the
department.
10. "Division" means the division of behavioral
health in the department.
11. "Evaluation" means a professional
multidisciplinary analysis based on data describing the person's identity,
biography and medical, psychological and social conditions carried out by a
group of persons consisting of not less than the following:
(a) Two licensed physicians, who
shall be qualified psychiatrists, if possible, or at least experienced in
psychiatric matters, and who shall examine and report their findings
independently. The person against whom a petition has been filed shall be
notified that he may select one of the physicians. A psychiatric resident in a
training program approved by the American medical association or by the
American osteopathic association may examine the person in place of one of the
psychiatrists if he is supervised in the examination and preparation of the
affidavit and testimony in court by a qualified psychiatrist appointed to
assist in his training, and if the supervising psychiatrist is available for
discussion with the attorneys for all parties and for court appearance and testimony
if requested by the court or any of the attorneys.
(b) Two other individuals, one of
whom, if available, shall be a psychologist and in any event a social worker
familiar with mental health and human services which may be available placement
alternatives appropriate for treatment. An evaluation may be conducted on an
inpatient basis, an outpatient basis or a combination of both and every
reasonable attempt shall be made to conduct the evaluation in any language
preferred by the person.
12. "Evaluation agency" means a health care agency
which is licensed by the department and which has been approved pursuant to
this title, providing those services required of such agency by this chapter.
13. "Examination" means an exploration of the
person's past psychiatric history and of the circumstances leading up to the
person's presentation, a psychiatric exploration of the person's present mental
condition and a complete physical examination.
14. "Family member" means a spouse, parent, adult
child, adult sibling or other blood relative of a person undergoing treatment
or evaluation pursuant to this chapter.
15. "Gravely disabled" means a condition evidenced
by behavior in which a person, as a result of a mental disorder, is likely to
come to serious physical harm or serious illness because he is unable to
provide for his basic physical needs.
16. "Independent evaluator" means a licensed
physician or psychologist selected by the person to be evaluated or by such
person's attorney.
17. "Informed consent" means a voluntary decision
following presentation of all facts necessary to form the basis of an
intelligent consent by the patient or guardian with no minimizing of known
dangers of any procedures.
18. "Least restrictive treatment alternative"
means the treatment plan and setting which infringe in the least possible
degree with the patient's right to liberty and which are consistent with
providing needed treatment in a safe and humane manner.
19. "Licensed physician" means any medical doctor
or doctor of osteopathy who is either:
(a) Licensed in this state.
(b) A full-time hospital physician
licensed in another state and serving on the staff of a hospital operated or
licensed by the
20. "Medical director of an evaluation agency" means
a psychiatrist, or other licensed physician experienced in psychiatric matters,
who is designated in writing by the governing body of the agency as the person
in charge of the medical services of the agency for the purposes of this
chapter and may include the chief medical officer of the state hospital.
21. "Medical director of a mental health treatment
agency" means a psychiatrist, or other licensed physician experienced in
psychiatric matters, who is designated in writing by the governing body of the
agency as the person in charge of the medical services of the agency for the
purposes of this chapter and includes the chief medical officer of the state
hospital.
22. "Mental disorder" means a substantial disorder
of the person's emotional processes, thought, cognition or memory. Mental
disorder is distinguished from:
(a)
Conditions which are primarily those of drug abuse, alcoholism or mental
retardation, unless, in addition to one or more of these conditions, the person
has a mental disorder.
(b) The declining mental abilities
that directly accompany impending death.
(c) Character and personality
disorders characterized by lifelong and deeply ingrained antisocial behavior
patterns, including sexual behaviors which are abnormal and prohibited by statute
unless the behavior results from a mental disorder.
23. "Mental health provider" means any physician
or provider of health, mental health or social welfare services involved in
evaluating, caring for, treating or rehabilitating a patient.
24. "Mental health treatment agency" means the
state hospital or a health care agency which is licensed by the department and
which provides those services which are required of the agency by this chapter.
25. "Outpatient treatment" or "combined
inpatient and outpatient treatment" means any treatment program not
requiring continuous inpatient hospitalization.
26. "Outpatient treatment plan" means a treatment
plan that does not require continuous inpatient hospitalization.
27. "Patient" means any person undergoing evaluation
or treatment under the provisions of this chapter.
28. "Peace officers" means
sheriffs of counties, constables, marshals and policemen of cities and
towns.
29. "Persistently or acutely disabled" means a
severe mental disorder that meets all the following criteria:
(a) If not treated has a substantial
probability of causing the person to suffer or continue to suffer severe and
abnormal mental, emotional or physical harm that significantly impairs
judgment, reason, behavior or capacity to recognize reality.
(b) Substantially impairs the
person's capacity to make an informed decision regarding treatment and this
impairment causes the person to be incapable of understanding and expressing an
understanding of the advantages and disadvantages of accepting treatment and
understanding and expressing an understanding of the alternatives to the
particular treatment offered after the advantages, disadvantages and
alternatives are explained to that person.
(c) Has a reasonable prospect of
being treatable by outpatient, inpatient or combined inpatient and outpatient
treatment.
30. "Prepetition
screening" means the review of each application requesting court-ordered
evaluation, including an investigation of facts alleged in such application, an
interview with each applicant and an interview, if possible, with the proposed
patient. The purpose of the interview with the proposed patient is to assess
the problem, explain the application and, when indicated, attempt to persuade
the proposed patient to receive, on a voluntary basis, evaluation or other
services.
31. "Prescribed form" means a form established by
a court or the rules of the division which have been approved by the director
or in accordance with the laws of this state.
32. "Professional" means a physician licensed
pursuant to title 32, chapter 13 or 17 or a psychologist certified pursuant to
title 32, chapter 19.1.
33. "Proposed patient" means a person for whom an
application for evaluation has been made or a petition for court-ordered
evaluation has been filed.
34. "Psychiatrist" means a licensed physician who
has completed three years of graduate training in psychiatry in a program
approved by the American medical association or the American osteopathic
association.
35. "Psychologist" means a person licensed under
the provisions of title 32, chapter 19.1 and experienced in the practice of
clinical psychology.
36. "Screening agency" means a health care agency
which is licensed by the department and which provides those services required
of such agency by this chapter.
37. "Social worker" means a person who has
completed two years of graduate training in social work in a program approved
by the council of social work education and who has experience in mental
health.
38. "State hospital" means the
39. "Superintendent" means the superintendent of
the state hospital.
36-502. Powers and duties of deputy
director; rules for standards, forms, administration, admission and transfer;
expenditure limitation
A.
The deputy director, with the approval of the director, shall make rules
including standards for agencies providing services, and prescribing forms as
may be necessary, for the proper administration and enforcement of this
chapter. The rules shall be applicable to patients admitted to or treated in
agencies as set forth in this chapter and shall provide for periodic
inspections of such agencies.
B.
The deputy director, with the approval of the director, shall make rules
concerning admission of patients and the transfer of patients between mental
health treatment agencies. A patient undergoing court-ordered treatment may be
transferred from one mental health treatment agency to another in accordance
with the rules of the deputy director, subject to the approval of the court.
C.
The deputy director, with the approval of the director, may make rules
concerning leaves, visits and absences of patients from evaluation agencies and
mental health treatment agencies.
D.
The total amount of state monies that may be spent in any fiscal year by the
department for mental health services pursuant to this chapter shall not exceed
the amount appropriated or authorized by section 35-173 for that purpose. This
chapter shall not be construed to impose a duty on an officer, agent or
employee of this state to discharge a responsibility or to create any right in
a person or group if the discharge or right would require an expenditure of
state monies in excess of the expenditure authorized by legislative
appropriation for that specific purpose.
36-503. Medical director of evaluation
agency or mental health treatment agency; deputy
The
medical director of an evaluation agency or the medical director of a mental
health treatment agency may deputize, in writing, subject to the approval of
the governing body of the agency, any qualified psychiatrist or licensed
physician on the staff of the agency to do or perform in his stead any act the
medical director is empowered to do or charged with responsibility of doing
pursuant to this chapter.
36-503.01. Duty of attorney general or
county attorney
Whenever
a physician or other person files a petition for court-ordered evaluation or
court-ordered treatment on behalf of a state or county screening, evaluation or
mental health treatment agency, the attorney general or the county attorney for
the county in which the proceeding is initiated, as the case may be, shall
represent the individual or agency in any judicial proceeding for involuntary
detention or commitment and shall defend all challenges to such detention or
commitment.
36-503.02. Serious mental illness services
fund; program termination
A.
The serious mental illness services fund is established consisting of monies
appropriated to the department from the tobacco litigation settlement account
in the state general fund, any other legislative appropriations and interest
earned on these monies. The department shall administer the fund.
B.
Monies in the fund:
1. Shall be used to supplement and not supplant existing and
future appropriations.
2. Are intended for the development of programs and services
that are of a onetime nature but that the department may implement over several
years.
3. Do not revert to the state general fund.
4. Are exempt from the provisions of section 35-190 relating
to lapsing of appropriations.
5. Are continuously appropriated.
C.
Except as provided in subsection D of this section, the department shall use
fund monies to provide community housing, vocational rehabilitation and other
recovery support services to persons with serious mental illness. The
department shall design these services to assist persons with serious mental
illness achieve the highest possible level of self-sufficiency. The department
shall establish performance evaluation standards to measure the department's
effective use of the monies in the fund.
D.
On or before
E.
Before the department may spend fund monies, the department shall present a
plan, including performance evaluation standards, to the joint legislative
budget committee for its review.
F.
This section does not affect or expand the existing rights of persons with
serious mental illness pursuant to this title.
G.
The program established by this section ends on
36-503.03. Civil
commitment treatment population; cap
(Rpld.
The
ARTICLE 2 – PATIENT’S LEGAL AND CIVIL RIGHTS
36-504. Notice of patient's rights;
notification to family
A.
Every person undergoing treatment or evaluation pursuant to this chapter is
entitled to the rights set forth in this chapter and to rights that the deputy
director, with the approval of the director, specifies by rule. A list of
patients' rights as required by this chapter and by the division shall be
compiled and published by the deputy director, with the approval of the
director, by rule. The list shall be prominently posted in English and Spanish
in all facilities providing evaluation or treatment. A patient's rights shall
otherwise be brought to the attention of the patient as this chapter requires
or the deputy director, with the approval of the director, may direct by rule.
B.
An agency which is evaluating, examining or treating a person pursuant to
article 4 or 5 of this chapter shall immediately notify the person's guardian
or, if none, a member of the person's family that the person is being treated
in the agency. If the person has an agent appointed pursuant to chapter 32 of
this title, the agency shall notify that agent. If the agency is unable to
learn the identity of the guardian or a member of the person's family or is
unable to contact them, it shall document every attempt that was made to comply
with such notification. The agency shall release any further information only
after the treating professional or that person's designee interviews the person
undergoing treatment or evaluation to determine whether or not release is in
that person's best interests. A decision to release or withhold information is
subject to review pursuant to section 36-517.01. The treating agency shall
record the name of a person to whom any information is given.
36-505. Rights at hearing
At
all hearings conducted pursuant to this chapter, persons shall have the right
to an analysis of their psychological condition by an independent evaluator.
36-506. Civil rights not impaired;
discrimination prohibited
A.
Persons undergoing evaluation or treatment pursuant to this chapter shall not
be denied any civil right, including but not limited to, the right to dispose
of property, sue and be sued, enter into contractual relationships and vote.
Court-ordered treatment or evaluation pursuant to this chapter is not a
determination of legal incompetency, except to the extent provided in section
36-512.
B.
A person who is or has been evaluated or treated in an agency for a mental
disorder shall not be discriminated against in any manner, including but not
limited to:
1. Seeking employment.
2. Resuming or continuing professional practice or previous
occupation.
3. Obtaining or retaining housing.
4. Obtaining or retaining licenses or permits, including but
not limited to, motor vehicle licenses, motor vehicle operators and chauffeurs
licenses and professional or occupational licenses.
C.
"Discrimination" for purposes of this section means any denial of
civil rights on the grounds of hospitalization or outpatient care and treatment
unrelated to a person's present capacity to meet the standards applicable to
all persons. Applications for positions, licenses and housing shall contain no
requests for information which encourage such discrimination.
D.
Upon discharge from any treatment or evaluation agency, the patient shall be
given written notice of the provisions of this section.
36-507. Patient's rights to privacy and
to personal possessions
Every
person undergoing evaluation or treatment pursuant to this chapter shall:
1. Have the right not to be fingerprinted.
2. Have the right not to be photographed without consent of
the person and his attorney or guardian, except that he may be photographed
upon admission to an agency for identification and administrative purposes of
the agency. All photographs shall be confidential and shall not be released by
the agency except pursuant to court order.
3. Have the right to examine the written treatment program
and the medical record, unless the attending physician determines that such an
examination is contraindicated. If the attending physician determines that such
an examination is contraindicated, this determination shall be noted in the
patient's medical record.
4. Have access to individual storage space for his private
use while undergoing evaluation or treatment.
5. Be permitted to wear his own clothing, to keep and use
his own personal possessions including his toilet articles and to keep and be
allowed to spend a reasonable sum of his own money for his own needs and
comfort. Notwithstanding the provisions of section 36-516, the director of the
agency may deny the patient's rights under this paragraph if necessary to
protect the safety of the patient or others. Such denial shall be based upon a
written determination and entered into the patient's clinical record and the
information therein shall be made available on request to the person, his
attorney or guardian.
36-508. Disposition of patient's
personal property
A.
When a patient is admitted on an inpatient basis to a mental health treatment
agency pursuant to section 36-540, the articles of personal property which
cannot be used by the patient at the institution shall be placed under the
control and management of the patient's guardian or conservator and, if none,
of the patient's spouse or next of kin.
B.
In the event the patient is without a guardian, conservator, spouse or next of
kin, or the spouse or next of kin refuses to take possession of the patient's
personal property that cannot be used by the patient at the mental health
treatment agency, the mental health treatment agency shall provide reasonable
facilities for the storage of the patient's personal property.
C.
Upon application by any interested person, the court shall enter an appropriate
order for the protection of the proposed patient's property where no other
alternatives exist to prevent the immediate loss or destruction of that
property.
36-509. Confidential
records
A.
All information and records obtained in the course of evaluation, examination
or treatment shall be kept confidential and not as public records, except as
the requirements of a hearing pursuant to this chapter may necessitate a
different procedure. Information and records may only be disclosed, pursuant to
rules established by the department, to:
1. Physicians and providers of health, mental health or
social and welfare services involved in caring for, treating or rehabilitating
the patient.
2. Individuals to whom the patient has given consent to have
information disclosed.
3. Persons legally representing the patient, and in such case,
the department's rules shall not delay complete disclosure.
4. Persons authorized by a court order.
5. Persons doing research or maintaining health statistics,
provided that the department establishes rules for the conduct of such research
as will ensure the anonymity of the patient.
6. The state department of corrections in cases where
prisoners confined to the state prison are patients in
the state hospital on authorized transfers either by voluntary admission or by
order of the court.
7. Governmental or law enforcement agencies if necessary to
secure the return of a patient who is on unauthorized absence from any agency
where the patient was undergoing evaluation and treatment.
8. Family members actively participating in the patient's
care, treatment or supervision. An agency or nonagency
treating professional may only release information relating to the person's
diagnosis, prognosis, need for hospitalization, anticipated length of stay,
discharge plan, medication, medication side effects
and short-term and long-term treatment goals.
9. A state agency that licenses health professionals
pursuant to title 32, chapter 13, 15, 17 or 19.1 and that requires these
records in the course of investigating complaints of professional negligence,
incompetence or lack of clinical judgment.
10. The department of education or school district of
residence of a person between three and twenty-two years of age for whom the
information is necessary in order to provide educational services required by
the individuals with disabilities education act (20 United States Code sections
1400 through 1415). The information provided is limited to evaluation and
treatment information that affects the educational programming and placement
decisions for the patient.
11. A governmental agency or a competent professional, as
defined in section 36-3701, in order to comply with chapter 37 of this title.
12. An agent appointed pursuant to chapter 32 of this title.
13. Human rights committees established pursuant to title
41, chapter 35. Any information released pursuant to this paragraph shall
comply with the requirements of section 41-3804 and applicable federal law and
shall be released without personally identifiable information unless the
personally identifiable information is required for the official purposes of
the human rights committee. Case information received by a human rights
committee shall be maintained as confidential. for the
purposes of this paragraph, "personally identifiable information"
includes name, address, date of birth, social security number, tribal
enrollment number, telephone or telefacsimile number,
driver license number, places of employment, school identification and military
identification number or any other distinguishing characteristic that tends to
identify a particular person.
14. The department of public safety by the court to comply
with the requirements of section 36-540, subsection N only.
B.
An agency or nonagency treating professional shall
release information pursuant to subsection A, paragraph 8 of this section only
after the treating professional or that person's designee interviews the person
undergoing treatment or evaluation to determine whether or not release is in
that person's best interests. A decision to release or withhold information is
subject to review pursuant to section 36-517.01. The treating agency shall
record the name of any person to whom any information is given.
36-510. Patient's compensation for work
If
a patient of a mental health treatment agency works, this work shall be in the
patient's interest. If the primary purpose of this work is to benefit the
mental health treatment agency or any agency of the state, the patient shall be
employed and paid in accordance with law. If the purpose of the work is
therapeutic, the patient may or may not be paid as circumstances indicate. This
therapeutic work shall be part of a planned program of treatment described in
the patient's record with the rationale for the work-treatment included. It
shall be periodically reviewed by the appropriate agency review procedures. The
term "work" does not mean matters of personal housekeeping or
personal maintenance.
36-511. Quality of treatment
A.
Subject to his right to refuse psychiatric and medical treatment pursuant to
sections 36-512 and 36-513 and pursuant to rules of the division every person
undergoing evaluation or treatment pursuant to this chapter shall receive
physical and psychiatric care and treatment, delivered in a manner that allows
the person's family members or guardian to participate in his care and
treatment when appropriate, for the full period he is detained. The agency
providing care and treatment shall keep a clinical record for each person which details all medical and psychiatric evaluations and
all care and treatment received by the person.
B.
An agency administering the care and treatment shall provide and make available
to the guardian, if one exists, upon request:
1. A written treatment program based on the individual needs
of the person.
2. Careful and periodic reexaminations of each person by
appropriate professional persons, including a physician. Reexaminations shall
be made once each ninety days and the results shall be a part of the person's
medical record.
3. A full physical examination once a year.
4. Adequate medical treatment in the light of present
medical knowledge in accordance with the results of these examinations.
C.
An agency administering inpatient care and treatment, in conjunction with the
community treatment agency, shall, prior to the release of a patient, prepare a
plan for the patient's care after release including arrangements for a place to
live, and an adequate program for necessary treatment and maintenance, and
provide the plan to the patient's guardian if one exists. The community
treatment agency shall make a good faith effort to initiate treatment with a
patient released from an inpatient facility.
36-512. Emergency medical care
A
person undergoing evaluation or treatment has a right to refuse any and all
medical treatment unless ordered by the court, except that when, in the written
opinion of the attending physician, a true medical emergency exists and medical
care and treatment including surgical procedures are necessary to save the
life, physical health, eyesight, hearing or member of the person, the medical
director of the agency may give consent to such medical care and treatment if
time will not permit the obtaining of appropriate judicial authority. The
patient's guardian, if one exists, shall be notified by the medical director of
the giving of emergency medical care immediately.
36-513. Seclusion; restraint; treatment
A
person undergoing evaluation pursuant to article 4 of this chapter shall not be
treated for his mental disorder unless he consents to such treatment, except
that seclusion and mechanical or pharmacological restraints may be employed in
the case of emergency for the safety of the person or others. A person
undergoing treatment pursuant to article 5 of this chapter shall not be
subjected to seclusion or mechanical or pharmacological restraints except in
case of emergency for the safety of the person or others or as a part of a
written plan for the treatment of the patient, prepared by staff members
responsible for his care and pursuant to regulations promulgated by the
department. All instances of seclusion or restraint shall be properly recorded
in the patient's medical record and the use shall be governed by written
procedures of the agency caring for the patient and are subject to the rules
and regulations of the department.
36-514. Visitation; telephone;
correspondence; religious freedom
Every
person detained for evaluation or treatment pursuant to this chapter shall have
the following additional rights:
1. To be visited by the person's personal physician,
guardian, agent appointed pursuant to chapter 32 of this title, attorney and
clergyman or any other person, subject to reasonable limitations as the
individual in charge of the agency may direct.
2. To have reasonable access to telephones between the hours
of
3. To be furnished with reasonable amounts of stationery and
postage and to be permitted to correspond by mail without censorship with any
person.
4. To enjoy religious freedom and the right to continue the
practice of the person's religion in accordance with its tenets during the
detainment, except that this right may not interfere with the operation of the
agency.
36-515. Limitation of liability; false
application; classification
A.
Any person acting in good faith upon either actual knowledge or reliable
information who makes application for evaluation or treatment of another person
pursuant to this chapter is not subject to civil or criminal liability for such
act.
B.
Any person who knowingly makes a false statement of a material fact with the
intent to cause another to be confined under this chapter is guilty of a class
1 misdemeanor.
36-516. Violation of person's rights
Any
knowing violation of a person's rights under this article shall give him a
cause of action for the greater of either one thousand dollars or three times
the actual amount of damages. It is not a prerequisite to this action that the plaintiff suffer or be threatened with actual damages.
36-517. Cruelty to mentally disordered
person; classification
A
person guilty of any harsh or cruel treatment of, or any neglect of duty toward
a mentally disordered person is guilty of a class 2 misdemeanor.
36-517.01. Review of decisions regarding
release of treatment information; notice; appeal; immunity
A. An agency providing evaluation or treatment shall, on
request of a person undergoing evaluation or treatment, a member of his family
or his guardian, review the treating professional's decision to release or
withhold information requested pursuant to section 36-504, subsection B or
section 36-509, subsection A, paragraph 8. The agency shall inform a person
whose request is denied of his right to a review when it notifies that person
of its decision. The agency director or his designee shall conduct the review
within five business days after the request for review is made. The review
shall include an interview of the person undergoing evaluation or treatment.
The agency shall make a decision to uphold or reverse the treating
professional's decision within five business days after initiating the review.
The agency shall bear the costs of conducting the review. Agency review
pursuant to this section does not apply to a decision to release or withhold
information made by a nonagency treating
professional.
B. A final agency decision made pursuant to subsection A of
this section or a decision to release or withhold information made by a nonagency treating professional is subject to judicial
review by filing a petition in the superior court within five business days
after the agency or nonagency treating professional
issues its decision. The court shall hold a hearing on the petition within five
business days after the petition is filed. The agency or nonagency
treating professional shall not release any treatment information during the
period an appeal may be filed or is pending.
C. An agency or nonagency treating
professional that makes a decision to release or withhold treatment information
in good faith pursuant to section 36-504, subsection B or section 36-509,
subsection A, paragraph 8 is not subject to civil liability for this decision.
36-517.02. Limitation of liability;
exception; discharge of duty; immunity for disclosure
A.
There shall be no cause of action against a mental health provider nor shall
legal liability be imposed for breaching a duty to prevent harm to a person
caused by a patient, unless both of the following occur:
1. The patient has communicated to the mental health
provider an explicit threat of imminent serious physical harm or death to a
clearly identified or identifiable victim or victims, and the patient has the
apparent intent and ability to carry out such threat.
2. The mental health provider fails to take reasonable
precautions.
B.
Any duty owed by a mental health provider to take reasonable precautions to
prevent harm threatened by a patient is discharged by all of the following:
1. Communicating when possible the threat to all
identifiable victims.
2. Notifying a law enforcement agency in the vicinity where
the patient or any potential victim resides.
3. Taking reasonable steps to initiate proceedings for
voluntary or involuntary hospitalization, if appropriate.
4. Taking any other precautions that a reasonable and
prudent mental health provider would take under the circumstances.
C.
Whenever a patient has explicitly threatened to cause serious harm to a person
or whenever a mental health provider reasonably concludes that a patient is
likely to do so, and the mental health provider, for the purpose of reducing
the risk of harm, discloses a confidential communication made by or relating to
the patient, the mental health provider shall be immune from liability
resulting from such disclosure.
D.
This section shall not limit and shall be in addition to any other statutory immunitites from liability of mental health providers or
mental health treatment agencies as otherwise provided by law.
ARTICLE
3 – VOLUNTARY ADMISSIONS
36-518. Application for voluntary
admission; admission to agency; minors; transportation
A.
Pursuant to rules of the division, any person who is eighteen years of age or
older and who manifests the capacity to give and gives informed consent may be
hospitalized for evaluation, care and treatment by voluntarily making written
application on a prescribed form. The agency to which the person applies may
accept and admit the person if the medical director of the agency or the
admitting officer believes that the person needs evaluation or will benefit
from care and treatment of a mental disorder or other personality disorder or
emotional condition in the agency. Informed consent as defined in section
36-501 may be given by the person's guardian pursuant to section 14-5312.01 or
agent appointed pursuant to chapter 32, article 6 of this title if that agent
was granted the authority to do this by the mental health care power of
attorney. If an agent gives informed consent as defined in section 36-501, an
evaluation shall be conducted pursuant to section 36-3284.
B.
Notwithstanding subsection C of this section, and except in the case of an
emergency admission, a minor who is in the custody of the juvenile court, who
is a ward of the juvenile court as a dependent child or who is adjudicated
delinquent or incorrigible shall not be admitted for evaluation or treatment
unless approved by the court on application filed by an entity as provided in
section 8-272 or 8-273.
C.
A minor may be admitted to a mental health agency as defined in section 8-201
by the written application of the parent, guardian or custodian of the minor,
or a person designated by the court if the parent, guardian or custodian is
without monetary resources to file an application or could not be located after
reasonable efforts and the minor is under the supervision of an adult probation
department after the following has occurred:
1. A psychiatric investigation by the medical director of
the mental health agency that carefully probes the child's social,
psychological and developmental background.
2. An interview with the child by the medical director of
the mental health agency.
3. The medical director has explained to the child and the
child's parent, guardian or custodian or to the person designated by the court
pursuant to this subsection the program of evaluation or treatment contemplated
and its probable length.
4. The medical director has explored and considered
available alternatives to inpatient treatment or evaluation.
5. The medical director of a mental health agency has
determined whether the child needs an inpatient evaluation or will benefit from
care and treatment of a mental disorder or other personality disorder or
emotional condition in the agency and whether the evaluation or treatment goals
can be accomplished in a less restrictive setting. A record of the reasons for
this determination shall be made.
D.
If the child's situation does not satisfy the requirements of subsection C of
this section, the application by the parent, guardian or custodian shall be
refused.
E.
All emergency admissions for mental health evaluation or treatment of children
shall be made pursuant to the standards and procedures in article 4 of this
chapter.
F.
If a parent, guardian or custodian is unavailable after a reasonable effort has
been made to locate the parent, guardian or custodian, the court shall appoint
a guardian for the child pursuant to title 14, chapter 5.
G.
The board of supervisors of the county of residence of a person who has
submitted an application for admission to the state hospital pursuant to
subsection A of this section shall provide transportation to the state hospital
for the person if it appears that the person is eligible for voluntary
admission to the state hospital after consultation between the state hospital
and the evaluation or screening agency. The county is responsible for that
expense to the extent the expense is not covered by any third party payor.
36-518.01. Case review of voluntary
admission of minor
A.
The medical director of a mental health agency shall review the case progress
of all minors admitted voluntarily to the agency at least every ten days. The
review shall establish the appropriateness of continued placement in a mental
health agency according to progress in care and the expected benefits of
continued inpatient care and treatment. The review shall include an interview
with the minor.
B.
The medical director shall state in writing in the minor's clinical record the
reasons for continued inpatient care and the objectives desired. The records of
the review shall be available to the parent or guardian on request. When the
child is a ward of the juvenile court or in custody pursuant to title 8, the
case review record shall be forwarded promptly to the juvenile court and the
court-appointed custodian of the child.
C.
For purposes of this section and section 36-518, "mental health
agency" and "medical director of a mental health agency" are as
defined in section 8-201.
36-519. Discharge of voluntary patients
A.
The medical director of the agency shall discharge any patient admitted
voluntarily who has recovered or who is no longer benefiting from the evaluation,
care or treatment available, except as provided in subsection B of this
section.
B.
Upon written request by a patient admitted pursuant to section 36-518,
subsection A or by the parent, guardian or custodian of a patient admitted
pursuant to section 36-518, subsection C, the patient shall be given a
discharge within twenty-four hours after the request, excluding weekends or
holidays unless the medical director of the agency has proceeded pursuant to
section 36-531, subsections B and C and section 36-533. The costs of such
proceedings shall be a charge against the county of the patient's residence.
C.
If the medical director of the agency finds that a patient admitted voluntarily
is gravely disabled and requires the service of a guardian or conservator or
both for the protection of health and property, he shall proceed pursuant to
section 36-531, subsections B and C and section 36-533 unless it is appropriate
to discharge the patient to suitable alternative arrangements for care,
treatment and protection.
ARTICLE
4 – COURT-ORDERED EVALUATION
36-520. Application for evaluation;
definition
A.
Any responsible individual may apply for a court-ordered evaluation of a person
who is alleged to be, as a result of a mental disorder, a danger to self or to
others, persistently or acutely disabled, or gravely disabled and who is
unwilling or unable to undergo a voluntary evaluation. The application shall be
made in the prescribed form and manner as adopted by the deputy director.
B.
The application for evaluation shall include the following data:
1. The name, and address if known,
of the proposed patient for whom evaluation is applied.
2. The age, date of birth, sex, race, marital status,
occupation, social security number, present location, dates and places of previous
hospitalizations, names and addresses of the guardian, spouse, next of kin and
significant other persons and other data that the deputy director may require
on the form to whatever extent that this data is known and is applicable to the
proposed patient.
3. The name, address and relationship of the person who is
applying for the evaluation.
4. A statement that the proposed patient is believed to be,
as a result of a mental disorder, a danger to self or to others, persistently
or acutely disabled or gravely disabled and the facts on which this statement
is based.
5. A statement that the applicant believes the proposed
patient is in need of supervision, care and treatment and the facts on which
this statement is based.
C.
The application shall be signed and notarized.
D.
The screening agency shall offer assistance to the applicant in preparation of
the application. Upon receipt of the application, the screening agency shall
act as prescribed in section 36-521 within forty-eight hours of the filing of
the application excluding weekends and holidays. If the application is not
acted upon within forty-eight hours, the reasons for not acting promptly shall
be reviewed by the director of the screening agency or the director's designee.
E.
If the applicant for the court-ordered evaluation presents the person to be
evaluated at the screening agency, the agency shall conduct a prepetition screening examination. Except in the case of an
emergency evaluation, the person to be evaluated shall not be detained or
forced to undergo prepetition screening against the
person's will.
F.
If the applicant for the court-ordered evaluation does not present the person
to be evaluated at the screening agency, the agency shall conduct the prepetition screening at the home of the person to be
evaluated or any other place the person to be evaluated is found. If prepetition screening is not possible, the screening agency
shall proceed as in section 36-521, subsection B.
G.
If a person is being treated by prayer or spiritual means alone in accordance
with the tenets and practices of a recognized church or religious denomination
by a duly accredited practitioner of that church or denomination, such person
may not be ordered evaluated, detained or involuntarily treated unless the
court has determined that the person is, as a result of mental disorder, a
danger to others or to self.
H.
Court-ordered evaluation or treatment pursuant to this chapter shall not
operate to change the legal residence of a patient.
I.
If the application is not acted upon because it has been determined that the
proposed patient does not need an evaluation, the agency after a period of six
months shall destroy the application and any other evidence of the application.
J.
For the purposes of this section, "person" includes a person who:
1. Is under eighteen years of age.
2. Has been transferred to the criminal division of the
superior court pursuant to section 8-327 or who has been charged with an
offense pursuant to section 13-501.
3. Is under the supervision of an adult probation
department.
36-521. Preparation of petition for
court-ordered evaluation; procedures for prepetition
screening
A.
Upon receiving the application for evaluation, the screening agency shall,
prior to filing a petition for court-ordered evaluation, provide prepetition screening within forty-eight hours excluding
weekends and holidays when possible to determine whether there is reasonable
cause to believe the allegations of the applicant for the court-ordered
evaluation, whether the person will voluntarily receive evaluation at a
scheduled time and place and whether he is persistently or acutely disabled,
gravely disabled or likely to present a danger to self or others until the
voluntary evaluation.
B.
After prepetition screening has been completed, the
screening agency shall prepare a report of opinions and conclusions. If prepetition screening is not possible, the screening agency
shall prepare a report giving reasons why the screening was not possible and
including opinions and conclusions of staff members who attempted to conduct prepetition screening or otherwise investigated the matter.
C.
If the prepetition screening report indicates that
there exists no reasonable cause to believe the allegations of the applicant
for the court-ordered evaluation, it shall be reviewed by the medical director
of the screening agency or his designee.
D.
If, based upon the allegations of the applicant for the court-ordered
evaluation and the prepetition screening report or
other information obtained while attempting to conduct a prepetition
screening, the agency determines that there is reasonable cause to believe that
the proposed patient is, as a result of mental disorder, a danger to self or to
others, is persistently or acutely disabled or is gravely disabled and that the
proposed patient is unable or unwilling to voluntarily receive evaluation or is
likely to present a danger to self or to others, is gravely disabled or will
further deteriorate before receiving a voluntary evaluation, it shall prepare a
petition for court-ordered evaluation and shall file the petition, which shall
be signed by the person who prepared the petition unless the county attorney
performs these functions. If the agency determines that there is reasonable
cause to believe that the person is in such a condition that without immediate
hospitalization he is likely to harm himself or others, it shall take all
reasonable steps to procure such hospitalization on an emergency basis.
E.
The agency may contact the county attorney in order to obtain his assistance in
preparing the petition for court-ordered evaluation, and the agency may request
the advice and judgment of the county attorney in reaching a decision as to
whether the court-ordered evaluation is justified.
F.
The county attorney may prepare or sign or file the petition if a court has
ordered the county attorney to prepare the petition.
G.
If a petition for court-ordered evaluation alleges danger to others as
described in section 36-501, the screening agency shall, prior to filing such
petition, contact the county attorney for a review of the petition. The county
attorney shall examine the petition and make one of the following written
recommendations:
1. That a criminal investigation is warranted.
2. That the screening agency shall file the petition.
3. That no further proceedings are warranted. The screening
agency shall consider such recommendation in determining whether a
court-ordered evaluation is justified and shall include such recommendation
with the petition if it decides to file the petition with the court.
H.
The petition shall be made in the form and manner prescribed by the deputy
director.
36-522. Voluntary evaluation
A.
If the petition for court-ordered evaluation is not filed because it has been
determined that the proposed patient will voluntarily receive an evaluation and
is unlikely to present a danger to self or others until the voluntary
evaluation, the evaluation agency provided for by the county, or selected by
the proposed patient, shall be immediately notified and shall provide
evaluation of the proposed patient at a scheduled time and place within five
days of the notice. The voluntary evaluation may be on an inpatient or
outpatient basis.
B.
Voluntary inpatient evaluation is subject to the provisions of article 3 of
this chapter.
C.
Voluntary outpatient evaluation shall conform to the requirements of section
36-530, subsection D and section 36-531, subsections B, C and D and shall
proceed only after the person to be evaluated has given consent to be evaluated
by signing a form prescribed by the deputy director which includes information
to the proposed patient that the patient-physician privilege does not apply and
that the evaluation may result in a petition for the person to undergo
court-ordered treatment or for guardianship. Voluntary evaluation may be
carried out only if chosen by the patient during the course of a prepetition screening after application for evaluation has
been made.
36-523. Petition for evaluation
A.
The petition for evaluation shall contain the following:
1. The name, address and interest in the case of the
individual who applied for the petition.
2. The name, and address if known,
of the proposed patient for whom evaluation is petitioned.
3. The present whereabouts of the proposed patient, if known.
4. A statement alleging that there is reasonable cause to
believe that the proposed patient has a mental disorder and is as a result a
danger to self or others, is persistently or acutely disabled or is gravely
disabled and is unwilling or unable to undergo voluntary evaluation.
5. A summary of the facts which support the allegations that
the proposed patient is dangerous, is persistently or
acutely disabled or is gravely disabled and unwilling or unable to be
voluntarily evaluated including the facts which brought the proposed patient to
the screening agency's attention.
6. Other information that the deputy director, with the
approval of the director, by rule or the court by rule or order may require.
B.
The petition shall request that the court issue an order requiring that the
proposed patient be given an evaluation and shall advise the court of both of
the following:
1. That the opinion of the petitioner is either that the
proposed patient is or is not in such a condition that without immediate or continuing
hospitalization he is likely to suffer serious physical harm or further
deterioration or inflict serious physical harm upon another person.
2. If the opinion of the petitioner is that the proposed
patient is not in the condition described in paragraph 1 of this subsection,
that the opinion of the petitioner is either that the evaluation should or
should not take place on an outpatient basis.
C.
The petition for evaluation shall be accompanied by the application for
evaluation, by the recommendation of the county attorney pursuant to section
36-521 and by a prepetition screening report, unless
such documents have not been prepared under a provision of law or in accordance
with an order of the court. The petition for evaluation shall also be accompanied
by a copy of the application for emergency admission if one exists.
D.
A petition and other forms required in a court may be filed only by the
screening agency which has prepared the petition.
E.
If the petition is not filed because it has been determined that the person
does not need an evaluation, the agency after a period of six months shall
destroy the petition and the various reports annexed to the petition as
required by this section.
36-524. Application for emergency
admission for evaluation; requirements
A.
A written application for emergency admission shall be made to an evaluation
agency before a person may be hospitalized in the agency.
B.
The application for emergency admission shall be made by a person with
knowledge of the facts requiring emergency admission. The applicant may be a
relative or friend of the person, a peace officer, the admitting officer or
another responsible person.
C.
The application shall be upon a prescribed form and shall include the
following:
1. A statement by the applicant that he believes on the
basis of personal observation that the person is, as a result of a mental
disorder, a danger to self or others, and that during the time necessary to
complete the prepetition screening procedures set
forth in sections 36-520 and 36-521 the person is likely without immediate
hospitalization to suffer serious physical harm or serious illness or is likely
to inflict serious physical harm upon another person.
2. The specific nature of the danger.
3. A summary of the observations upon which the statement of
danger is based.
4. The signature of the applicant.
D.
A telephonic application may be made no more than twenty-four hours prior to a
written application. A telephonic application shall be made by or in the
presence of a peace officer unless the application is made by a health care
provider who is licensed pursuant to title 32, chapter 13, 15, 17 or 19.1 and
who is directly involved with the care of a patient who is in a health care
facility licensed in this state. For an application made by a doctor or a
nurse, the original signature of the applicant on a facsimile copy of the
application is acceptable, does not have to be notarized and may be submitted
as the written application.
E.
If the person to be admitted is not already present at the evaluation agency
and if the admitting officer, based upon review of the written or telephonic
application and conversation with the applicant and peace officer, has
reasonable cause to believe that an emergency examination is necessary, the admitting
officer may advise the peace officer, that sufficient grounds exist to take the
person into custody and to transport the person to the evaluation agency. The
admitting officer shall not be held civilly liable for any acts committed by a
person whom the admitting officer did not advise be taken into custody if the
admitting officer has in good faith followed the requirements of this section.
36-525. Apprehension and transportation
by peace officers; immunity
A.
A peace officer shall on the advice of the admitting officer of the evaluation
agency pursuant to section 36-524, subsection E apprehend and transport a
person to an evaluation agency.
B.
In those instances in which the procedures set forth in section 36-524 are not
available, a peace officer may take into custody any individual he has probable
cause to believe, based on his own observations, is, as a result of mental
disorder, a danger to self or others, and that during the time necessary to
complete the prepetition screening procedures set forth
in sections 36-520 and 36-521 the person is likely without immediate
hospitalization to suffer serious physical harm or serious illness or to
inflict serious physical harm on another person. The peace officer shall
transport the person to a screening agency unless the person's condition or the
agency's location or hours makes such transportation impractical, in which
event the person shall be transported to an evaluation agency. A peace officer
is not held civilly liable for any acts committed by a person whom the peace
officer has not taken into custody pursuant to this section.
C.
If apprehension takes place on or about the premises of the apprehended person,
the officer shall take reasonable precautions to safeguard the premises and the
property thereon, unless such property and premises are in the possession of a
responsible relative or guardian.
D.
A peace officer who makes a good faith effort to follow the requirements of
this section is not subject to civil liability.
36-526. Emergency admission; examination;
petition for court-ordered evaluation
A.
Upon presentation of the person for emergency admission, an admitting officer
of an evaluation agency shall perform an examination of the person and may
admit the person to the agency as an emergency patient if the admitting officer
finds, as a result of his examination and investigation of the application for
emergency admission, that there is reasonable cause to believe that the person,
as a result of a mental disorder, is a danger to self or others, and that
during the time necessary to complete the prepetition
screening procedures set forth in sections 36-520 and 36-521 the person is
likely without immediate hospitalization to suffer serious physical harm or
serious illness or to inflict serious physical harm on another person. In the
event a person is hospitalized pursuant to this section, the admitting officer
may notify a screening agency and seek its assistance or guidance in developing
alternatives to involuntary confinement and in counseling the person and his
family.
B.
On the same or succeeding court day, the medical director in charge of the
agency shall file a petition for a court-ordered evaluation, unless the person
has been discharged or has become a voluntary patient. The petition need not
comply with the provisions of this chapter requiring preparation and filing of
a prepetition screening report but shall meet all
other requirements and shall seek an appropriate order pursuant to section
36-529.
36-527. Discharge and release; relief
from civil liability
A.
A person taken into custody for emergency admission may not be detained longer
than twenty-four hours excluding weekends and holidays following such detention
unless a petition for court-ordered evaluation is filed.
B.
A person admitted for emergency evaluation may be released at any time if, in
the opinion of the medical director in charge of the evaluation agency, release
is appropriate. The medical director shall not be held civilly liable for any
acts committed by a released patient if the medical director has in good faith
followed the requirements of this article. The patient may continue care and
treatment in the agency if he signs a voluntary application.
36-528. Emergency patients; duties of
agency; notification of family member; right to counsel
A.
A person detained under emergency detention shall be offered treatment for his
mental disorder to which he may consent. The person shall not be treated for
his mental disorder without his express consent, except that seclusion and mechanical
or pharmacological restraints may be employed as emergency measures for the
safety of the person or others pursuant to section 36-513.
B.
At the time a person is taken into custody for emergency evaluation, the
medical director in charge of the evaluation agency shall, subject to the
provisions of section 36-504, notify the person's guardian or, if none, a
member of the family other than a person who has made application for emergency
evaluation, if known, of the person's presence at the agency.
C.
At the earliest time possible during the evaluation, the agency shall inquire
into the need to safeguard and preserve the person's personal property or
premises. If no responsible relative or guardian is in possession of the
property or premises it shall proceed pursuant to the provisions of section
36-508, subsection C.
D.
The person detained shall be informed of his rights as stated in this section
and in article 2 of this chapter, including the right to consult an attorney.
He shall be advised that if he cannot employ an attorney, the court will
appoint one for him. The person shall be advised that if a petition for
evaluation is filed, the court will appoint the person an attorney to consult
with and, if he cannot employ his own counsel, to represent him.
36-529. Order for evaluation; order for
detention; hearing
A.
If, from the review of the petition for evaluation, the court does not
determine that the proposed patient is likely to present a danger to self or
others or further deteriorate prior to his hearing on court-ordered treatment,
but determines that there is reasonable cause to believe that the proposed
patient is, as a result of a mental disorder, a danger to self or others, is
persistently or acutely disabled or is gravely disabled, the court shall issue
an order directing the proposed patient to submit to an evaluation at a
designated time and place, specifying that the evaluation will take place on an
inpatient or an outpatient basis. The court may also order that if the person
does not or cannot so submit, that he be taken into custody by a police officer
and delivered to an evaluation agency. If the court makes such a conditional
order, it shall also make a conditional appointment of counsel for the person
to become effective when and if the person is taken into custody pursuant to
this section.
B.
If, from review of the petition for evaluation, there is reasonable cause to
believe that the proposed patient is, as a result of a mental disorder, a
danger to self or others, is persistently or acutely disabled or is gravely
disabled and that the person requires immediate or continued hospitalization
prior to his hearing on court-ordered treatment, the court shall order the
proposed patient taken into custody and evaluated at an evaluation agency. The
court shall promptly appoint counsel for the proposed patient. If an intercounty agreement authorizes the same, the court may
order that the evaluation be conducted in another county, and the superior
court in the county where the evaluation is conducted shall have concurrent
jurisdiction to make appropriate orders concerning the proposed patient.
C.
If the person is not taken into custody or if the evaluation pursuant to the
order of the court under subsection A or B is not initiated within fourteen days
from the date of the order, the order and petition for evaluation shall expire.
D.
If the person is involuntarily hospitalized, the person shall be informed by
his appointed attorney of his rights to a hearing to determine whether he
should be involuntarily hospitalized for evaluation and to be represented at
the hearing by an attorney. If the patient requests a hearing to determine
whether he should be involuntarily hospitalized during evaluation, the court
shall schedule a hearing at its first opportunity.
36-530. Evaluation and treatment
A.
A person admitted to an evaluation agency shall receive an evaluation as soon
as possible after the court's order for evaluation and, subject to the
provisions of sections 36-512 and 36-513 concerning the person's right to
refuse treatment, receive care and treatment as required by his condition for
the full period that he is hospitalized. A clinical record shall be kept for
each person which details all medical and psychiatric evaluations and all care
and treatment received by the person.
B.
A person receiving an evaluation on an inpatient basis will remain in the
facility during the evaluation, which shall be completed in less than
seventy-two hours.
C.
A person being evaluated on an outpatient basis will not remain in the facility
overnight but will be examined during the usual outpatient working hours of the
facility on a schedule of appointments. The evaluation will be completed not
later than the fourth day after the first appointment, excluding Saturdays, Sundays
and holidays.
D.
If a person who has been directed by court order to appear for evaluation does
not appear, or in the case of an outpatient evaluation does not complete the
appointments scheduled, the evaluation agency shall notify the court and the
person's guardian, if any, of the known facts and circumstances and, if
appropriate, request that the court order the patient taken into custody for
evaluation on an inpatient basis.
36-531. Evaluation; possible
dispositions; release
A.
A person being evaluated on an inpatient basis in an evaluation agency shall be
released if, in the opinion of the medical director of the agency, further
evaluation is not appropriate unless the person makes application for further
care and treatment on a voluntary basis.
B.
If it is determined upon an evaluation of the patient's condition that he is,
as a result of a mental disorder, a danger to self or to others, is
persistently or acutely disabled or is gravely disabled, the medical director
in charge of the agency which provided the evaluation shall, unless the person
makes application for further care and treatment on a voluntary basis, prepare,
sign and file a petition for court-ordered treatment unless the county attorney
performs the functions of preparing, signing or filing the petition as provided
in subsection C of this section.
C.
The agency may contact the county attorney to obtain his assistance in
preparing the petition for court-ordered treatment, and the agency may request
the advice and judgment of the county attorney in reaching a decision as to
whether court-ordered treatment is justified.
D.
A person being evaluated on an inpatient basis in an evaluation agency shall be
released within seventy-two hours, excluding weekends and holidays, from the
time that he is hospitalized pursuant to a court order for evaluation, unless
the person makes application for further care and treatment on a voluntary
basis or unless a petition for court-ordered treatment has been filed pursuant
to subsection B of this section.
E.
The department of health services may conduct jointly with a school district,
directly or indirectly, an educational evaluation pursuant to sections 15-765
and 15-766 for nonadjudicated youth. The evaluation
information may be shared by and among authorized personnel employed by the
department of health services and the department of education, or authorized
personnel from the local education agency, for purposes of ensuring the
provision of special education and related services as required by the individuals
with disabilities education act (20 United States Code sections 1400 through
1415).
ARTICLE
5 – COURT-ORDERED TREATMENT
36-533. Petition for treatment
A.
The petition for court-ordered treatment shall allege:
1. That the patient is in need of a period of treatment
because the patient, as a result of mental disorder, is a danger to self or to
others, is persistently or acutely disabled or is gravely disabled.
2. The treatment alternatives which are appropriate or
available.
3. That the patient is unwilling to accept or incapable of
accepting treatment voluntarily.
B.
The petition shall be accompanied by the affidavits of the two physicians who
conducted the examinations during the evaluation period and by the affidavit of
the applicant for the evaluation, if any. The affidavits of the physicians
shall describe in detail the behavior which indicates that the person, as a
result of mental disorder, is a danger to self or to others, is persistently or
acutely disabled or is gravely disabled and shall be based upon the physician's
examination of the patient and the physician's study of information about the
patient. A summary of the facts which support the allegations of the petition
shall be included.
C.
The petition shall request the court to issue an order requiring the person to
undergo a period of treatment.
D.
In cases of grave disability the petition shall also include:
1. A statement that in the opinion of the petitioner the
gravely disabled person does or does not require guardianship or conservatorship, or both, under the provisions of title 14
and the reasons on which the statement is based.
2. A request that the court order an independent
investigation and report for the court if in the opinion of the petitioner the
person does require guardianship or conservatorship,
or both.
3. A statement that in the opinion of the petitioner the
gravely disabled person does or does not require temporary guardianship or conservatorship, or both, and the reasons on which the
statement is based.
4. A request that the court appoint a temporary guardian or
conservator, or both, if in the opinion of the petitioner the person does
require temporary guardianship or conservatorship, or
both.
E.
A copy of the petition in cases of grave disability shall be mailed to the public
fiduciary in the county of the patient's residence or in which the patient was
found before evaluation and to any person nominated as guardian or conservator.
F.
A copy of all petitions shall be mailed to the superintendent of the
36-534. Change to voluntary status;
discharge
If,
after a petition for court-ordered treatment has been filed and prior to the
hearing, the medical director of the agency finds that it is more appropriate
to discharge the patient or to admit the proposed patient on a voluntary basis,
the medical director shall, after receiving approval from the court, either
discharge the patient or admit the patient for further treatment on a voluntary
basis.
36-535. Detention of proposed patient;
time of hearing; released patient; intervention by division
A.
If, upon the filing of a petition for court-ordered treatment, the patient is
not then detained in an agency, the court shall order the detention of the
patient in the agency which conducted the evaluation if the court determines
that the patient is likely to present a danger to self or others before the
conclusion of the hearing or is not likely to appear at the hearing on the
petition if not detained. The court shall issue such orders as are necessary to
provide for the apprehension, transportation and detention of the proposed
patient. The court shall appoint counsel for the proposed patient if one has
not been previously appointed.
B.
The court shall either release the proposed patient or order the hearing to be
held within six days after the petition is filed, unless the proposed patient,
upon consultation with his attorney, determines that it would be in his best
interest to request a continuance which may be for a maximum of thirty days.
C.
If after reviewing the petition with its attached material and other evidence
at hand the court finds that the patient is not, as a result of mental
disorder, a danger to self or others, persistently or acutely disabled or
gravely disabled, he shall be released.
D.
The division, acting on behalf of the state hospital, may intervene as a party
to the proceedings upon any petition for court-ordered treatment and may appear
as a party at the hearing on the petition by filing a written notice of
intervention with the clerk of the superior court in the county in which the
petition was filed, at any time before either the original time set for hearing
or the time to which the hearing is continued. The intervenor
at the hearing may cross-examine any witnesses presented by other parties
pursuant to section 36-539, may subpoena and present witnesses of its own,
including physicians, and may present other evidence. The intervenor
may, upon stipulation with all other parties or upon order of the court, cause
physicians to personally conduct mental status examinations of the proposed
patient and to testify as to their opinions concerning whether the proposed
patient is, as a result of mental disorder, a danger to self or to others, is
persistently or acutely disabled or is gravely disabled and as to whether the
proposed patient requires treatment. This subsection applies in addition to all
rules of evidence, the
36-536. Service of petition; counsel
for proposed patient; notice
A.
At least seventy-two hours before the court conducts the hearing on the
petition for court-ordered treatment, a copy of the petition and affidavits in
support thereof and the notice of the hearing shall be served upon the patient,
who shall be informed of the purpose of the hearing and shall be advised of his
right to consult counsel. If the patient has not employed counsel, counsel
shall be appointed by the court at least three days before the hearing. If at
the time of the petition for evaluation, the patient had counsel, the same
attorney should, if possible, be appointed to represent the patient at the
hearing for court-ordered treatment.
B.
The notice provisions of this section cannot be waived.
C.
The notice of the hearing shall fix the time and place for the hearing, which
shall be held in the courtroom or other place within the county which the court
may designate to insure humane treatment with due regard to the comfort and
safety of the patient and others.
36-537. Duties of counsel
A.
The medical director of the agency which conducted the evaluation shall, at
least seventy-two hours prior to the hearing, make available to the patient's
attorney copies of the petition for evaluation, prepetition
screening report, evaluation report, the patient's medical records for the
current admission and a list of alternatives to court-ordered treatment which
are used in similar cases with an explanation of why they are not appropriate
or available.
B.
The patient's attorney shall, for all hearings whether for evaluation or
treatment, fulfill the following minimal duties:
1. Within twenty-four hours of appointment, conduct an
interview of the patient. The attorney shall explain to the patient his rights
pending court-ordered treatment, the procedures leading to court-ordered
treatment, the standards for court-ordered treatment and the alternative of
becoming a voluntary patient. If the attorney is appointed, he shall also
explain that the patient can obtain his own counsel at his own expense and
that, if it is later determined that the person is not indigent, the person
will be responsible for the fees of the appointed attorney for services
rendered after the initial attorney-client conference.
2. At least twenty-four hours prior to the hearing, review
the petition for evaluation, prepetition screening
report, evaluation report, petition for treatment, the patient's medical
records and the list of alternatives to court-ordered treatment.
3. At least twenty-four hours prior to the hearing,
interview the petitioner, if available, and his supporting witnesses, if known
and available.
4. At least twenty-four hours prior to the hearing,
interview the physicians who will testify at the hearing, if available, and
investigate the possibility of alternatives to court-ordered treatment. Failure
of the attorney to fulfill at least the duties prescribed by paragraphs 1
through 4 of this subsection may be punished as contempt of court.
36-538. Independent evaluator
At
all hearings conducted pursuant to sections 36-539 and 36-546, a person has the
right to have an analysis of his mental condition by an independent evaluator.
If the person is unable to afford such evaluation, the court shall appoint an
independent evaluator acceptable to the patient from a list of physicians and
psychologists who are willing to accept court appointed evaluations.
36-539. Conduct of hearing; record;
transcript
A.
The medical director of the agency shall issue instructions to the physicians
treating the proposed patient to take all reasonable precautions to insure that
at the time of the hearing the proposed patient shall not be so under the
influence of or so suffer the effects of drugs, medication or other treatment
as to be hampered in preparing for or participating in the hearing. The court at
the time of the hearing shall be presented a record of all drugs, medication or
other treatment which the person has received during the seventy-two hours
immediately prior to the hearing.
B.
The patient and his attorney shall be present at all hearings and the patient's
attorney may subpoena and cross-examine witnesses and present evidence. The
evidence presented by the petitioner or the patient shall include the testimony
of two or more witnesses acquainted with the patient at the time of the alleged
mental disorder and testimony of the two physicians who performed examinations
in the evaluation of the patient. The physicians shall testify as to their
personal examination of the patient. They shall also testify as to their
opinions concerning whether the patient is, as a result of mental disorder, a
danger to self or to others, is persistently or acutely disabled or is gravely
disabled and as to whether the patient requires treatment. Such testimony shall
state specifically the nature and extent of the danger to self or to others,
the persistent or acute disability or the grave disability. If the patient is
gravely disabled the physicians shall testify concerning the need for
guardianship or conservatorship, or both, and whether
or not the need is for immediate appointment. Other persons who have
participated in the evaluation of the patient or, if further treatment was
requested by a mental health treatment agency, persons of that agency who are
directly involved in the care of the patient shall testify at the request of
the court or of the patient's attorney. Witnesses shall testify as to placement
alternatives appropriate and available for the care and treatment of the
patient. The clinical record of the patient for the current admission shall be
available and may be presented in full or in part as evidence at the request of
the court, the county attorney or the patient's attorney.
C.
If the patient, for medical reasons, is unable to be present at the hearing and
the hearing cannot be conducted where the patient is being treated or confined,
the court shall require clear and convincing evidence that the patient is
unable to be present at the hearing and upon such a finding may proceed with
the hearing in the patient's absence.
D.
The requirements of subsection B are in addition to all rules of evidence and
the
E.
A verbatim record of all proceedings under this section shall be made by
stenographic means by a court reporter if a written request for a court
reporter is made by any party to the proceedings at least twenty-four hours in
advance of such proceedings. If stenographic means are not requested in the
manner provided by this subsection, electronic means shall be directed by the
presiding judge. The stenographic notes or electronic tape shall be retained as
provided by statute.
F.
A patient who has been ordered to undergo treatment may request a certified
transcript of the hearing. To obtain a copy, the patient shall pay for a
transcript or shall file an affidavit that he is without means to pay for a
transcript. If the affidavit is found true by the court, the expense of the
transcript is to be a charge upon the county in which the proceedings were
held, or, if an intergovernmental agreement by the counties has required
evaluation in a county other than that of the patient's residence, such expense
may be charged to the county of the patient's residence or in which the patient
was found prior to evaluation.
36-540. Court options
A.
If the court finds by clear and convincing evidence that the proposed patient,
as a result of mental disorder, is a danger to self, is a danger to others, is
persistently or acutely disabled or is gravely disabled and in need of
treatment, and is either unwilling or unable to accept voluntary treatment, the
court shall order the patient to undergo one of the following:
1. Treatment in a program of outpatient treatment.
2. Treatment in a program consisting of combined inpatient
and outpatient treatment.
3. Inpatient treatment in a mental health treatment agency,
in a veterans administration hospital pursuant to article 9 of this chapter, in
the state hospital or in a private hospital, if the private hospital agrees,
subject to the limitations of section 36-541.
B.
The court shall consider all available and appropriate alternatives for the
treatment and care of the patient. The court shall order the least restrictive
treatment alternative available.
C.
The court may order the proposed patient to undergo outpatient or combined
inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2
of this section if the court:
1. Determines that all of the following apply:
(a) The patient does not require continuous inpatient
hospitalization.
(b) The patient will be more appropriately treated in an
outpatient treatment program or in a combined inpatient and outpatient
treatment program.
(c) The patient will follow a prescribed outpatient
treatment plan.
(d) The patient will not likely become dangerous or suffer
more serious physical harm or serious illness or further deterioration if the
patient follows a prescribed outpatient treatment plan.
2. Is presented with and approves a written treatment plan
that conforms with the requirements of section
36-540.01, subsection B. If the treatment plan presented to the court pursuant
to this subsection provides for supervision of the patient under court order by
a mental health agency that is other than the mental health agency that
petitioned or requested the county attorney to petition the court for treatment
pursuant to section 36-531, the treatment plan must be approved by the medical
director of the mental health agency that will supervise the treatment pursuant
to subsection E of this section.
D.
An order to receive treatment pursuant to subsection A,
paragraph 1 or 2 of this section shall not exceed three hundred sixty-five
days. The period of inpatient treatment under a combined treatment order
pursuant to subsection A, paragraph 2 of this section shall not exceed the
maximum period allowed for an order for inpatient treatment pursuant to
subsection F of this section.
E.
If the court enters an order for treatment pursuant to subsection A, paragraph 1 or 2 of this section, all of the following
apply:
1. The court shall designate the medical director of the
mental health treatment agency that will supervise and administer the patient's
treatment program.
2. The medical director shall not use the services of any
person, agency or organization to supervise a patient's outpatient treatment
program unless the person, agency or organization has agreed to provide these
services in the individual patient's case and unless the department has
determined that the person, agency or organization is capable and competent to
do so.
3. The person, agency or organization assigned to supervise
an outpatient treatment program or the outpatient portion of a combined
treatment program shall be notified at least three days before a referral. The
medical director making the referral and the person, agency or organization
assigned to supervise the treatment program shall share relevant information
about the patient to provide continuity of treatment.
4. During any period of outpatient treatment under
subsection A, paragraph 2 of this section, if the court, on motion by the
medical director of the patient's outpatient mental health treatment facility,
determines that the patient is not complying with the terms of the order or
that the outpatient treatment plan is no longer appropriate and the patient
needs inpatient treatment, the court, without a hearing and based on the court
record, the patient's medical record, the affidavits and recommendations of the
medical director, and the advice of staff and physicians familiar with the
treatment of the patient, may enter an order amending its original order. The
amended order may alter the outpatient treatment plan or order the patient to
inpatient treatment pursuant to subsection A, paragraph 3 of this section. The
amended order shall not increase the total period of commitment originally
ordered by the court or, when added to the period of inpatient treatment
provided by the original order and any other amended orders, exceed the maximum
period allowed for an order for inpatient treatment pursuant to subsection F of
this section. If the patient refuses to comply with an amended order for
inpatient treatment, the court may authorize and direct a peace officer, on the
request of the medical director, to take the patient into protective custody
and transport the patient to the agency for inpatient treatment. When reporting
to or being returned to a treatment agency for inpatient treatment pursuant to
an amended order, the patient shall be informed of the patient's right to
judicial review and the patient's right to consult with counsel pursuant to
section 36-546.
5. During any period of outpatient treatment under
subsection A, paragraph 2 of this section, if the medical director of the
outpatient treatment facility in charge of the patient's care determines, in
concert with the medical director of an inpatient mental health treatment
facility who has agreed to accept the patient, that the patient is in need of
immediate acute inpatient psychiatric care because of behavior that is
dangerous to self or to others, the medical director of the outpatient
treatment facility may order a peace officer to apprehend and transport the
patient to the inpatient treatment facility pending a court determination on an
amended order under paragraph 4 of this subsection. The patient may be detained
and treated at the inpatient treatment facility for a period of no more than
forty-eight hours, exclusive of weekends and holidays, from the time that the
patient is taken to the inpatient treatment facility. The medical director of
the outpatient treatment facility shall file the motion for an amended court
order requesting inpatient treatment no later than the next working day
following the patient being taken to the inpatient treatment facility. Any
period of detention within the inpatient treatment facility pending issuance of
an amended order shall not increase the total period of commitment originally
ordered by the court or, when added to the period of inpatient treatment
provided by the original order and any other amended orders, exceed the maximum
period allowed for an order for inpatient treatment pursuant to subsection F of
this section. If a patient is ordered to undergo inpatient treatment pursuant
to an amended order, the medical director of the outpatient treatment facility shall
inform the patient of the patient's right to judicial review and to consult
with an attorney pursuant to section 36-546.
F.
The maximum periods of inpatient treatment that the court may order, subject to
the limitations of section 36-541, are as follows:
1. Ninety days for a person found to be a danger to self.
2. One hundred eighty days for a person found to be a danger
to others.
3. One hundred eighty days for a person found to be
persistently or acutely disabled.
4. Three hundred sixty-five days for a person found to be
gravely disabled.
G.
If, on finding that the patient is gravely disabled, the court also finds that
the evidence indicates that the patient is or may be in need of guardianship or
conservatorship, or both, the court shall order an investigation
concerning the need for a guardian or conservator, or both, and shall appoint a
suitable person or agency to conduct the investigation. The appointee may
include the mental health treatment agency that is providing inpatient or
outpatient treatment, a court appointed visitor or the public fiduciary if
there is no person willing and qualified to act in that capacity. The court
shall give notice of the appointment to the appointee within three days of the
appointment. The appointee shall submit the report of the investigation to the
court within twenty-one days. The report shall include recommendations as to
who should be guardian or who should be conservator, or both, and a report of
the findings and reasons for the recommendation. If the investigation and
report so indicate, the court shall order the appropriate person to submit a
petition to become the guardian or conservator, or both, of the patient.
H.
If, on finding that a patient is gravely disabled, the court also finds that
the patient is in need of immediate guardianship for the purpose of protection
of the patient or for the purpose of carrying out alternatives to court-ordered
treatment, the court may appoint as a temporary guardian a suitable person or
the public fiduciary, if there is no person qualified and willing to act in
that capacity.
I.
If, on finding that a patient is gravely disabled, the court also learns that
the patient has a guardian appointed under title 14, the court may with notice
impose on the existing guardian additional duties pursuant to section
14-5312.01.
J.
The court shall file a report as part of the court record on its findings of
alternatives for treatment.
K.
Treatment shall not include psychosurgery, lobotomy or any other brain surgery
without specific informed consent of the patient or the patient's legal
guardian and an order of the superior court in the county in which the
treatment is proposed, approving with specificity the use of the treatment.
L.
The medical director or any person, agency or organization used by the medical
director to supervise the terms of an outpatient treatment plan shall not be
held civilly liable for any acts committed by a patient while on outpatient
treatment if the medical director, person, agency or organization has in good
faith followed the requirements of this section.
M.
A peace officer who in good faith apprehends and transports a patient to an
inpatient treatment facility on the order of the medical director of the
outpatient treatment facility pursuant to subsection E, paragraph 5 of this
section shall not be subject to civil liability.
N.
If a person has been found, as a result of a mental disorder, to constitute a
danger to self or others and the court enters an order for treatment pursuant
to subsection A of this section, the court shall grant access to the person's
name, date of birth, social security number, date of commitment and, on
termination of treatment by court order, date of termination to the department
of public safety to comply with the requirements of title 13, chapter 31 and
title 32, chapter 26.
36-540.01. Conditional outpatient
treatment
A.
The medical director may issue an order for conditional outpatient treatment
for a patient ordered to undergo treatment pursuant to section 36-540 if, after
consultation with staff familiar with the patient's case history, the medical
director determines with a reasonable degree of medical probability that all of
the following apply:
1. The patient no longer requires continuous inpatient
hospitalization.
2. The patient will be more appropriately treated in an
outpatient treatment program.
3. The patient will follow a prescribed outpatient treatment
plan.
4. The patient will not likely become dangerous, suffer more
serious physical harm or serious illness or further deteriorate if the patient
follows a prescribed outpatient treatment plan.
B.
The order for conditional outpatient treatment issued by the medical director
shall include a written outpatient treatment plan prepared by staff familiar
with the patient's case history and approved by the medical director. The plan
shall include all of the following:
1. A statement of the patient's requirements, if any, for
supervision, medication and assistance in obtaining basic needs such as
employment, food, clothing or shelter.
2. The address of the residence where the patient is to live
and the name of the person in charge of the residence, if any.
3. The name and address of any person, agency or
organization assigned to supervise an outpatient treatment plan or care for the
patient, and the extent of authority of the person, agency or organization in
carrying out the terms of the plan.
4. The conditions for continued outpatient treatment, which
may require periodic reporting, continuation of medication and submission to
testing, and may restrict travel, consumption of spirituous liquor and drugs,
associations with others and incurrence of debts and obligations or such other
reasonable conditions as the medical director may specify.
C.
Before release for conditional outpatient treatment, the patient shall be
provided with copies and full explanations of the medical director's order and
the treatment plan. If, after full explanation, the patient objects to the plan
or any part of it, the objection and reasons for the objection shall be noted
in the patient's record. The medical director's order and treatment plan shall
be filed in the patient's medical file and shall also be filed with the court.
D.
The period for which conditional outpatient treatment may be ordered may not
exceed the remainder of the period of court ordered treatment.
E.
Before the release of a patient found to be a danger to others for outpatient
treatment, the medical director shall give notice pursuant to section
36-541.01, subsection B and a motion for a determination by the court as to
whether the standard for conditional release of the patient has been met may be
made by the persons and in the manner provided for in section 36-541.01,
subsection G. Before the release of a person found to be a danger to self, to
be persistently or acutely disabled or to be gravely disabled for outpatient
treatment, the medical director shall give notice to the court that ordered the
patient to undergo treatment.
F.
The medical director shall require periodic reports concerning the condition of
patients on conditional outpatient treatment from any person, agency or
organization assigned to supervise an outpatient treatment plan. Such reports
shall be required at intervals not to exceed thirty days.
G.
The medical director shall review the condition of a patient on conditional
outpatient treatment at least once every thirty days and enter the findings in
writing in the patient's file. In conducting the review, the medical director
shall consider all reports and information received and may require the patient
to report for further evaluation.
H.
The medical director may amend any part of the outpatient treatment plan during
the course of conditional outpatient treatment. If the plan is amended, the
medical director shall issue a new order including the amended outpatient
treatment plan. The new order and amended outpatient treatment plan shall be
filed in the patient's medical file. Copies of the new order and outpatient
treatment plan shall be immediately provided to the patient and to any person,
agency or organization assigned to supervise an outpatient treatment plan.
Copies of the new order and outpatient treatment plan shall be immediately
filed with the court.
I.
The medical director may rescind an order for conditional outpatient treatment
and order the patient to return to a mental health treatment agency at any time
during the period of court ordered treatment if, in the medical director's
judgment, the patient has failed to comply with a term of the outpatient
treatment plan or if, for any reason, the medical director determines that the
patient needs inpatient treatment or that conditional outpatient treatment is
no longer appropriate.
J.
If the medical director rescinds an order for conditional outpatient treatment
and the patient is returned to a mental health treatment agency for inpatient
treatment, the patient shall be informed of the patient's right to judicial
review and right to consult with counsel pursuant to section 36-546.
K.
If the medical director rescinds an order for conditional outpatient treatment
and orders the patient to return to a mental health treatment agency, the
medical director may request a peace officer or a designated officer or
employee of the treatment agency to take the patient into custody for immediate
delivery to the agency pursuant to section 36-544.
L.
The medical director is not civilly liable for any act committed by a patient
while on conditional outpatient treatment if the medical director has in good
faith followed the requirements of this section.
M.
This section does not prevent the medical director from authorizing a patient
ordered to undergo treatment pursuant to section 36-540 as a danger to self, a
danger to others, persistently or acutely disabled or gravely disabled to leave
the treatment agency for periods of no more than five days under the care,
custody and control of a spouse, relative or other responsible person if the
medical director determines that the patient will not become dangerous or
suffer serious physical harm or illness during that time.
N.
The medical director may authorize a patient who is civilly committed pursuant
to section 36-540 to leave the state hospital grounds unaccompanied if the
leave is part of an inpatient individualized treatment and discharge plan, and
if the medical director determines that the patient will not become dangerous
or suffer serious physical harm or illness during that time.
36-540.02. Transfer of gravely disabled
person without a guardian from a mental health treatment agency to another
health care facility
A.
A person who does not have a guardian under the provisions of section
14-5312.01 and who has been found by the court to be gravely disabled and
ordered to undergo treatment pursuant to this article may receive care in
another health care institution licensed by the department during the course of
the person's court-ordered treatment in accordance with department rules.
B.
The deputy director, with the approval of the director, shall adopt rules
pertaining to persons described in subsection A of this section to provide for
their alternative care in another health care institution licensed by the
department during the course of court-ordered treatment. The rules shall allow
transfer of patients from a mental health treatment agency to another health
care institution, transfer from one such institution to another and return to a
mental health treatment agency.
36-541. Mandatory local treatment
A. A patient who is ordered by a court to undergo treatment,
if not hospitalized in the state hospital at the time of the order, shall undergo treatment for at
least twenty-five days in a local mental health treatment agency geographically
convenient for the patient before being hospitalized in the state hospital.
This section shall not apply if the court finds, at a hearing on court-ordered
treatment, that the patient's present condition and history demonstrate that
the patient will not benefit from the required period of treatment in a local
mental health treatment agency or that the state hospital provides a program
which is specific to the needs of the patient and is unavailable in the local
mental health treatment agency, or when there is no local mental health
treatment agency readily available to the patient. Such a finding shall be
based at least upon the annual written description by the state hospital of
programs and services available and appropriate written reports from the
medical director of the local mental health treatment agency. The patient may
be immediately hospitalized at the state hospital whenever the court determines
that this section does not apply.
B.
A patient who is ordered by a court to undergo treatment based on a
determination that he is persistently or acutely disabled shall be treated for
at least twenty-five days solely in or by a local mental health treatment
agency geographically convenient for the patient unless he is accepted by the
superintendent of the state hospital for treatment at the state hospital.
36-541.01. Release or discharge from
treatment prior to expiration of period ordered by court; notification of
intent to release or discharge; hearing
A.
A patient ordered to undergo treatment pursuant to this article may be released
from treatment prior to the expiration of the period ordered by the court if,
in the opinion of the medical director of the mental health treatment agency,
the patient no longer is, as a result of a mental disorder, a danger to others,
a danger to self, persistently or acutely disabled or gravely disabled. No
person ordered to undergo treatment as a danger to others may be released or
discharged from treatment prior to the expiration of the period for treatment
ordered by the court unless the medical director first gives notice of
intention to do so as provided by this section.
B.
Prior to the release or discharge of a patient ordered to undergo treatment as
a danger to others, the medical director of the mental health treatment agency
shall give notice of his intention to release or discharge the patient. Notice
shall be given to the presiding judge of the court which entered the order for
treatment, any relative or victim of the patient who has filed a demand for
notice with the treatment agency and any person found by the court to have a
legitimate reason for receiving such notice.
C.
If the director of the mental health treatment agency is unable to determine,
based upon the information submitted pursuant to subsection D, that a person
who has filed a demand for notice is a victim he shall inform that person that
his demand for notice is denied and that notice will not be given unless
ordered by the court pursuant to subsection E.
D.
A demand for notice by a relative or victim, and a petition for notice by other
persons, shall be on a form prescribed by the department and shall include the
following information:
1. The full name of the person to receive notice.
2. The address to which notice is to be mailed.
3. The telephone number of the person to receive notice.
4. The relationship to the patient, if any, or the reasons
why the person believes he has a legitimate reason to receive notice.
5. A statement that the person will advise the treatment
agency in writing by certified mail, return receipt requested, of any change in
the address to which notice is to be mailed.
6. The full name of the patient ordered to undergo treatment
as a danger to others.
7. The mental health number assigned to the case by the
superior court.
E.
If the court receives a demand for notice by a relative or victim,
the court shall order the medical director of the mental health treatment
agency not to release or discharge the patient before the expiration of the
period of court-ordered treatment without first giving notice to the relative
or victim as provided in subsection F. After considering a petition for notice,
if the court finds that the petitioner has a legitimate reason for receiving
prior notice, the court may order the medical director of the mental health
treatment agency not to release or discharge the patient from inpatient
treatment before the expiration of the period of court-ordered treatment
without first giving notice to the petitioner as provided in subsection F. Any
order for notice shall be delivered to the mental health treatment agency and
shall be filed with the patient's clinical record. If the patient is
transferred to another agency or institution, any orders for notice shall be
transferred with the patient.
F.
A notice of intention to release or discharge shall include the following
information:
1. The name of the patient to be released or discharged.
2. The type of release or discharge.
3. The date of anticipated release or discharge. Notices
shall be placed in the mail, postage prepaid and addressed to the court and to
each person for whom notice has been ordered, at least
ten days before the date of intended release or discharge. For purposes of
computing the ten-day notice requirement, the day of mailing shall not be
counted.
G.
Any person for whom prior notice is required pursuant to this section, or the
court, may make a motion within the ten-day notification period which requires
the court to determine whether the standard for release of the patient prior to
the expiration of the period for court-ordered treatment has been met. A
determination that the standard for release has been met may be made by the
court based on a review of the record and any affidavits submitted without
further hearing. For good cause, the court may order an evidentiary hearing.
Whether or not a hearing is held, the court shall make a determination at the
earliest possible time but no longer than three weeks after the anticipated
date of release pursuant to subsection F, and the patient shall be retained for
the additional time required for the court's determination. In making its
determination the court may order an independent examination of the patient. If
no motion is made, the patient may be released in accordance with the terms set
forth in the notice without further court order.
H.
If no motion has been made pursuant to subsection G, the patient may be released
or discharged and the medical director of the mental health treatment agency
shall send to the court a certificate that the patient is no longer a danger to
others, a danger to self, persistently or acutely disabled or gravely disabled
as the result of a mental disorder and therefore is released prior to the
expiration of the period ordered for treatment. The court shall enter an order
terminating the patient's court-ordered treatment.
I.
The medical director of the mental health treatment agency shall not be held
civilly liable for any acts committed by a patient released prior to the
expiration of the period of court-ordered treatment if the medical director has
in good faith followed the requirements of this section.
36-542. Discharge of patient at expiration
of period ordered by court; change to voluntary status; relief from civil
liability
A.
A patient ordered by a court to undergo treatment as a danger to others, a
danger to self or persistently or acutely disabled shall be discharged from
treatment at the expiration of the period of treatment ordered unless one of
the following occurs:
1. The person accepts voluntary treatment at the mental
health treatment agency.
2. Prior to the discharge date, a new petition is filed in
the county in which the patient is being treated. The proceedings shall then be
governed by this article. The costs of the proceedings shall be a charge
against the county in which the patient resided or was found prior to
hospitalization.
B.
If a patient to be discharged is under guardianship, the medical director of
the mental health treatment agency shall notify the guardian ten days prior to
discharge.
C.
The medical director shall not be held civilly liable for any acts committed by
a discharged patient if the medical director has in good faith followed the
requirements of this article.
36-543. Release from treatment of
gravely disabled patient; annual review and examination
A.
A patient found to be gravely disabled and ordered to undergo treatment may be
released from inpatient treatment when, in the opinion of the medical director
of the mental health treatment agency, the level of care offered by the agency
is no longer required. The patient may agree to continue treatment voluntarily.
If the patient is to be released, the medical director shall arrange for an
appropriate alternative placement.
B.
If a patient to be released is under guardianship as a gravely disabled person,
the medical director of the mental health treatment agency shall notify the
guardian ten days before the intended release date that the ward no longer
requires the level of care offered by the agency. The guardian shall arrange
alternative placement with the advice and recommendations of the medical
director of the mental health treatment agency.
C.
The medical director of the mental health treatment agency is not civilly
liable for any acts committed by the released patient if the medical director
has in good faith complied with the requirements of this article.
D.
A patient who has been found to be gravely disabled and is undergoing
court-ordered treatment shall have an annual examination and review to
determine whether the continuation of court-ordered treatment is appropriate
and to assess the needs of the patient for guardianship or conservatorship,
or both. The medical director of the mental health treatment agency shall
appoint one or more examiners qualified to carry out the examination, at least
one of whom shall be a psychiatrist licensed to practice in this state, and may
at the discretion of the medical director appoint one or more additional
examiners.
E.
Each examiner participating in the annual examination and review of a gravely
disabled person shall submit a report to the medical director of the mental
health treatment agency which includes the following:
1. The examiner's opinions as to whether the patient
continues to be gravely disabled and in need of treatment.
2. A statement as to whether suitable alternatives to
court-ordered treatment are available.
3. A statement as to whether voluntary treatment would be
appropriate.
4. A review of the patient's status as to guardianship or conservatorship, or both, the adequacy of existing
protections of the patient and the continued need for guardianship or conservatorship, or both. If the examiner concludes that
the patient's needs in these areas are not being adequately met, the examiner's
report shall recommend that the court order an investigation into the patient's
needs.
F.
The medical director of the mental health treatment agency shall forward the
results of the annual examination and review of a gravely disabled person to
the court including the medical director's recommendation based on the review
which may be release of the patient without delay, release with delay or no
release. If the patient does not have a guardian, the court shall, on receipt
of the medical director's report, appoint an attorney to represent the patient.
An attorney appointed under this subsection, within three days after
appointment, to the extent possible, shall fulfill the duties imposed by
section 36-537 and review the medical director's report, the patient's medical
records, interview the physician who prepared the report and, if appropriate,
request a hearing. If the patient is under guardianship pursuant to section
14-5312.01, a copy of the report shall be mailed to the patient's guardian. If
the medical director's recommendation is no release or release with delay, the
court may accept the report and recommendation of the medical director or order
a hearing. The court shall order a hearing if requested to do so by the
patient, the medical director or, if the patient has a guardian pursuant to
section 14-5312.01, the guardian. If a hearing is ordered, the court may order
additional examinations of the patient. The hearing shall be held within three
weeks of the request. At the hearing the court may order the patient released
or may order that treatment be continued. The court may also order an
investigation into the need for guardianship.
G.
The deputy director shall create and operate a program to assure that the
examination and review of gravely disabled persons are carried out in an
effective and timely manner. The deputy director, with the approval of the
director, shall adopt rules needed to operate this program.
36-544. Unauthorized
absences; violation; classification; tolling period; hearing
A.
When any patient who is being evaluated or treated is absent without proper
authorization from an evaluation agency or a mental health treatment agency, or
when an order for outpatient treatment is rescinded, any peace officer shall,
upon oral or written request of the medical director of the agency and without
the necessity of a warrant or court order, or any officer or employee of the
agency who has been previously designated in writing by the medical director of
the agency to perform such duties may, take into custody and deliver such
patient to the agency. Such officers and employees of the agency have the
powers and duties of peace officers so far as is necessary to carry out the
provisions of this section.
B.
Any person who intentionally assists any patient being evaluated or treated in
an agency to be absent from the agency without proper authorization, or who
intentionally assists a patient whom he knows to be absent without proper
authorization or whom he knows to be a patient whose order for outpatient
treatment has been rescinded and who has been ordered to return to the agency,
or to resist being returned to the agency after such absence is guilty of a
class 2 misdemeanor.
C.
The period of court-ordered treatment ceases to run during the unauthorized
absence of the patient from the jurisdiction or from any required supervision
and resumes running only on the patient's voluntary or involuntary return to
the treatment agency.
D.
A patient who remains on unauthorized absence status continuously for at least
ninety days may petition the court on his return to the treatment agency for a
hearing to determine his current mental status and his present need for
treatment. The court shall order a hearing if requested by the patient, his
legal guardian or an interested party. The hearing shall be held within
seventy-two hours after the request.
E.
Subsections C and D of this section shall apply only to inpatient treatment
pursuant to section 36-540, subsection A, paragraphs 2
and 3.
ARTICLE
6 – COSTS AND SERVICES
36-545. Voluntary admissions to the
state hospital; reimbursements; indigents
The
director shall establish the amount which will fully reimburse the state for
the expense of examining, evaluating, treating and maintaining the patient. The
state hospital shall charge the patient all or such portion of the established
amount as the patient can afford. If the patient is indigent, no charge shall
be made. The state hospital shall require prompt payment of the charge.
36-545.01. Payment of costs and expenses;
ability to pay; power and duty of court; acceptance of other benefits; per
capita cost limitation; guardians; parental liability; lien; duty of county
attorney
A.
When a patient is admitted to the state hospital for court-ordered treatment pursuant
to article 5 of this chapter or pursuant to section 13-3994, the business
manager of the state hospital shall inquire into the ability of the patient to
pay the costs of examination, maintenance and treatment. The business manager
shall file with the clerk of the court a written report of the manager's
findings and the basis of those findings.
B.
If the patient is able to pay all or any portion of the charges,
the court shall order the payment of the amount the patient can afford of the
per capita cost for examination, treatment and maintenance as estimated by the
deputy director. The court may, upon petition of an interested person, and at a
hearing of which all concerned parties have received notice, increase or
decrease the maintenance charge payable by the patient or the patient's estate.
C.
Notwithstanding subsection B of this section, any federal, state, public or
private medical benefits which are payable to the state hospital where the
patient is receiving care and treatment or which are payable to the patient may
be accepted by the state hospital without a court order, except that the state
hospital shall not accept any such benefits which alone or in addition to any
amounts payable pursuant to subsection B of this section exceed the per capita
cost for the patient.
D.
The court may, if necessary, appoint a conservator of the patient to carry out
this section. If a conservator is appointed, the clerk of the court shall file
a certificate so stating. All proceedings relating to such conservatorship
shall be had as provided by law for conservators of estates. The conservator
shall pay the amount ordered by the court pursuant to subsection B of this
section.
E.
If the patient is a minor, the business manager of the state hospital shall
inquire into the ability of the minor's parents to bear charges pursuant to
this section. All obligations, charges and liens that may be imposed on a
patient pursuant to this section shall be imposed on the minor's parents if it
is determined that the parents have the ability to pay.
F.
The charges fixed by the court as provided by this section and ordered paid by
the patient or the patient's estate shall, upon filing with the county
recorder, become a lien upon property of the patient or the patient's estate.
G.
The county attorney of each county shall, upon an order of a judge of the
superior court, enforce the lien and collect the charges from the person
ordered to pay if the charges become delinquent.
H.
Costs of examination, treatment and maintenance shall not be charged to any
patient found by a court of competent jurisdiction to be unlawfully detained.
I.
Notwithstanding section 36-545.02, the department shall deposit, pursuant to
sections 35-146 and 35-147, monies collected through contracts entered into
pursuant to section 36-3410 in the
All
monies collected pursuant to sections 36-545 and 36-545.01 for examination,
evaluation, treatment and maintenance of patients shall be deposited, pursuant
to sections 35-146 and 35-147, in the state general fund
36-545.03. Payment of costs and expenses
by person hospitalized in private or voluntary nonprofit facility
All
costs in connection with a patient hospitalized in a private or voluntary nonprofit
facility, including costs for evaluation, shall be borne by the patient, his
parents, spouse, guardian or estate and shall not be a charge against the state
or county except as provided in section 36-545.05.
36-545.04. Costs of court proceedings;
compensation for evaluation and testimony
A.
Except as provided in this chapter, costs of court proceedings and cost of
services provided by a county pursuant to article 4 are a charge against the
county in which the patient resided or was found prior to hospitalization. The
clerk of the superior court in the county where the proceedings are held shall
certify to the board of supervisors of the county where the patient resided or
was found prior to hospitalization that such proceedings were held and the
amount of the balance of the incurred costs.
B.
If a physician, psychologist or social worker is not otherwise compensated for
evaluating a person or for testifying at a hearing, or both, the physician,
psychologist or social worker shall be paid by the county, an amount determined
reasonable by the court, subject to the same limitations as imposed upon
compensation for attorneys in hearings, as provided by section 13-4013. These
payments shall be made as a part of the costs of court proceedings as in
subsection A of this section.
36-545.05. Charges for treatment given by
agencies under department contract; charges for prepetition
screening and court-ordered evaluation prohibited
A.
When a person is given a prepetition screening, or a
court-ordered evaluation by a screening agency or evaluation agency pursuant to
the provisions of article 4 of this chapter, the person shall not be charged.
B.
When a patient is given voluntary treatment pursuant to the provisions of
article 3 of this chapter or court-ordered treatment pursuant to the provisions
of article 5 of this chapter, the patient or proposed patient will pay all or
such portion of the established charges as the patient can afford. If the
patient is indigent no charges shall be made against him.
A.
Each county, or any combination of counties, shall provide directly or by
contract the services of a screening agency and an evaluation agency for the
purposes of this chapter.
B.
Upon a request made by a resident of the county pursuant to this chapter, a
county shall be required to provide screening or evaluation.
C.
Each county shall coordinate the provision of mental health services required
pursuant to this section with the division of behavioral health in the
department of health services.
36-545.07. Contracts between the division
and screening agencies, evaluation agencies and mental health treatment
agencies; services; plan
A.
The division, with the approval of the director, may enter into contracts with
screening agencies, evaluation agencies and mental health treatment agencies to
provide prepetition screenings, court-ordered
evaluations, voluntary evaluations, treatment of voluntary patients and
treatment of patients under the provisions of section 36-524 regardless of the
ability of the patient or proposed patient to pay. A county may be a party to a
contract as a provider of services or as a party making payments to an agency
to provide services on the part of the county. The state hospital may be
included in the contract as a provider of services and may receive
consideration not inconsistent with law.
B.
Contracts to provide services as in subsection A of this section shall be
entered into in accordance with a plan of the division, with the approval of
the director. This plan shall be developed in accordance with the state
comprehensive health plan and in accordance with a plan of the local health
planning agency submitted to and approved by the deputy director, except as
provided in subsection C of this section.
C.
If there is no recognized local health planning agency or if the local health
planning agency does not submit a plan which will, in the judgment of the
deputy director, fulfill the requirements for services of subsection A of this
section, the deputy director may develop a plan and require that it be followed
in lieu of a plan of the local health planning agency. The plan of the deputy
director shall be adopted after holding a hearing and fulfilling the
requirements of title 41, chapter 6.
D.
If funds at the disposal of the division are used for services as in subsection
A of this section, the contract shall conform to the requirements of section
36-189, subsection B.
E.
A contract to provide services as in subsection A of this section shall specify
the services to be provided as to their nature, quality, purpose, number,
extent and limitations, if any, or any other requirements the deputy director
deems necessary for the proper administration of services under the plan of the
division.
F.
A contract may specify that the county's participation fulfills in full or in
part the requirements of the county to provide services under section 36-545.06
and the requirements of the county to pay the cost of services under section
36-545.04.
ARTICLE
7 – JUDICIAL REVIEW
36-546. Judicial
review; right to be informed; request; jurisdiction
A.
In addition to the procedure for applying for a writ of habeas corpus, as
provided in title 13, chapter 38, article 26, a patient receiving court-ordered
treatment or any person acting on his behalf may request the patient's release
pursuant to the following:
1. A request in writing may be presented to any member of
the treatment staff of the agency providing the patient's treatment. The
request may be made on a prescribed form which shall be prepared by the
facility and made available for use by any person. The completed form shall
identify:
(a) The patient being treated and the agency at which he is
being treated.
(b) The person to whom the request for release was made.
(c) The person making the request for release, indicating
whether the person is the patient being treated or someone acting on his
behalf.
2. The request, when signed and dated by the person making
the request for release, shall be delivered to the medical director of the
agency. Within three days of receipt of the request, the medical director shall
deliver the form, along with a current psychiatric report of the patient's
condition, to the clerk of the court. If the person presenting the request
refuses to sign the form, the medical director of the agency shall proceed as
if the form had been signed and shall note on the form the circumstances as to
why the form was not signed.
B.
The patient shall be informed of his right to judicial review by the medical
director of the agency and his right to consult with counsel at least once each
sixty days while he is undergoing court-ordered treatment. The notification
required by this subsection shall be recorded in the clinical record of the
patient by the individual who gave the notice.
C.
With the exception of requests made pursuant to section 36-540, subsection E,
paragraphs 4 and 5 and section 36-540.01, subsection J for judicial review, a
request for judicial review may not be made sooner than sixty days after the
issuance of the order for treatment or a hearing on a previous petition for
habeas corpus or the issuance of the court order or other final resolution
determining a previous request for judicial review by the patient.
D.
Judicial review shall be in the superior court in the county in which the
patient is being treated. That court may review the additional material
presented and enter its order without necessity of further hearing.
E.
The reviewing court may order a further hearing upon the affidavit of the
attorney for the patient setting forth the need for further evidentiary hearing
and the reasons why the hearing is necessary prior to the time set for the
release of the patient.
F.
The patient shall be informed of his right to consult an attorney by the person
or court to whom he makes his request for release at the time he makes such
request and, in the case of confinement in an agency, by the reviewing court
within one day of its receipt of notice from the medical director of the agency
wherein the patient is being treated. The patient shall be permitted to consult
an attorney to assist him in preparation of a petition for the writ of habeas
corpus and to represent him in the hearing. If he is not represented by an
attorney, the reviewing court shall, within two days of its notice to the
patient of his right to counsel, appoint an attorney to assist him in the
preparation of a petition and to represent him in the hearing.
G.
The medical director of the mental health treatment agency, at least
twenty-four hours prior to the hearing, shall provide the patient's attorney
with a copy of the patient's medical records.
H.
The patient's attorney shall fulfill all of the following minimal duties:
1. Within twenty-four hours of appointment conduct an
interview with the patient.
2. At least twenty-four hours prior to such hearing
interview the patient's treatment physician if available.
3. Prior to the hearing examine the clinical record of the
patient.
4. Prior to the hearing examine the patient's court records
as to his involuntary treatment.
I.
An attorney who does not fulfill the duties prescribed by subsection H of this
section is subject to contempt of court.
36-546.01. Expedited appeal to the court
of appeals
An
order for court ordered treatment may be reviewed by appeal to the court of
appeals as prescribed in the
ARTICLE
9 – HOSPITALIZATION IN A FEDERAL FACILITY
36-548. Court-ordered treatment by the veterans administration or other agency of the
A.
Whenever, in any proceeding under the laws of this state for the court-ordered
treatment of a person alleged to be, as a result of a mental disorder, a danger
to self or to others or gravely disabled, it is determined after such
adjudication of the status of such person as may be required by law that
hospitalization in a mental health treatment agency is necessary for treatment,
and it appears that the person is eligible for care or treatment by the
veterans administration or other agency of the United States, the court, upon
receipt of a certificate from the veterans administration or other agency
showing that facilities are available and that the person is eligible for care
or treatment, may order the person to undergo treatment by the veterans administration
or other agency of the United States. A person hospitalized in a veterans
administration facility or institution operated by another agency of the United
States in accordance with the court's order for treatment shall be subject to
the rules and regulations of the veterans administration or other agency
whether the facility is located within or without the state. The chief officer
of the veterans administration facility or other
institution by another agency of the
B.
The judgment or order of commitment by a court of competent jurisdiction of
another state or of the District of Columbia, committing a person to the
veterans administration or other agency of the United States for care or
treatment, shall have the same force and effect as to the committed person
while in this state as in the jurisdiction where the court which entered the
judgment or made the order is located, and the courts of the committing state,
or of the District of Columbia, shall be deemed to have retained jurisdiction
of the person so committed for the purpose of inquiring into the mental
condition of the person, and of determining the necessity for continuance of
his hospitalization as provided by subsection A with respect to persons ordered
to undergo treatment by the courts of this state. Consent is given to the
application of the law of the committing state or
C.
Upon receipt of a certificate of the veterans administration or other agency of
the United States that facilities are available for the care or treatment of
any person heretofore ordered to undergo treatment in a mental health treatment
agency and that the person is eligible for care or treatment, the medical
director of the mental health treatment agency may cause the transfer of the
person to a veterans administration facility or institution operated by another
agency of the United States for care or treatment. Upon effecting
any such transfer, the superior court which ordered treatment for the patient
shall be notified thereof by the transferring agency. No person shall be
transferred to a veterans administration facility or institution operated by
another agency of the United States if he is confined pursuant to an order of a
superior court under rules of criminal procedure, unless prior to transfer the
superior court enters an order for the transfer.
D.
A person transferred as provided in this section is deemed to have been ordered
to undergo treatment by the veterans administration or
other agency of the
ARTICLE
10 – COMMUNITY MENTAL HEALTH RESIDENTIAL TREATMENT SYSTEM
36-550. Definitions
In
this article, unless the context otherwise requires:
1. "Community residential treatment system" means
a statewide system of community based residential treatment programs for the
seriously mentally ill which provides a wide range of services as alternatives
to institutionalization and in the least restrictive setting.
2. "Deputy director"
means the deputy director of the division of behavioral health in the
department of health services.
3. "Division" means the division of behavioral
health in the department of health services.
4. "Seriously mentally ill" means persons, who as
a result of a mental disorder as defined in section 36-501 exhibit emotional or
behavioral functioning which is so impaired as to interfere substantially with
their capacity to remain in the community without supportive treatment or
services of a long-term or indefinite duration. In these persons mental disability
is severe and persistent, resulting in a long-term limitation of their
functional capacities for primary activities of daily living such as
interpersonal relationships, homemaking, self-care, employment and recreation.
36-550.01. Statewide
plan for community residential treatment
A.
The deputy director shall establish a statewide plan for a community
residential treatment system by
B.
In addition to the provisions in subsection A of this section, the statewide
plan shall include the following elements:
1. A description on a county by county basis of the current
programs and service delivery mechanisms providing services to the seriously
mentally ill.
2. An identification of areas within the state where multiple
jurisdictions could participate in program delivery utilizing intergovernmental
contracts.
3. Goals, objectives and priorities for the delivery of such
services and methods to evaluate program effectiveness of goals, objectives and
priorities.
4. Cooperation with the counties to develop and maintain a
coordinated system for delivery of residential care.
5. Methods for estimating the need for community residential
treatment services and for allocating state funds according to that need.
C.
The deputy director may establish such rules and regulations, with the approval
of the director, as are necessary for the implementation of this article.
A.
Each county shall be responsible for developing an individual county profile of
existing programs, needs and goals for consideration by the director for
inclusion within the statewide plan as required in section 36-550.01.
B.
The deputy director, upon receipt of the county profile required in subsection
A of this section, shall incorporate those portions compatible with the
statewide plan, and, in cooperation with the county, modify those portions of
the profile determined by the deputy director to be incompatible with the
statewide plan.
36-550.03. Statewide
plan implementation; contract requirements; exception
A.
Upon establishment of the statewide plan for a community residential treatment
system as required in section 36-550.01, the deputy director shall provide for
the delivery of such programs and services, utilizing all funds identified and
available for the seriously mentally ill, in the following manner:
1. Provide such programs and services directly through the
division or by contract with other public or private agencies.
2. Contract with individual counties to provide programs and
services directly or by contract with other public or private agencies.
3. Provide for programs and services by any combination of
service delivery mechanisms as prescribed in paragraphs 1 and 2 of this
subsection.
B.
The deputy director may use any funds available to the division for the
purposes of this article to provide for the establishment and maintenance of
community residential treatment programs and services. If the deputy director
contracts with a county as prescribed in subsection A of this section, the
deputy director may require not more than a twenty-five per cent match of local
or other funds. The matching requirement for local or other funds may be
provided by either direct funding or by in kind services.
C.
If the programs and services prescribed in subsection A of this section are
provided through a contract with a private agency, the deputy director shall
not require matching funds as a condition for a contract to provide services.
36-550.04. Evaluation system; contract
requirements
A.
The deputy director shall develop and implement an evaluation system which
shall include, but not be limited to, program planning and development, fiscal
and data management and contract administration.
B.
A county which desires to contract with the deputy director to deliver programs
and services as provided by this article may initiate such contract upon a
majority vote of the board of supervisors. Such contract may be implemented
directly by the county or indirectly by contract with other public or private
nonprofit agencies.
C.
Any county contracting with the division shall meet the evaluation requirements
established by the deputy director pursuant to subsection A.
36-550.05. Community mental health
residential treatment services and facilities; prevention services
A.
A residential or day treatment facility shall be designed to provide a homelike
environment without sacrificing safety or care. Facilities shall be relatively
small, preferably fifteen or less beds.
B.
Individual programs of a community residential treatment system shall include
the following:
1. A short-term crisis residential treatment program. This
program is an alternative to hospitalization for persons in an acute episode or
situational crisis requiring temporary removal from the home from one to
fourteen days. The program shall provide twenty-four hour, seven days a week
admission capability in the least restrictive setting possible to reduce the
crisis and stabilize the client. Services shall include direct work with the
client's family, linkage with prevocational and vocational programs, assistance
in applying for income, medical and other benefits and treatment referral.
2. A residential treatment program. This program shall
provide a full day treatment program for persons who may require intensive
support for a maximum of two years. The program shall provide rehabilitation
for chronic clients who need long-term support to develop independence and for
clients who live marginally in the community with little or no support and
periodically need rehospitalization. Services shall
include intensive diagnostic evaluation, a full day treatment program with
prevocational, vocational and special education services, outreach to social
services and counseling to assist the client in developing skills to move
toward a less structured setting.
3. A semi-supervised, structured group living program. This
program is a cooperative arrangement in which three to five persons live
together in apartments or houses as a transition to independent living. The
program shall provide an increase in the level of the client's responsibility
for the functioning of the household and an increase in the client's
involvement in daytime activities outside the house or apartment which are
relevant to achieving personal goals and greater self-sufficiency. Services
provided by the program shall include counseling and client self-assessment,
the development of support systems in the community, a day program to encourage
participation in the larger community, activities to encourage socialization
and use of general community resources, rent subsidy and direct linkages to
staff support in emergencies.
4. A socialization or day care/partial care program. This
program shall provide regular daytime, evening and weekend activities for
persons who require long-term structured support but who do not receive such
services in their residential setting. The program shall provide support for
persons who only need regular socialization opportunities and referral to
social services or treatment services. The program shall provide opportunities
to develop skills to achieve more independent functioning and means to reduce
social isolation. Services shall include outings, recreational activities,
cultural events and contact with community resources, such as prevocational
counseling and life skills training.
C.
Individual and family support prevention services shall provide assistance to
the seriously mentally ill residing in their own home. Such prevention services
shall include transportation, recreation, socialization, counseling, respite,
companion services and in-home training.
D.
Each individual program shall use appropriate multidisciplinary staff to meet
the diagnostic and treatment needs of the seriously mentally ill and shall
encourage use of paraprofessionals.
E.
Each program shall have an evaluation method to assess the effectiveness of the
programs and shall include the following criteria:
1. Prevalence and incidence of the target behavioral
problem.
2. Cost effectiveness.
3. Potential for implementing the program using available
funds and resources through cost-sharing.
4. Measurability of the benefits.
5. Effectiveness of intervention strategy.
6. Availability of resources and personnel.
F.
Each community residential treatment system shall be designed to provide:
1. Coordination between each program and other treatment systems
in the community.
2. A case management system to enhance cooperation of
elements within the system and provide each client with appropriate services.
3. Client movement to the most appropriate and least
restrictive service.
4. Direct referral of clients for specific programs which
does not require the client to pass through the entire system to reach the most
appropriate service.
36-550.06. Client eligibility
A.
The seriously mentally ill are eligible for services under this article if they
comply with the eligibility screening and application process prescribed in
section 36-3408, and:
1. They voluntarily seek the services; or
2. A court appointed guardian requests, in accordance with
section 36-547.04, subsection B, that they receive the services; or
3. A court orders that they receive the services; or
4. The chief medical officer of the
B.
Programs and services identified in section 36-550.05 may include purchase of
care support payments to persons to supplement social security, supplemental
security income, general assistance or veterans administration disability payments,
and client fees when available.
36-550.07. Community residential treatment
system planning grants
A.
The deputy director may award grants to counties to facilitate the planning of
community residential treatment systems for the seriously mentally ill at the
local level. Such grants shall be used to compensate personnel for the
preparation of a written plan which shall include the following information:
1. An estimate of the need for residential treatment
services in the area.
2. A survey of all existing residential treatment and day or
socialization programs in the area to be served by the system.
3. An identification of those residential treatment programs
needed to provide the continuum of residential treatment programs described in
this article and strategy to encourage their development.
4. A statement on the relationship of the proposed services
to the long-range behavioral health development plans.
5. A financial estimate of the costs for system planning,
development and operation.
6. An estimate of the availability of resources, including
health manpower and management personnel.
7. An analysis of the availability of alternative, less
costly or more effective methods to provide the services.
B.
The deputy director shall establish criteria for determining the eligibility of
county applicants for community residential treatment system planning grants.
Such criteria may include requiring each county applicant to provide local
matching funds for community residential treatment system planning. If local
matching funds are required, the matching requirement for state funds is
seventy-five per cent state and twenty-five per cent from local or other
sources.
36-550.08. Clients' rights
Clients
receiving treatment pursuant to this article are entitled to all the rights
enumerated in this chapter.
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