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Last updated November 2003
TITLE 16
Health and Safety
PART V
Mental Health
CHAPTER 50. INVOLUNTARY COMMITMENT OF
THE MENTALLY ILL; DISCHARGE; PROCEDURE
§ 5001. Definitions.
Except
where the context indicates otherwise, as used in this chapter:
(1)
"Mentally ill person" means a person suffering from a mental disease
or condition which requires such person to be observed and treated at a mental
hospital for the person's own welfare and which both (i)
renders such person unable to make responsible decisions with respect to the
person's hospitalization, and (ii) poses a real and present threat, based upon
manifest indications, that such person is likely to commit or suffer serious
harm to that person's own self or others or to property if not given immediate
hospital care and treatment.
(2)
"Hospital" and "mental hospital" means the Delaware
Psychiatric Center, any hospital in this State which is certified by the
Secretary of the Department of Health and Social Services as being an
appropriate facility for the diagnosis, care and treatment of mentally ill
persons 18 years of age or older. "Hospital" and "mental
hospital" shall also mean any hospital in this State which is certified by
the Secretary of the Department of Services for Children, Youth and Their
Families as being an appropriate facility for the diagnosis, care and treatment
of mentally ill persons under 18 years of age.
(3)
"Court" means the Superior Court or the Family Court of the State,
both of which courts shall have jurisdiction and responsibility for the
implementation of this chapter.
(4)
"Involuntary patient" means a person admitted involuntarily to the
custody of the hospital for observation, diagnosis, care and treatment.
(5)
"Psychiatrist" means:
a. A physician licensed to practice medicine in this
State specializing in the field of psychiatry, or a physician employed by the
Delaware Psychiatric Center, registered with the Medical Council of Delaware
and certified by the Delaware Psychiatric Center Medical Director to the
Medical Council of Delaware as being qualified in the diagnosis and treatment
of mentally ill persons; or
b. Any physician employed by the
(6)
"Working day" means all days other than Saturday, Sunday and legal
holidays; and "day" means a calendar day.
(7)
"Him," "his" and all other terms used in the masculine
gender shall also include and be equally applicable to the corresponding terms
used in the feminine gender.
(8)
"Designated transport personnel" means such personnel as designated
by the Secretary of the Department of Health and Social Services to transport
mentally ill persons to and from the hospital and public treatment facilities.
(9)
"Peace officer" means any public officer authorized by law to make
arrests in a criminal case.
§ 5002. Determination of mental illness
and of procedural compliance as prerequisites to involuntary hospitalization.
Subject
to §§ 5121-5123 of this title, no person shall be involuntarily admitted to or
confined as a patient at the hospital, and the hospital shall not admit or
confine as an involuntary patient any person, unless such person is determined to
be a mentally ill person in accordance with the procedures prescribed by this
chapter, and unless the procedural requirements of this chapter are complied
with.
§ 5003. Provisional hospitalization by
psychiatrist's certification.
No
person shall be involuntarily admitted to the hospital as a patient except
pursuant to the written certification of a psychiatrist that based upon the
psychiatrist's examination of such person, such person suffers from a disease
or condition which requires the person to be observed and treated at a mental
hospital for the person's own welfare and which either renders such person
unable to make responsible decisions with respect to the person's
hospitalization, or poses a present threat, based upon manifest indications,
that such person is likely to commit or suffer serious harm to that person's
own self or others or to property, if not given immediate hospital care and
treatment. The certificate shall state with particularity the behavior and symptoms
upon which the psychiatrist's opinion is based, shall include (where available)
the name and address of the spouse or other nearest relative or person of close
relationship to the alleged mentally ill person, and shall state that such
person is not willing to accept hospital care and treatment on a voluntary
basis or that the person is incapable of voluntarily consenting to such care
and treatment.
§ 5004. Legal effect of psychiatrist's
certificate.
Where
the psychiatric examination occurs at a place other than the hospital, the
certificate of the examining psychiatrist shall constitute legal authorization
for the alleged mentally ill person to be transported (together with the
examining psychiatrist's certificate) to the hospital by a peace officer or, in
the sole discretion of the examining physician, by designated transport
personnel. Receipt by the hospital of the certificate of the examining
psychiatrist shall authorize the hospital provisionally to admit the alleged
mentally ill person as a patient. No peace officer or medical doctor shall be
subject to civil damages or criminal penalties for any harm to the mentally ill
person resulting from the performance of the officer's or doctor's own functions
under this section or under § 5003 of this title unless such harm was the
result of negligent, reckless, wilful, wanton and/or
intentional misconduct on the officer's or doctor's own part.
§ 5005. Duties of hospital upon
provisional admission.
Upon
the provisional admission of the alleged mentally ill person as an involuntary
patient:
(1)
The hospital shall cause the involuntary patient to be physically and mentally examined,
and may treat the involuntary patient if the examining psychiatrist certifies that treatment is necessary pending judicial
proceedings under this chapter;
(2)
Where the certification of the involuntary patient as a mentally ill person was
by a psychiatrist other than an employee or agent of the hospital, the hospital
shall, within 2 working days from the date of admission, independently
determine whether or not the involuntary patient is a mentally ill person. If
the hospital examining psychiatrist determines that the involuntary patient is
not a mentally ill person, such psychiatrist shall so certify in writing and
the hospital shall discharge the involuntary patient forthwith. If the hospital
examining psychiatrist independently determines that the involuntary patient is
a mentally ill person, such psychiatrist shall so certify in writing. The
certificate shall contain the information required by § 5003 of this title and
shall also set forth the date of the hospital's determination. The hospital shall
thereupon advise the involuntary patient of the patient's rights under this
chapter;
(3)
A psychiatrist designated by the Secretary of the Department of Services for
Children, Youth and Their Families may, at any time prior to the commencement
of judicial proceedings to determine the mental illness of a person under 18 years of age, conduct an independent review of a
determination that such a person is a mentally ill person. If the psychiatrist
determines that such person is not a mentally ill person, the Department may
withhold financial assistance for the diagnosis, care or treatment of such
person;
(4)
A psychiatrist designated by the Secretary of the Department of Health and
Social Services may, at any time prior to the commencement of judicial proceedings
to determine the mental illness of a person 18 years of age or older, conduct
an independent review of a determination that such person is a mentally ill
person. If the psychiatrist determines that such person is not a mentally ill
person, the Department may withhold financial assistance for the diagnosis,
care or treatment of such person;
(5)
The hospital shall investigate whether or not the involuntary patient can
afford counsel and to engage an independent psychiatrist or other qualified
medical expert at patient's own expense.
§ 5006. Procedural rights of
involuntary patients.
A
person whom the hospital has determined to be a mentally ill person shall be
entitled:
(1)
To notice (including a written statement) of the factual grounds upon which the
proposed hospitalization is predicated and the reasons for the necessity of
confinement.
(2)
To hearings before the court and to judicial determinations of (i) whether the involuntary patient's confinement is based
upon probable cause and (ii) whether or not the involuntary patient is a
mentally ill person. Such hearings shall be without jury and not open to the
public, shall be preceded by adequate notice to the involuntary patient, and
the involuntary patient shall be entitled to be present at all such hearings.
(3)
To be represented by counsel at all judicial proceedings, such counsel to be
court appointed if the involuntary patient cannot afford to retain counsel; and
to be examined by an independent psychiatrist or other qualified medical expert
and to have such psychiatrist or other expert testify as a witness in the
patient's behalf, such witness to be court appointed if the involuntary patient
cannot afford to retain such witness.
(4)
To conduct discovery, to summon and cross-examine witnesses, to present
evidence on the person's own behalf and to avail the person's own self of all
other procedural rights afforded litigants in civil causes. The privilege
against self-incrimination shall be applicable to all proceedings under this
chapter.
(5)
To have a full record made of the proceedings, including findings adequate for
review. All records and pleadings shall remain confidential unless the court
for good cause orders otherwise.
§ 5007. Judicial proceedings.
(a)
Forthwith, but not more than 2 working days from the date of provisional
admission, the hospital shall file a verified complaint in the Superior Court
or in the Family Court if the involuntary patient would otherwise be amenable
to Family Court jurisdiction under other provisions of law. The complaint shall
aver that the hospital, as petitioner, reasonably and in good faith believes
that the involuntary patient (who shall be named as respondent) is a mentally
ill person who should be continued as a patient at the hospital pursuant to
this chapter until the patient is determined no longer to be a mentally ill
person. The complaint shall also aver that the involuntary patient has been
advised of the patient's rights under this chapter. Copies of all certificates
by examining psychiatrists shall be attached to the complaint.
(b)
Nothing in this section shall preclude the involuntary patient or another
person acting on the involuntary patient's behalf from filing a complaint with
the court for a judicial determination of the involuntary patient's mental
status, in which complaint the hospital shall be named as respondent. In such
event, the hospital shall appear as respondent and
shall attach to its answer copies of certificates by the examining
psychiatrist, and the hospital shall be excused from compliance with subsection
(a) of this section.
(c)
The hospital's investigation shall indicate whether the involuntary patient is
able to afford counsel and an independent psychiatric witness within 4 working
days of provisional admission.
§ 5008. Appointment of counsel;
determination of probable cause.
Upon
the filing of the complaint the court shall forthwith:
(1)
Schedule a hearing to determine whether probable cause exists for the
involuntary patient's confinement, and, where necessary, appoint counsel to
represent the involuntary patient. Such probable cause hearing shall be held as
soon as practicable, but no later than 8 working days
from the filing of the complaint.
(2)
Direct that notice of the probable cause hearing and copies of the pleadings be
supplied to the involuntary patient, the patient's counsel and to the
involuntary patient's spouse, nearest relative or person of close relationship
to the patient as in the court's opinion would best represent the involuntary
patient's interest.
(3)
Enter such other orders as may be appropriate, including an order authorizing
the continued provisional confinement of the involuntary patient until further
order of the court.
(4)
If, pursuant to the probable cause hearing, the court determines that probable
cause does not exist, the involuntary patient shall be immediately discharged.
If the court determines that probable cause does exist, it shall schedule for
the earliest practicable date a hearing to determine whether or not the
involuntary patient is a mentally ill person; and where necessary, it shall
appoint an independent psychiatrist or other qualified medical expert to
examine the involuntary patient and act as an expert witness on the involuntary
patient's behalf. Notice of the hearing shall be given to the involuntary
patient and the patient's counsel.
(5)
For good cause shown, the court may order that judicial proceedings under this
chapter take place in the Superior Court in and for a county other than the
county in which the action was initiated.
§ 5009. Discharge by the hospital.
Notwithstanding
the pendency of the action or any order previously
entered by the court, if at any time after the complaint is filed the hospital
determines that the involuntary patient is no longer a mentally ill person, the
hospital shall so certify in writing and discharge the patient forthwith, and
shall immediately advise the court of its determination and the discharge, and
the court shall thereupon dismiss the action.
§ 5010. Hearing to determine mental
illness.
As
a result of the hearing to determine mental illness, the court shall make
specific findings:
(1)
That the involuntary patient is not a mentally ill person, in which case the
court shall order that the involuntary patient be discharged and released forthwith;
or
(2)
That based upon clear and convincing evidence, the involuntary patient is a
mentally ill person in which case the court shall enter an order of
disposition, which disposition shall be effective for a period not to exceed 3
months. In determining the disposition of the involuntary patient the court
shall consider all available alternatives, including inpatient confinement at
the hospital, and shall order such disposition as imposes the least restraint
upon the involuntary patient's liberty and dignity consistent both with
affording mental health treatment and care with protecting the safety of the
involuntary patient and the public.
§ 5011. Waiver of rights; voluntary
hospitalization.
(a)
An involuntary patient may waive any of the rights provided by this chapter if
(i) the court determines that such waiver is
voluntary and with the involuntary patient's knowing and intelligent consent,
or if (ii) where the involuntary patient is incapable of knowingly and
intelligently consenting, the court, upon application by counsel and after
appropriate inquiry and finding of facts, approves such waiver for good cause
shown. If the hearing provided for in § 5010 of this title is waived, the court
shall enter an order of disposition in accordance with subdivision (2) of §
5010 of this title.
(b)
If prior to any hearing the court determines that the involuntary patient has
knowingly and voluntarily applied for, and has been accepted for hospitalization
pursuant to § 5123 of this title, the action shall be dismissed, and § 5123
shall govern.
§ 5012. Hospitalization.
(a)
Duties of hospital upon involuntary patient's admission. -- Upon the
involuntary patient's admission to the hospital pursuant to court order, the
hospital shall for a period not to exceed 3 months render treatment to the
involuntary patient in accordance with professional standards. If by the
expiration of 3 months the involuntary patient has not been discharged by the
hospital, and if in the opinion of the hospital the involuntary patient is
still a mentally ill person, the hospital shall so notify the
court; and the court shall order a hearing to be held within 14 working
days of such notice. If the court continues the involuntary confinement upon
the expiration of an additional 6 months, and the involuntary patient has not
been discharged by the hospital, and if in the opinion of the hospital the
patient is still a mentally ill person, the hospital shall so notify the court;
and the court shall order a hearing to be held within 14 working days of such
notice.
(b)
Further hearing. -- In any further hearing the procedural requirements of §
5006 of this title shall govern, and the court may make such findings and
orders as are permitted by § 5010 of this title; provided, that the court may
order that the involuntary patient's admission to the hospital shall be
continued for an indefinite period, in which case the hospital shall report to
the court at intervals not more than 6 months as to the continued need for
involuntary hospitalization, and the court shall review the involuntary
patient's status at such 6-month intervals and be required to hold hearings, at
such intervals, until such time as the involuntary patient is discharged.
(c)
Waiver of hearing. -- An involuntary patient, if represented by counsel, may
waive, orally or in writing, any hearing under this section. The waiver must be
submitted in writing to the court or be orally presented in open court.
§ 5013. Appeal; habeas corpus; rules of
procedure.
(a)
Appeal of order of disposition. -- Any party to the proceedings may appeal an
order of disposition to the Supreme Court within 30 days of the entry of such
order. The appeal shall not operate as a stay of the order of disposition
unless the court or the Supreme Court so directs.
(b)
Habeas corpus. -- After any order of disposition becomes final, the involuntary
patient shall be entitled to petition the court for a writ of habeas corpus for
release on the grounds:
(1) That the proceeding which led to the patient's
commitment was illegal; provided, that that issue has not been previously
determined; or
(2) That although the original confinement was legal,
continued confinement is not warranted.
(c)
Court rules. -- The Superior Court and the Family Court shall adopt such rules
of procedure as may be required to implement the procedural requirements of
this chapter.
§ 5014. Enlargement of time.
Notwithstanding
§§ 5001-5013 of this title, the Court may enlarge the time for the performance
of acts by the hospital or respondent's attorney, and of scheduling hearings thereunder, for good cause shown, for a reasonable period,
consistent with the rights of the respondent.
§ 5015. Costs of transportation and
medical services.
The
State Treasurer shall pay constables, sheriffs and deputy sheriffs for service
as peace officers under this section at the rate of 15 cents for each mile
necessarily traveled as well as a custody fee of $25 for the first peace
officer and $15 for each additional peace officer; and shall pay medical
doctors for services under this section $15 for each case.
CHAPTER 51. THE DEPARTMENT OF HEALTH
AND SOCIAL SERVICES
Subchapter II. Admission, Maintenance
and Discharge of Patients
§ 5121. Voluntary admission procedure.
The
Department may establish, under the direction and supervision of the
§ 5122. Emergency apprehension of the
dangerous mentally ill; complaint; detention and treatment in the
(a)
As used in this section:
(1) "Dangerous mentally ill person" means a
person so mentally ill as to be likely to cause injury
to oneself or others and to require immediate care, treatment or restraint.
(2) "Peace officer" means any public
officer authorized by law to make arrests in a criminal case.
(3) "Designated transport personnel" means
such personnel as designated by the Secretary of the Department of Health and
Social Services to transport mentally ill persons to and from the hospital and
public treatment facilities.
(b)
Upon the signed complaint of any person stating the person has knowledge that a
designated person appears to be so mentally ill as to be likely to cause injury
to oneself or others and to require immediate care, treatment or restraint, setting
forth a description of the behavior and symptoms which led the person to the
person's conclusion, such alleged mentally ill person shall be promptly taken
into custody by any peace officer of the State to whom the complaint is
delivered without the necessity of a warrant. The complaint shall also set
forth the address of the signer, the signer's relationship or other connection
to the alleged mentally ill person and, if known, the name of the spouse or
nearest known relative.
(c)
Such alleged mentally ill person shall be taken by the peace officer, with all
reasonable promptness, to a medical doctor licensed to practice medicine or
surgery in the State for examination. The written complaint shall be delivered
to the doctor who shall, if reasonably possible, give telephonic notice of the
examination to the nearest relative as shown on the complaint, unless such
person has signed the complaint. If it reasonably appears to the doctor that
the alleged mentally ill person is a dangerous mentally ill person, the said
doctor shall so certify in writing and the alleged mentally ill person shall be
transported by the peace officer or, in the sole discretion of the examining
physician, by designated transport personnel to the Delaware Psychiatric Center
or other hospital as defined in § 5101(4) of this title with all reasonable
promptness and delivered to the officials of the said hospital, together with
the complaint and the certificate of the examining doctor. If the examining
doctor finds that the alleged mentally ill person is not a dangerous mentally
ill person, the said doctor shall so certify in writing, the alleged mentally
ill person shall be discharged from custody forthwith and the doctor shall
forward the complaint and the doctor's certificate to the
(d)
Upon receiving an alleged mentally ill person at the Delaware Psychiatric
Center or other hospital as defined in § 5101(4) of this title, the
Superintendent shall detain, care for and treat as medically appropriate, the
said patient for a period not to exceed 24 hours; provided, however, that this
period shall be 72 hours for minors admitted in conformity with § 5135 of this
title. If it appears that the nearest known relative has not received prior
notice of the proceedings, the Superintendent shall, if reasonably possible,
promptly give such notice. Unless the patient is discharged from the hospital
within that period, then at the termination of the period the person shall be
discharged unless the person is admitted or committed to the said hospital
under some other provision of law. A psychiatrist designated by the Secretary
of the Department of Services for Children, Youth and Their Families may
conduct an independent review of a determination that a person under 18 years
of age admitted to any mental health facility pursuant to this chapter is a
dangerously mentally ill person. A psychiatrist designated by the Secretary of
the Department of Health and Social Services may conduct an independent review
of a determination that a person 18 years of age or older admitted to any
mental health facility pursuant to this chapter is a dangerously mentally ill
person.
(e)
The State Treasurer shall pay constables, sheriffs and deputy sheriffs for
service as peace officers under this section at the rate of 15 cents for each
mile necessarily traveled and a custody fee of $25 for the first peace officer
and $15 for each additional peace officer, and shall pay medical doctors for
services under this section $15 for each case.
(f)
No peace officer or medical doctor shall be subject to civil damages or
criminal penalties for any harm resulting from the performance of the officer's
or doctor's functions under this section unless such harm was intentional or
the result of wilful or wanton misconduct on the
officer's or doctor's part.
§ 5123. Voluntary hospitalization of
patients at
(a)
The Superintendent of the Delaware Psychiatric Center may admit for
observation, diagnosis, care and treatment any individual who is mentally ill
or has symptoms of mental illness and who applies therefor,
subject to the payment of charges for care, maintenance and support as provided
in § 5127 of this title.
(b)
If the applicant is under the care and treatment of a medical doctor licensed
to practice medicine or surgery in this State, the application shall be
accompanied by a letter from the doctor recommending voluntary hospitalization
and setting forth a description of the behavior and symptoms of the patient
which led the doctor to the doctor's decision to recommend voluntary
hospitalization. If the applicant is not under the care and treatment of such a
medical doctor, the applicant shall not be admitted unless the Superintendent
first determines that the applicant has sufficient insight and capacity to make
responsible application for voluntary hospitalization.
(c)
If any applicant is under the age of 18 years, the application shall also be
signed by either of the applicant's parents, spouse or legal guardian.
(d)
The Superintendent shall discharge any voluntary patient who has recovered or
whose hospitalization the superintendent determines to be no longer advisable.
(e)
A voluntary patient who requests the patient's own discharge or whose discharge
is requested, in writing, by the patient's legal guardian, parent, spouse or
adult next of kin shall be discharged within 5 days from the receipt of the
request, except that (1) if the request for discharge is made by a person other
than the patient, discharge may be conditioned upon the agreement thereto of
the patient, and (2) if the patient is under the age of 18 years the patient's
discharge may be conditioned upon the consent of the patient's parent, spouse
or guardian.
(f)
A psychiatrist designated by the Secretary of the Department of Services for
Children, Youth and Their Families may conduct an independent review to
determine whether an applicant under 18 years of age who receives financial
assistance from such Department or who is in the custody of such Department is
appropriate for voluntary hospitalization. A psychiatrist designated by the
Secretary of the Department of Services for Children, Youth and Their Families
may conduct an independent review to determine whether a voluntary patient
under 18 years of age who receives financial assistance from such Department or
who is in the custody of such Department is appropriate for voluntary hospitalization.
(g)
A psychiatrist designated by the Secretary of the Department of Health and
Social Services may conduct an independent review to determine whether an
applicant 18 years of age or older who receives financial assistance from the
Department or who is in the custody of the Department is appropriate for
voluntary hospitalization. A psychiatrist designated by the Secretary of the
Department of Health and Social Services may conduct an independent review to
determine whether a voluntary patient 18 years of age or older who receives
financial assistance from the Department or who is in the custody of the
Department is appropriate for voluntary hospitalization.
(h)
Nothing contained in subsection (e) of this section shall require the discharge
of a voluntary patient if within the 5-day period from receipt of the request
for discharge the patient is admitted or committed to the said
§ 5124. Procedure after report
recommending permanent admission.
Repealed
by 59 Del. Laws, c. 570, § 2, as amended by 59 Del. Laws, c. 588, § 1, as
amended by 60 Del. Laws, c. 39, § 1, as amended by 60 Del. Laws, c. 95, § 2.
§§ 5125, 5126. Involuntary detention in
Delaware State Hospital for an indeterminate period of time; medical
certificate; liability immunity; application to Court of Chancery by committed
person for determination of sanity; procedure.
Repealed
by 60
§ 5127. Liability for maintenance of
patient; collection remedies.
(a)
Any person committed to, or placed in the Delaware Psychiatric Center shall at
all times be liable for the care, maintenance and support furnished to and
received by such person while an inmate of the Psychiatric Center. Nothing in
this section shall relieve from liability for the support of the patient any
person liable under any other law of this State.
(b)
The Department shall keep an account of the cost of the care, maintenance and
support furnished each patient while in the
(c)
The Department may collect from any patient or from the trustee for any patient
or out of the property, moneys and effects of any patient all moneys necessary
to discharge and pay all liability of the patient for the patient's care,
maintenance and support.
(d)
The Department may also proceed for the recovery of the moneys necessary for
the care, maintenance and support in an action to be brought in any court of
competent jurisdiction in the name of the Department or by petition to the
Court of Chancery if the patient has been ascertained to be insane by
inquisition duly held.
§ 5128. Expenses of examination and
removal of indigent patients.
The
expenses of the examination of an indigent person alleged to be suffering from
mental or nervous disease and of the removal of such person, if found to be
suffering mental or nervous disease, to the Delaware Psychiatric Center shall
be paid by the State Treasurer.
§ 5129. Resident and nonresident pay
patients; contracts.
(a)
The Department may receive any person suffering from mental or nervous disease
from any other state, if the person is able to pay for the person's maintenance
and support.
(b)
The Department may also receive into the
(c)
The Department may make contracts in relation to the board and maintenance,
care and custody of any patient, and may recover from the person with whom it
may contract or from the patient the compensation agreed upon, or, in case no
certain compensation was agreed upon, then it may recover a reasonable
compensation in an action to be brought in the name of the Department, or by
petition to the Court of Chancery, if the person has been ascertained to be
insane by inquisition duly held.
§ 5130. Veterans Administration
hospitals.
The
provisions in the Delaware Code pertaining to the admission, commitment, care
and release of mentally ill persons at state institutions shall apply with the
same force and effect to persons entitled to the services of hospitals for the
mentally ill operated by the Veterans Administration. Persons so entitled may
be transferred from state institutions to such Veterans Administration
hospitals subject to the statutory provisions affording interested parties the
right to have the mentally ill person's status determined as provided by law.
§ 5131. Discharge of patients at
(a)
The Superintendent of the Delaware Psychiatric Center shall as frequently as
practicable, but not less often than every 6 months, examine or cause to be
examined every hospitalized patient admitted under § 5003 of this title, and
whenever the Superintendent determines that any patient is not a mentally ill
person, as that term is defined in § 5001 of this title, or whenever the
Superintendent determines that otherwise, the care, treatment and supervision
of the Psychiatric Center are no longer necessary, the patient shall be
discharged. The certificate of discharge shall state the basis for the
discharge.
(b)
The Superintendent of the
(c)
Release on convalescent status shall include provisions for continuing
responsibility to and by the
(d)
Prior to the end of a year on convalescent status, and not less frequently than
annually thereafter, the Superintendent shall examine the facts relating to the
condition of the patient on convalescent status and whenever the Superintendent
determines that the patient is not a mentally ill person, as that term is
defined in § 5001 of this title, or whenever the Superintendent determines that
otherwise, the care, treatment and supervision of the Psychiatric Center are no
longer necessary, the patient shall be discharged. The certificate of discharge
shall state the basis for the discharge.
§ 5132. Return of patients; order;
notice; custody.
(a)
If an inpatient of a state-operated mental hospital escapes or is on
unauthorized leave, its director may issue an order for the patient's immediate
rehospitalization. The director or the director's
designee may notify such patient of the existence of a rehospitalization
order by any reasonable means of communication open to the director. Such an
order, irrespective of the patient's actual receipt, shall authorize any peace
officer to take the patient into custody for rehospitalization.
(b)
If an involuntarily committed inpatient from a non-state-operated hospital
certified under § 5135 or § 5136 of this title escapes or is on unauthorized
leave, that hospital's director shall immediately notify the Director of the
Division of Substance Abuse and Mental Health or the Director's designee if the
patient is 18 years of age or older or the Division of Child Mental Health
Services if the patient is under 18 years of age. Upon receipt of such
notification, the Division Director or the Director's designee may issue notice
and a rehospitalization order in conformity with
subsection (a) of this section. Such an order, irrespective of the patient's
actual receipt, shall authorize any peace officer to take the patient into
custody for rehospitalization.
§ 5133. Unwarranted hospitalization in
(a)
Any person who willfully causes, or conspires with or assists another to cause
(1) the unwarranted hospitalization of any individual in the Delaware
Psychiatric Center under this chapter, or (2) the denial to any individual of
any of the rights accorded to said individual under this chapter shall be
punished by a fine not exceeding $500 or imprisonment not exceeding 1 year, or
both.
(b)
The Superior Court shall have jurisdiction of offenses under this section.
§ 5134. Examinations of persons
relative to parole, pardon or commutation of sentence in case of certain
crimes.
Whenever
the Director of the Division of Substance Abuse and Mental Health or the
Director of the Division of Mental Retardation receives a request from the
Director of the Division of Correction, relative to parole, pursuant to § 4353
of Title 11, or relative to pardon or commutation of sentence, pursuant to §
4362 of Title 11, for psychiatric examination and psychological clinical
studies, and a report containing an opinion of the prisoner's condition and of
the probability of the prisoner's again committing crimes similar to the one
for which the prisoner was incarcerated, or other crimes, the Director shall
cause such examination and studies to be made at the correctional institution
or the Delaware Psychiatric Center, and copies of the report shall be delivered
to each member of the Parole Board or the Board of Pardons, as the case may be;
and in cases of pardons and commutations of sentence, a copy to the Governor.
§ 5135. Minors.
(a)
Any person under 18 years of age admitted pursuant to this chapter shall not be
admitted to the
(b)
The provisions of this chapter pertaining to the care and release of mentally
ill persons at the
§ 5136. Additional facilities for
adults.
The
Secretary of the Department of Health and Social Services, upon voluntary
application of a private or public hospital, may certify such hospital as an
appropriate facility for the detention, diagnosis, care and treatment of
mentally ill adults under this chapter. If so certified, on a case-by-case
basis, any such hospital shall be authorized to serve in addition to the
CHAPTER 51. THE DEPARTMENT OF HEALTH
AND SOCIAL SERVICES
Subchapter III. Mental Hygiene Clinic
§ 5141. Establishment and composition.
The
Department may maintain mental hygiene clinics which shall be composed of such
professional assistants as may be recommended by the Secretary.
§ 5142. Duties and powers of clinic.
(a)
The mental hygiene clinic shall examine all public or private school children
within the State who are 2 or more years retarded, when so requested by the
superintendent or other executive head of such school.
(b)
The clinic shall likewise undertake and carry on a continuous survey and
examination of all mentally retarded persons.
(c)
The clinic may observe, examine, study and treat the inmates of any institution
supported in whole or in part by the State, or any county thereof and may
likewise observe, examine, study and treat any person charged with any offense
in, or subject to the jurisdiction of, any court within the State, when requested
to do so by a judge or judges thereof.
(d)
The clinic may likewise, when requested, extend its psychiatric services to all
social agencies of the State, general hospitals and all institutions for the
mentally retarded for the purpose of the discovery and treatment of mental
disorders.
(e)
The clinic may, through the State Psychiatrist and Criminologist, apply for the
commitment of any person to the
CHAPTER 51. THE DEPARTMENT OF HEALTH
AND SOCIAL SERVICES
Subchapter IV. Criminally Mentally Ill
§ 5151. Establishment of department for
criminally mentally ill.
The
Department shall establish at the
§ 5152. Commitment by courts.
(a)
All criminally mentally ill adults shall be admitted to the department for the
criminally insane at the
(b)
All criminally inclined juveniles shall be committed to treatment programs for
criminally inclined juveniles established by the Department of Services for
Children, Youth and Their Families when committed by any court of this State
having jurisdiction over the persons committed.
§ 5153. Commitment from other
institutions.
(a)
The governing authorities of any institution of this State, to which an adult
who classifies for admission under the terms of this subchapter already has
been committed, may petition any court of competent jurisdiction in the State
praying an order to remove an inmate of the institution to the department for
criminally mentally ill at the
(b)
The governing authorities of any institution of this State, to which a juvenile
classifies for admission under the terms of this subchapter already has been
committed, may petition any court of competent jurisdiction in the State
praying an order to remove an inmate of the institution to an appropriate
juvenile facility in accordance with the regulations and policies promulgated
by the Department of Services for Children, Youth and Their Families. Upon the
recommendation of the Secretary of the Department of Services for Children,
Youth and Their Families and after such hearing as the court deems proper, any
court of competent jurisdiction in the State may order such criminally inclined
juvenile to be committed to the Department of Services for Children, Youth and
Their Families for treatment in an appropriate facility.
§ 5154. Liability for cost of
maintenance and care.
The
expenses of the removal of a criminally mentally ill adult or a criminally
inclined juvenile and of the adult's or juvenile's admission to a hospital
under this subchapter, and the charges and expense for the maintenance and care
at such hospital shall be paid by the institution which had charge of such
case. Where such persons are committed by the proper courts otherwise than from
an institution of the State, the State Treasurer shall pay such hospital for
such removal, admission, maintenance and care. If any such criminally mentally
ill adult or criminally inclined juvenile has any real or personal estate, the
Department of Health and Social Services or the Department of Services for
Children, Youth and Their Families shall have, for the expenses and charges
incurred, the same remedy as is provided in § 5127 of this title.
CHAPTER 51. THE DEPARTMENT OF HEALTH
AND SOCIAL SERVICES
Subchapter V. Mental Health Patients'
Bill of Rights
§ 5161. Rights of patients in mental
health hospitals or residential centers.
(a)
As used in this section:
(1) "Department" means the Department of
Health and Social Services, except that Department means the Department of
Services for Children, Youth and Their Families for facilities certified under
§ § 5135 and 5001(2) of this title.
(2) For purposes of persons admitted pursuant to
Chapter 55 of this title, the term "treatment" includes habilitation
and the term "patient" means resident.
(b)
Any hospital or residential center that admits persons pursuant to Chapter 50,
51, or 55 of this title shall prominently post in English and Spanish the list
of patients rights set forth in this subsection. In addition to the posting,
the Department shall distribute a copy of the list to each patient and to other
persons, as provided in Department regulations. Each patient shall have the
following rights:
(1) Each patient shall receive care and treatment
suited to the patient's needs, skillfully, safely and humanely administered
with full respect for the patient's dignity and personal integrity. The care
and treatment shall be provided in a setting and under conditions that restrict
the patient's personal liberty only to the extent required by the patient's
treatment needs, applicable law and judicial orders.
(2) Each patient shall have an outcome-oriented,
individualized, written treatment plan; treatment based on such plan; periodic
review or revision of the plan consistent with treatment progress; and a
description of treatment and other support services that may be needed upon
discharge.
(3) Each patient, and, if the patient is a minor, the
patient's parents or legal guardian shall have the right to ongoing
participation in a manner appropriate to the patient's capabilities, in the
development and revision of an individualized treatment plan. In furtherance of
this right, each patient, and, if the patient is a minor, the patient's parents
or legal guardian shall minimally be provided with a reasonable explanation of
the following:
a. The patient's general mental condition and, if a
facility has provided a physical examination, the patient's general physical
condition;
b. The objectives of treatment and the reasons why a
particular treatment is considered appropriate;
c. The expected benefits and risks of recommended
treatments, including all significant potential adverse effects and the steps
which may be taken to obviate or ameliorate such effects;
d. The nature, duration and expected benefits and
risks of any alternative treatments that are
available.
(4) Prior to discharge, the facility shall prepare a
written continuing care plan developed in consultation with interdisciplinary
staff, anticipated post-discharge providers and the patient, and, if the
patient is a minor, with the patient's parents or legal guardian. At a minimum,
Departmental community-based services staff shall be consulted for adult
patients in Departmental facilities. The continuing care plan shall include:
a. A realistic assessment of the patient's
post-discharge social, financial, vocational, housing
and treatment needs;
b. Identification of available support services and
provider linkages necessary to meet the assessed needs; and
c. Identification and a timetable of discrete, predischarge activities necessary to promote the patient's
successful transition to the community-based services system or to another
appropriate post-discharge setting.
(5) Absent a patient's informed, voluntary, written
consent to a mode or course of treatment, each patient shall have the right not
to receive the mode or course of treatment established pursuant to a treatment
plan, except as follows:
a. During an emergency situation, if such treatment
is pursuant to and documented contemporaneously by the written order of a
physician; or
b. As authorized under applicable law or court order
in the case of a person involuntarily committed to the facility; or
c. In the case of a minor, as authorized by a parent
or legal guardian.
(6) Each patient shall have the right to be free from
the following:
a. Abuse, mistreatment and neglect, as proscribed by
Chapters 9 and 11 of this title.
b. Unjustifiable force, as defined by 11
c. Seclusion, physical restraint, drugs or other
interventions administered primarily for purposes of staff convenience;
provided, however, that restraint or seclusion may be administered pursuant to
and documented contemporaneously by the written order of an authorized mental
health professional to the extent necessary to prevent physical harm to self or
others.
(7) Each patient shall be advised of the availability
of any internal and external systems for reporting abuse, neglect and
mistreatment, including those established by Chapters 9 and 11 of this title.
(8) The hospital or residential center shall require:
a. Careful reexamination and evaluation of each
patient not less than every 6 months;
b. Periodic physical examination of each patient by a
physician at least once a year;
c. An order of a staff member, operating within the
scope of a professional authority and based upon appropriate examination,
before any treatment is administered;
d. Written, informed consent by the patient, or, if
the patient is a minor, a parent or legal guardian, for surgery,
electro-convulsive therapy, major medical treatment in the nature of surgery or
the use of research, investigational or experimental drugs or procedures; and
e. Notation in the patient's clinical record, signed
by the personnel involved, of periodic examinations, individualized treatment
programs, evaluations, reevaluations and of orders for treatment and specific
therapies.
(9) Each patient shall be entitled to communicate
freely and privately with persons and groups inside and outside the facility,
consistent with the safety and welfare of other patients and with avoiding
serious harassment of others. Correspondence initiated to others by the patient
shall be sent along promptly without being opened. The facility shall establish
procedures to insure that patients have a full opportunity to conduct correspondence,
to have reasonable and confidential access to telephones, and, subject to
treatment team limitation based on a clinical determination of serious patient
harm, to have frequent and convenient opportunities to meet with visitors. Any
treatment team's limitation of such patient communication shall be documented
in the patient's treatment plan and shall include the team's specific
rationale.
(10) A patient's right to retain reasonable personal
belongings shall be respected, except that the facility may temporarily retain
custody of a patient's personal property for the patient's protection;
provided, that such property is used or conserved for the support of the
patient. The patient is entitled to a receipt for any personal property over
which the facility retains temporary custody. Nothing in this paragraph shall
be construed to relieve any patient from the obligations arising out of § 5127
of this title.
(11) Each patient shall have the right to participate
in available vocational rehabilitation, community care or release programs
consistent with the patient's treatment plan. It is recognized that work
programs can be therapeutic and, therefore, may be included in a patient's
individualized treatment plan provided that the following conditions are met:
a. The facility must document in the individualized
treatment plan the patient's need or desire for work;
b. The individualized treatment plan must specify the
nature of the work to be performed and whether the work is to be voluntary or
paid;
c. The patient must consent to the work program
described in the treatment plan; and
d. The patient must be aware that the patient may
withdraw consent to the work program at any time.
To the extent specifically authorized by the
Department of Labor, workers' compensation law and unemployment insurance law
shall not apply to any patient engaged in work programs pursuant to this
paragraph.
(12) Each patient who, but for a mental disability,
would be entitled to attend a public school shall receive the same training and
education that the patient would otherwise be entitled to receive in the
patient's local school district. The facility shall arrange for such training
and education, which shall be consistent with the mental ability of the
patient, and shall arrange for suitable resources and equipment to address the
needs of those patients with visual or hearing impairments.
(13) The hospital or residential center shall
maintain a clinical record for each patient admitted. The clinical record shall
contain complete information on all matters relating to the admission, legal
status, care and treatment of the patient, and shall include all pertinent
documents relating to the patient. Copies of informed consent forms signed by
patients or guardians pursuant to paragraph (8)d of
this subsection shall be kept with each patient's ward chart. The Department
shall, by regulation, determine the scope and method of recording information
maintained on the clinical records. Those regulations shall ensure the
completeness and accuracy of data pertaining to admission, legal matters
affecting the patient, records and notations of the course of care and
treatment, therapies, the patient's progress if in research and adverse or
other reactions thereto, restrictions on the patient's rights, periodic
examinations and other information required by the Department.
No information reported to the Department and no
clinical records maintained with respect to patients shall be public records.
Such information and records shall not be released to any person or agency
outside of the Department except in conformity with existing law and as
follows:
a. To patients, or, if the patient is a minor, to a
parent or legal guardian, except that access to specific records may be refused
when a clinical determination is made and documented in the patient's
individualized treatment plan that such access would be seriously detrimental
to the patient's health or treatment progress. In the latter case, such
material may be made available to a licensed mental health professional
selected by the patient, and that professional may, in the exercise of
professional judgment, provide the patient with access to any or all parts of
the denied material or otherwise disclose the information contained therein. Whenever
records are released in accordance with this paragraph, the recipient shall
have the right to review the record with a mental health professional furnished
by the facility;
b. Pursuant to an order of a court of record;
c. To attorneys representing the patient;
d. To rights-protection agencies otherwise entitled
to access under applicable federal or state law or implementing interagency
agreement, including the Office of the Long-Term Care Ombudsman and designated
programs under the federal Protection and Advocacy for Mentally Ill Individuals
Act ›42 U.S.C. § 10801 et seq.| and Developmental Disabilities Assistance and
Bill of Rights Act ›42 U.S.C. § 6000 et seq.|, as amended;
e. With the consent of the patient, or, if the
patient is a minor, with the consent of a parent or legal guardian;
f. To Departmental contractors to the extent
necessary for professional consultation or services;
g. To the State Bureau of Identification pursuant to
subsection (14) of this section and 11
h. As otherwise required by law.
(14) The Delaware Psychiatric Center and any other
hospital as defined in § 5001(2) of this title shall submit to the State Bureau
of Identification, pursuant to § 1448A of Title 11, the name, date of birth and
Social Security number of any adult who is involuntarily committed to such
facility.
(15) Each patient, and, if the patient is a minor,
the minor's parent or legal guardian, shall have the right to assert grievances
with respect to infringement of the rights described in this section, including
the right to have such grievances considered in a fair, timely and impartial
grievance procedure provided for or by the facility. Without diminution of such
right, the facility may also establish a supplemental mediation system to
resolve grievances.
(16) Each patient, and, if the patient is a minor,
the minor's parent or legal guardian, shall have a right to confidential access
to any internal rights protection office established by the facility and to any
state or federally authorized mental health ombudsperson or rights protection
agency.
(17) Each patient shall have the right to exercise
the rights described in this section without reprisal, including reprisal in
the form of denial of any appropriate, available treatment.
(18) Nothing in this section or in any rule or
regulation adopted pursuant thereto shall be construed to deny treatment by
spiritual means through prayer for any patient detained for evaluation or
treatment who desires spiritual treatment, or to a minor, if the minor's parent
or guardian desires such treatment.
(19) Consistent with the nature of the right and
applicable law, a right may devolve to the patient's guardian.
(20) The rights described above are in addition to,
and not in derogation of, any other statutory or constitutional rights.
§ 5162. Enforcement of rights; Court of
Chancery.
This
subchapter shall be enforceable by the Attorney General or by any interested
citizen. Within the meaning of this section, "interested citizen"
shall include any individual, voluntary association of individuals or corporate
body having a bona fide interest in furthering enforcement of the rights
created by this subchapter. Notwithstanding 10 Del. C. § 342, the Court of
Chancery shall have jurisdiction over all actions, including those requesting declaratory
relief, to enforce or resolve disputes concerning the rights arising out of
this subchapter.
CHAPTER 54. MENTAL HEALTH SERVICES
PROVIDERS
§ 5401. Definitions.
Except
where the context indicates otherwise, as used in this chapter:
(1)
"Licensed psychologist" means "licensed psychologist" as
defined by Chapter 35 of Title 24.
(2)
"Licensed clinical social worker" means "licensed clinical
social worker" as defined by Chapter 39 of Title 24.
(3)
"Mental health services provider" means any physician, registered
professional nurse, licensed counselor working in the field of mental health,
psychologists and licensed clinical social workers as defined in this chapter.
(4)
"Patient" means any person with whom the mental health services
provider has established a patient-care provider relationship.
(5)
"Physician" means "physician" as defined by Chapter 17 of
Title 24.
(6)
"Licensed counselor working in the field of mental health" means
"licensed counselor working in the field of mental health" as defined
by Chapter 30 of Title 24.
(7)
"Registered professional nurse" means "registered professional
nurse" as defined by Chapter 19 of Title 24.
§ 5402. Duty of mental health services
providers to take precautions against threatened patient violence; duty to
warn.
(a)
Except as provided in subsection (d) of this section, no cause of action shall
lie against a mental health services provider, nor shall legal liability be
imposed, for inability to prevent harm to person or property caused by a
patient unless:
(1) The patient has communicated to the mental health
services provider an explicit and imminent threat to kill or seriously injure a
clearly identified victim or victims, or to commit a specific violent act or to
destroy property under circumstances which could easily lead to serious
personal injury or death, and the patient has an apparent intent and ability to
carry out the threat; and
(2) The mental health services provider fails to take
the precautions specified in subsection (b) of this section in an attempt to
prevent the threatened harm.
(b)
Any duty owed by a mental health services provider to take reasonable
precautions to prevent harm threatened by a patient is discharged, as a matter
of law, if the mental health services provider, in a timely manner:
(1) Notifies a law enforcement agency near where the
potential victim resides, or notifies a law enforcement agency near where the
patient resides, and communicates the threat of death or serious bodily injury
to the clearly identified victim or victims; or
(2) Arranges for the patient's immediate voluntary or
involuntary hospitalization.
(c)
Whenever a patient has explicitly threatened to cause serious harm to a person
or property, or a mental health services provider otherwise concludes that the
patient is likely to do so and the mental health services provider, for the
purpose of reducing the risk of harm, discloses any confidential communication
made by or relating to the patient, no cause of action, either criminal or
civil, shall lie against the mental health services provider for making such
disclosure.
(d)
Whenever a patient within the custodial responsibility of a hospital or other
facility has made or makes threats of the kind dealt with in subsection (a) of
this section, the mental health services provider and institution, agency or
hospital shall, prior to such patient's discharge, consider and evaluate
previously made threats made by such patient. Under such circumstances, the
mental health services provider may consider it prudent to inform appropriate
law enforcement agencies or the previously threatened party as a measure of
precaution. Subsections (a) and (c) of this section shall also apply to the
hospital or facility.
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