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KENTUCKY STATUTE

202A.006 TITLE

This chapter may be cited as the "Kentucky Mental Health Hospitalization Act."

202A.011 DEFINITIONS FOR CHAPTER

As used in this chapter, unless the context otherwise requires:

(1) "Authorized staff physician" means a physician who is a bona fide member of the hospital's medical staff;

(2) "Danger" or "threat of danger to self, family or others" means substantial physical harm or threat of substantial physical harm upon self, family, or others, including actions which deprive self, family, or others of the basic means of survival including provision for reasonable shelter, food or clothing;

(3) "Cabinet" means the Kentucky Cabinet for Human Resources;

(4) "Psychiatric facility" means a crisis stabilization unit or any facility licensed by the cabinet and which provides inpatient, outpatient, psychosocial rehabilitation, emergency, and consultation and education services for the diagnosis and treatment of persons who have a mental illness;

(5) "Forensic psychiatric facility" means a mental institution or facility, or part thereof, designated by the secretary for the purpose and function of providing inpatient evaluation, care, and treatment for mentally ill or mentally retarded persons who have been charged with or convicted of a felony;

(6) "Hospital" means:

(a) A state mental hospital or institution or other licensed public or private hospital, institution, health care facility, or part thereof, approved by the Kentucky Cabinet for Human Resources as equipped to provide full-time residential care and treatment for mentally ill or mentally retarded persons;

(b) A hospital, institution, or health care facility of the government of the United States equipped to provide residential care and treatment for mentally ill or mentally retarded persons;

(7) "Judge" means any judge or justice of the Court of Justice or a trial commissioner of the District Court acting under authority of SCR 5.030;

(8) "Least restrictive alternative mode of treatment" means that treatment which will give a mentally ill individual a realistic opportunity to improve the individual's level of functioning, consistent with accepted professional practice in the least confining setting available;

(9) "Mentally ill person" means a person with substantially impaired capacity to use self-control, judgment or discretion in the conduct of the person's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior or emotional symptoms can be related to physiological, psychological, or social factors;

(10) "Patient" means a person under observation, care, or treatment in a hospital pursuant to the provisions of this chapter;

(11) "Petitioner" means a person who institutes a proceeding under this chapter;

(12) "Qualified mental health professional" means:

(a) A physician licensed under the laws of Kentucky to practice medicine or osteopathy, or a medical officer of the government of the United States while engaged in the performance of official duties;

(b) A psychiatrist licensed under the laws of Kentucky to practice medicine or osteopathy, or a medical officer of the government of the United States while engaged in the practice of official duties, who is certified or eligible to apply for certification by the American Board of Psychiatry and Neurology, Inc.;

(c) A psychologist licensed at the doctoral level or a psychologist or psychological associate certified at the master's level under the provisions of KRS Chapter 319 who has been designated by the Kentucky Board of Examiners of Psychology as competent to make examinations under this chapter;

(d) A licensed registered nurse with a master's degree in psychiatric nursing from an accredited institution and two (2) years of clinical experience with mentally ill persons, or a licensed registered nurse, with a bachelor's degree in nursing from an accredited institution, who is certified as a psychiatric and mental health nurse by the American Nurses Association and who has three (3) years of inpatient or outpatient clinical experience in psychiatric nursing and is currently employed by a hospital or forensic psychiatric facility licensed by the Commonwealth or a psychiatric unit of a general hospital or a private agency or company engaged in the provision of mental health services or a regional community mental health and mental retardation program; or

(e) A licensed clinical social worker licensed under the provisions of KRS 335.100, or a certified social worker licensed under the provisions of KRS 335.080 with three (3) years of inpatient or outpatient clinical experience in psychiatric social work and currently employed by a hospital or forensic psychiatric facility licensed by the Commonwealth or a psychiatric unit of a general hospital or a private agency or company engaged in the provision of mental health services or a regional community mental health and mental retardation program;

(13) "Residence" means legal residence as determined by applicable principles governing conflicts of law;

(14) "Respondent" means a person alleged in a hearing under this chapter to be a mentally ill or mentally retarded person;

(15) "Secretary" means the secretary of the Cabinet for Human Resources

202A.016 DUTY OF COUNTY ATTORNEY

In all proceedings under this chapter, it shall be the duty of the county attorney to assist the petitioner and represent the interest of the Commonwealth and to assist the court in its inquiry by the presentation of evidence.

202A.021 HOSPITALIZATION OF MINORS; ADMISSION OR DISCHARGE OF VOLUNTARY PATIENTS

(1) The hospitalization of minors alleged to be mentally ill, except those provided for in KRS Chapter 640, shall be governed by KRS Chapter 645.

(2) An authorized staff physician of a hospital may admit for observation, diagnosis, care and treatment any person who is mentally ill or who has symptoms of mental illness and who applies voluntarily therefor.

(3) An authorized staff physician of a hospital shall discharge any voluntary patient who has recovered or whose hospitalization the staff physician determines to be no longer necessary or advisable.

(4) A voluntary patient shall be released upon the patient's written request unless further detained under the applicable provisions of this chapter.

202A.026 CRITERIA FOR INVOLUNTARY HOSPITALIZATION

No person shall be involuntarily hospitalized unless such person is a mentally ill person:

(1) Who presents a danger or threat of danger to self, family or others as a result of the mental illness;

(3) For whom hospitalization is the least restrictive alternative mode of treatment presently available.


202A.028 HOSPITALIZATION BY COURT ORDER; TRANSPORTATION; RELEASE

(1) Following an examination by a qualified mental health professional and a certification by that professional that the person meets the criteria for involuntary hospitalization, a judge may order the person hospitalized for a period not to exceed seventy-two (72) hours, excluding weekends and holidays. For the purposes of this section, the qualified mental health professional shall be a staff member of a regional community mental health or mental retardation program.

(2) Any person who has been admitted to a hospital under subsection (1) of this section shall be released from the hospital within seventy-two (72) hours, excluding weekends and holidays, unless further held under the applicable provisions of this chapter.

(3) Any person admitted to a hospital under subsection (1) of this section or transferred to a hospital while ordered hospitalized under subsection (1) of this section shall be transported from the person's home county by the sheriff of that county or other peace officer as ordered by the court. The sheriff or other peace officer may, upon agreement of a person authorized by the peace officer, authorize the cabinet, a private agency on contract with the cabinet, or an ambulance service designated by the cabinet to transport the person to the hospital. The transportation costs of the sheriff, other peace officer, ambulance service, or other private agency on contract with the cabinet shall be paid by the cabinet in accordance with an administrative regulation promulgated by the cabinet, pursuant to KRS Chapter 13A.

(4) Any person released from the hospital under subsection (2) of this section shall be transported to the person's county of discharge by a sheriff or other peace officer, by an ambulance service designated by the cabinet, or by other appropriate means of transportation which is consistent with the treatment plan of that person. The transportation cost of transporting the patient to the patient's county of discharge when performed by a peace officer, ambulance service, or other private agency on contract with the cabinet shall be paid by the cabinet in accordance with an administrative regulation issued by the cabinet pursuant to KRS Chapter 13A.

(5) No person who has been held under subsection (1) of this section shall be held in jail pending evaluation and transportation to the hospital.

202A.031 SEVENTY-TWO HOUR EMERGENCY ADMISSION

(1) An authorized staff physician may order the admission of any person who is present at, or is presented at, a hospital. Within twenty-four (24) hours (excluding weekends and holidays) of the admission under this section, the authorized staff physician ordering the admission of the individual shall certify in the record of the individual that in his opinion the individual should be involuntarily hospitalized.

(2) Any individual who has been admitted to a hospital under subsection (1) of this section shall be released from the hospital within seventy-two (72) hours (excluding weekends and holidays) unless further detained under the applicable provisions of this chapter.

202A.041 WARRANTLESS ARREST AND SUBSEQUENT PROCEEDINGS

(1) Any peace officer who has reasonable grounds to believe that an individual is mentally ill and presents a danger or threat of danger to self, family, or others if not restrained shall take the individual into custody and transport the individual without unnecessary delay to a hospital or psychiatric facility designated by the cabinet for the purpose of an evaluation to be conducted by a qualified mental health professional. Upon transport of the person to the hospital or psychiatric facility, the peace officer shall provide written documentation which describes the behavior of the person which caused the peace officer to take the person into custody. If, after evaluation, the qualified mental health professional finds that the person does not meet the criteria for involuntary hospitalization, the person shall be released immediately and transported back to the person's home county by an appropriate means of transportation as provided in KRS 202A.101. If, after evaluation, the qualified mental health professional finds that the person meets the criteria for involuntary hospitalization, appropriate proceedings under this chapter shall be initiated. The person may be held pending certification by a qualified mental health professional and implementation of procedures as provided in KRS 202A.028, 202A.031, or 202A.051 for a period not to exceed eighteen (18) hours.

(2) If, after the evaluation, the qualified mental health professional finds that the person does not meet the criteria for involuntary hospitalization and the peace officer has probable cause to believe that the person has committed a criminal offense, the peace officer may swear out a warrant and take the arrested person without unnecessary delay before a judge.


202A.051 PROCEEDINGS FOR 60-DAY AND 360-DAY INVOLUNTARY HOSPITALIZATIONS;

(1) Proceedings for sixty (60) days or three hundred sixty (360) days of involuntary hospitalization of an individual shall be initiated by the filing of a verified petition in District Court.

(2) The petition and all subsequent court documents shall be entitled: "In the interest of (name of respondent)."

(3) The petition shall be filed by a qualified mental health professional, peace officer, county attorney, Commonwealth's attorney, spouse, relative, friend, or guardian of the individual concerning whom the petition is filed, or any other interested person.

(4) The petition shall set forth:

(a) Petitioner's relationship to the respondent;

(b) Respondent's name, residence, and current location, if known;

(c) The name and residence of respondent's parents, if living and if known, or respondent's legal guardian, if any and if known;

(d) The name and residence of respondent's husband or wife, if any and if known;

(e) The name and residence of the person having custody of the respondent, if any, or if no such person is known, the name and residence of a near relative or that the person is unknown;

(f) Petitioner's belief, including the factual basis therefor, that the respondent is mentally ill and presents a danger or threat of danger to self, family or others if not restrained; and

(g) If the petition seeks a three hundred sixty (360) day involuntary hospitalization of the respondent, the petition shall further set forth that the respondent has been hospitalized in a hospital or a forensic psychiatric facility for a period of thirty (30) days under the provisions of this chapter or KRS Chapter 504 within the preceding six (6) months.

(5) Upon receipt of the petition, the court shall examine the petitioner under oath as to the contents of the petition. If the petitioner is a qualified mental health professional, the court may dispense with the examination.

(6) If after reviewing the allegations contained in the petition and examining the petitioner under oath, it appears to the court that there is probable cause to believe the respondent should be involuntarily hospitalized, the court shall, unless either the court or one (1) of the parties objects, implement the procedures provided in KRS 202A.028, and order the individual to be examined without unnecessary delay by a qualified mental health professional. If the person is not being held under the provisions of this chapter, the court may order that the sheriff of the county or other peace officer transport the person to a hospital or psychiatric facility designated by the cabinet for the purpose of the evaluation. The sheriff or other peace officer may, upon agreement of a person authorized by the peace officer, authorize the cabinet, a private agency on contract with the cabinet, or an ambulance service designated by the cabinet to transport the person to a hospital or psychiatric facility. Following that, the procedures as set forth in KRS 202A.028 shall be carried out. Otherwise, the court shall:

(a) Set a date for a preliminary hearing within six (6) days from the date of holding the person under the provisions of this section (excluding holidays and weekends) to determine if there is probable cause to believe the person should be involuntarily hospitalized;

(b) Notify the respondent, the legal guardian, if any, and if known, and the spouse, parents, or nearest relative or friend of the respondent concerning the allegations and contents of the petition and the date and purpose of the preliminary hearing; and the name, address, and telephone number of the attorney appointed to represent the respondent; and

(c) Cause the respondent to be examined without unnecessary delay by two (2) qualified mental health professionals, at least one (1) of whom is a physician. The qualified mental health professionals shall certify within twenty-four (24) hours (excluding weekends and holidays) their findings.

(7) (a) If the respondent is being presently held under the provisions of this chapter, the court may order further holding of the respondent to accomplish the examination ordered by the court.

(b) If the respondent is not being presently held under the provisions of this chapter, the court may order that the sheriff of the county or a peace officer transport the respondent to a hospital or a psychiatric facility designated by the cabinet so that the respondent shall be examined without unnecessary delay by two (2) qualified mental health professionals, at least one (1) of whom is a physician. The sheriff or other peace officer may authorize, upon agreement of a person authorized by the peace officer, the cabinet, a private agency on contract with the cabinet, or an ambulance service designated by the cabinet to transport the person to a hospital or psychiatric facility.

(8) When the court is authorized to issue an order that the respondent be transported to a hospital or psychiatric facility, the court may, in its discretion, issue a summons. A summons so issued shall be directed to the respondent, shall command the respondent to appear at a time and place therein specified where the respondent shall be there examined by two (2) qualified mental health professionals, at least one (1) of whom is a physician, and shall command the respondent's appearance at the preliminary hearing. If a respondent who has been summoned fails to appear for such examination or at the preliminary hearing, the court may order that the sheriff of the county or a peace officer transport the respondent to a hospital or psychiatric facility designated by the cabinet for the purpose of an evaluation.

(9) If upon completion of the preliminary hearing, the court finds there is probable cause to believe the respondent should be involuntarily hospitalized, the court shall order a final hearing within twenty-one (21) days from the date of holding the respondent under the provisions of this section to determine if the respondent should be involuntarily hospitalized.

(10) If the court finds there is no probable cause, the proceedings against the respondent shall be dismissed, and the respondent shall be released from any holding.

(11) If upon completion of the final hearing, the court finds the respondent should be involuntarily hospitalized, the court shall order the respondent hospitalized in a hospital for a period not to exceed sixty (60) consecutive days from the date of the court order or a period not to exceed three hundred sixty (360) consecutive days from the date of the court order, whatever was the period of time that was requested in the petition.


202A.053 VENUE

(1) A respondent who has been ordered involuntarily hospitalized following the preliminary hearing shall have venue for all subsequent proceedings, including the final hearing, transferred to the court of the county where the respondent is hospitalized.

(2) The court of the county where the preliminary hearing was held may, upon its own motion, or shall, upon motion of one (1) of the parties, retain venue over proceedings subsequent to the preliminary hearing.

202A.056 CERTIFICATE CONTENTS; FEE

(1) The certificate referred to in this chapter shall be in the form prescribed by the cabinet. The certificate shall state that the respondent has been examined by each of the qualified mental health professionals making the certificate within twenty-four (24) hours (excluding weekends and holidays) prior to the date of the certificate. It shall state the facts and circumstances upon which the judgment of the examining physician is based and shall be sworn to before a notary or the clerk or judge of the court.

(2) The examiner shall be entitled to a fee for such examination and certification, to be paid by the county in which the petition is filed, upon a certified copy of an order of allowance made by the court holding the hearing.

202A.061 TWO CERTIFICATIONS REQUIRED

In any proceeding for involuntary hospitalization under the applicable provisions of this chapter, if the criteria for involuntary hospitalization are not certified by at least two (2) examining qualified mental health professionals, the court shall, without taking any further action, terminate the proceedings and order the release of the person. The qualified mental health professionals shall certify to the court within twenty-four (24) hours (excluding weekends and holidays) of the examination, their findings and opinions as to whether the person shall be involuntarily hospitalized.

202A.066 QUALIFIED MENTAL HEALTH PROFESSIONAL RETAINED BY RESPONDENT

A qualified mental health professional retained by the respondent shall be permitted to witness and participate in any examination of the respondent.

202A.071 TIMING OF PRELIMINARY AND FINAL HEARINGS

(1) The preliminary hearing shall be held not later than six (6) days (excluding weekends and holidays) from the time of respondent's holding under these proceedings. If the respondent is not held under these proceedings, the preliminary hearing shall be held not later than six (6) days (excluding weekends and holidays) from the time of the examination of the respondent.

(2) The final hearing shall be held within twenty-one (21) days of the date of the holding or from the date of the examination, if not held.


202A.076 CONDUCT OF HEARINGS

(1) The preliminary hearing need not be formal and may include the receiving of the qualified mental health professionals' reports as evidence. The hearing may be held by the court in chambers, at a hospital, or other suitable place. The respondent shall be afforded an opportunity to testify, to present, and cross-examine witnesses who appear and testify against him. The court may exclude all persons not necessary for the conduct of the hearing. The respondent and his attorney may waive respondent's right to a preliminary hearing.

(2) The final hearing may be conducted in an informal manner, consistent with orderly procedures, and in a physical setting not likely to have a harmful effect on the mental or physical health of the respondent. The hearing may be held by the court in chambers, at a hospital, or other suitable place. The respondent shall be afforded an opportunity to testify, to present, and cross- examine witnesses against him. The manner of proceeding and rules of evidence shall be the same as those in any criminal proceeding including the burden of proof beyond a reasonable doubt. Proceedings shall be heard by a judge unless a party requests a jury trial. Neither the respondent nor the respondent's attorney may waive the respondent's right to a final hearing.

202A.081 COURT-ORDERED COMMUNITY-BASED OUTPATIENT TREATMENT

(1) Following the preliminary hearing but prior to the completion of the final hearing, the court may order the person held in a hospital approved by the cabinet for such purpose for the committing judicial district, or released, upon application and agreement of the parties, for the purpose of community- based outpatient treatment. No person held under this section shall be held in jail unless criminal charges are also pending.

(2) A hospital shall discharge a patient there held and notify the court and attorneys of record if any authorized staff physician determines that the patient no longer meets the criteria for involuntary hospitalization.

(3) If a patient is discharged by the hospital pursuant to subsection (2) of this section, then the proceedings against the patient shall be dismissed.

(4) The release of the person pursuant to subsection (1) of this section for the purpose of community-based outpatient treatment does not terminate the proceedings against the person, and the court ordering such release may order the immediate holding of the person at any time with or without notice if the court believes from an affidavit filed with the court that it is to the best interest of the person or others that the person be held pending the final hearing, which shall be held within twenty-one (21) days of the person's further holding.

(5) If the person is released pursuant to subsection (1) of this section for the purpose of community-based outpatient treatment, the final hearing may be continued for a period not to exceed sixty (60) days if a provider of outpatient care accepts the respondent for specified outpatient treatment. Community-based outpatient treatment may be ordered for an additional period not to exceed sixty (60) days upon application and agreement of the parties.

202A.091 CONFIDENTIALITY OF COURT RECORDS; EXPUNGEMENT

(1) The court records of a respondent made in all proceedings pursuant to KRS Chapter 202A are hereby declared to be confidential and shall not be open to the general public for inspection except when such disclosure is provided in KRS 202A.016.

(2) Following the discharge of a respondent from a treatment facility or the issuance of a court order denying a petition for a commitment, a respondent may at any time move to have all court records pertaining to the proceedings expunged from the files of the court. The county attorney shall be given notice of any such motion and shall have five (5) days in which to respond to same or request a hearing thereon.

(3) Any person seeking information contained in the court files or the court records of proceedings involving persons under this chapter may file a written motion in the cause setting out why the information is needed. A District Judge may issue an order to disclose the information sought if he finds such order is appropriate under the circumstances and if he finds it is in the best interest of the person or of the public to have such information disclosed.


202A.096 DISCLOSURE OF COMMUNICATIONS

There shall be no privilege as to any relevant communications between qualified mental health professionals and patients. Qualified mental health professionals are authorized to disclose communications relating to diagnosis and treatment of the patient's mental condition in proceedings under this chapter.

202A.101 NOTIFICATION OF RECEIVING HOSPITAL OR PSYCHIATRIC FACILITY; TRANSPORTATION OF PATIENT

(1) The court which orders any person to the receiving hospital or psychiatric facility, under the provisions of this chapter, shall at once notify the receiving hospital or psychiatric facility that such order has been made, advising of the sex and condition of the person.

(2) After the facility has been so notified, the court shall order the sheriff of the county or other peace officer to transport the patient within forty- eight (48) hours (excluding weekends and holidays) from the county in which the person is located to the hospital or psychiatric facility designated by the cabinet. The sheriff or other peace officer may, upon agreement of a person authorized by the peace officer, authorize the cabinet, a private agency on contract with the cabinet, or an ambulance service designated by the cabinet to transport the person to the hospital.

(3) The transportation costs of transporting a person to a hospital or psychiatric facility, when performed by a peace officer, an ambulance service, or other private agency on contract with the cabinet shall be paid by the cabinet in accordance with administrative regulation promulgated by the cabinet under the provisions of KRS Chapter 13A.

(4) In returning any patient to the county from which the patient is sent, the transportation cost of the sheriff or other peace officer, the ambulance service, or the other agency on contract with the cabinet transporting the patient shall be paid as provided in KRS 202A.028(4), when necessary.

(5) Whenever an individual is involuntarily hospitalized by a court order the patient shall be transported to the hospital designated by the cabinet and accompanied by the following documents:

(a) A copy of the petition for involuntary hospitalization, unless hospitalization takes place pursuant to KRS202A.041;

(b) The certificate of qualified mental health professionals; and

(c) The order of involuntary hospitalization.

(6) The hospital may refuse to receive any person who has been ordered to be involuntarily hospitalized by a court order if the papers presented with such person at the hospital do not comply with the provisions of this chapter or if it does not receive notification of the order of involuntary hospitalization as required by this chapter.

202A.121 RIGHT TO COUNSEL

Upon the appearance of the person detained pursuant to KRS 202A.041 or upon the filing of a petition pursuant to KRS202A.051, the court shall appoint an attorney to represent the respondent with such appointment and representation to continue unless the respondent retains private counsel. The appointed attorney shall be forthwith notified by the clerk of the allegations in the petition and the date and purpose of the preliminary hearing.

202A.131 RIGHT TO BE PRESENT

The respondent shall be present at all hearings unless the respondent and his attorney intelligently waive respondent's right to be present, or unless the court makes a specific finding after the respondent has been brought to the place of the hearing that the respondent should be removed from the hearing because his conduct is so disruptive that the proceedings cannot continue in any reasonable manner.

202A.161 TIMING OF INITIAL EXAMINATION AND REPORT

Any person admitted to a hospital pursuant to the provisions of this chapter shall be initially examined by an authorized staff physician of the hospital as soon as practicable but not later than thirty-six (36) hours (excluding weekends and holidays) and a report entered into the medical record not later than forty-eight (48) hours (excluding weekends and holidays) after his admission.

202A.171 WHEN DISCHARGE IS REQUIRED

An authorized staff physician of a hospital shall discharge an involuntary patient when he no longer meets the criteria for involuntary hospitalization.

202A.181 CONVALESCENT LEAVE STATUS

(1) An authorized staff physician may release an involuntary patient on convalescent leave status when the physician concludes that the patient would not present a danger or a threat of danger to self or others if provided with continued medical supervision in a less restrictive alternative mode of treatment. Release on convalescent leave status shall include notification to the hospitalizing court. Release on convalescent leave status does not terminate the involuntary hospitalization order and shall include provisions for the development of a treatment plan jointly by the hospital and by a provider of outpatient care for follow-up care by the provider and for the continual monitoring of that patient's condition by the provider.

(2) The hospital from which such patient is given convalescent leave status may at any time readmit the patient without additional court proceedings. If there is reason to believe that it is to the best interest of the patient to be rehospitalized, the secretary or an authorized staff physician of the hospital may issue an order for the immediate rehospitalization of the patient. Such an order, if not voluntarily complied with, shall, upon the endorsement by a judge of any court of the county in which the patient is a resident or is present, authorize any health or police officer to take the patient into custody and transport him to the responsible hospital. Notice of rehospitalization under this section shall be given to the originating court as soon as practicable and simultaneously with the order directing the rehospitalization if possible.

(3) Release on convalescent leave status shall not apply to persons held under hospitalization orders arising out of KRS Chapter 504 unless consent of the appropriate court is obtained.


202A.185 PEACE OFFICER AUTHORIZED TO ARREST AND RETURN PATIENT TO HOSPITAL

If a patient undergoing involuntary treatment on an inpatient basis is absent from the hospital without, or in excess of authorization from the hospital staff, the person in charge or that person's designee may contact the appropriate sheriff or other peace officers who shall take the patient into custody and return the patient to the hospital.

202A.191 RIGHTS OF HOSPITALIZED PATIENTS

(1) Each and every patient hospitalized under this chapter shall have the following rights:

(d) The right to maintain, keep, and use personal possessions and money;

(e) The right to receive visitors;

(f) The right to receive payment for work performed on behalf of the hospital;

(g) The right to refuse intrusive treatment subject to the provisions of KRS 202A.196;

(h) The right to be free from unreasonable use of seclusion and restraint;

(i) The right to seek relief from participating in their treatment plan.

(2) The secretary shall adopt rules and regulations for the proper administration and enforcement of this chapter. Such regulations shall be filed with the Legislative Research Commission as provided in KRS Chapter 13A.

202A.231 TRANSFER TO AGENCY OF UNITED STATES

(1) Upon receipt of a certificate of the United States Public Health Service or such other agency of the United States government that facilities are available for the care or treatment of any person heretofore hospitalized in any mental hospital or other institution in this state for the care of mentally ill persons and that such person is eligible for such care or treatment, the secretary, upon recommendation by any such hospital or institution in this state, is hereby authorized to cause the transfer of any such person to the United States Public Health Service or other agency of the United States government for care or treatment. Upon effecting any such transfer, the hospitalizing court shall be notified thereof by the secretary.

(2) Any person transferred as provided in this section shall be deemed to be placed in the custody of the United States Public Health Service or other agency of the United States government pursuant to the original hospitalization the same as if he had been originally so hospitalized.

(3) No person shall be transferred to any agency of the United States if he be confined pursuant to conviction of any felony or misdemeanor or if he has been acquitted of the charge solely on the ground of mental illness unless prior to transfer the court issuing the confining order shall enter an order to transfer after the motion and hearing. Any person transferred as provided in this section to any agency of the United States shall be hospitalized by such agency pursuant to the original order of hospitalization.

202A.241 USE OF LEAST RESTRICTIVE LEVEL OF RESTRAINT; GUIDELINGES FOR RESTRAINED PERSON’S NEED FOR PRIVACY AND ABILITY TO USE TELEPHONE

All individuals transporting or holding persons under KRS Chapter 202A, 202B, or 645, shall use the least restrictive level of restraint consistent with the person's needs. The Cabinet for Human Resources shall promulgate administrative regulations subject to the provisions of KRS Chapter 13A which shall include guidelines addressing the person's need for privacy, particularly when being restrained, and the person's ability to communicate by phone at the earliest opportunity available.

202A.251 PROHIBITION AGAINST DETENTION IN JAIL WITHOUT CRIMINAL CHARGES PENDING; CRIMINAL CHARGES NOT TO BE PLACED TO AVOID TRANSPORTATION

No person held under the provisions of this chapter shall be detained in jail unless criminal charges are also pending. No peace officer or any other person shall place criminal charges against a person who is mentally ill and in need of hospitalization pursuant to this chapter solely or primarily for the purpose of avoiding transporting the person to a hospital or psychiatric facility.


202A.301 EXEMPTION FROM PERSONAL LIABILITY

Persons carrying out duties or rendering professional opinions as provided in this chapter shall be free of personal liability for such actions, provided that such activities are performed in good faith within the scope of their professional duties and in a manner consistent with accepted professional practices.

202A.400 DUTY OF QUALIFIED MENTAL HEALTH PROFESSIONAL TO WARN INTENDED VICTIM OF PATIENT’S THREAT OF VIOLENCE

(1) No monetary liability and no cause of action shall arise against any qualified mental health professional for failing to predict, warn of or take precautions to provide protection from a patient's violent behavior, unless the patient has communicated to the qualified mental health professional an actual threat of physical violence against a clearly identified or reasonably identifiable victim, or unless the patient has communicated to the qualified mental health professional an actual threat of some specific violent act.

(2) The duty to warn of or to take reasonable precautions to provide protection from violent behavior arises only under the limited circumstances specified in subsection (1) of this section. The duty to warn a clearly or reasonably identifiable victim shall be discharged by the qualified mental health professional if reasonable efforts are made to communicate the threat to the victim, and to notify the police department closest to the patient's and the victim's residence of the threat of violence. When the patient has communicated to the qualified mental health professional an actual threat of some specific violent act and no particular victim is identifiable, the duty to warn has been discharged if reasonable efforts are made to communicate the threat to law enforcement authorities. The duty to take reasonable precaution to provide protection from violent behavior shall be satisfied if reasonable efforts are made to seek civil commitment of the patient under this chapter.

(3) No monetary liability and no cause of action shall arise against any qualified mental health professional for confidences disclosed to third parties in an effort to discharge a duty arising under subsection (1) of this section according to the provisions of subsection (2) of this section.

202A.991 PENALTIES

(1) Any person who willfully causes or conspires with or assists another in causing:

(a) The unwarranted hospitalization of any individual under the provisions of this chapter; or

(b) The denial of any individual of any of the rights accorded to him under the provisions of this chapter;

shall be guilty of a Class A misdemeanor.

(2) Any person who violates the confidentiality of any mental health record under the provisions of this chapter shall be guilty of a Class B misdemeanor.

 504.020 MENTAL ILLNESS OR RETARDATION

(1) A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or retardation, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

(2) As used in this chapter, the term "mental illness or retardation" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(3) A defendant may prove mental illness or retardation, as used in this section, in exculpation of criminal conduct.

504.030 DISPOSITION OF PERSON FOUND NOT GUILTY BY REASON OF INSANITY

(1) When a defendant is found not guilty by reason of insanity, the court shall conduct an involuntary hospitalization proceeding under KRS Chapter 202A or 202B.

(2) To facilitate the procedure established in subsection (1) of this section, the court may order the detention of the defendant for a period of ten (10) days to allow for proceedings to be initiated against the defendant for examination and possible detention pursuant to the provisions of KRS Chapter 202A or 202B.

504.060 DEFINITIONS FOR CHAPTER

As used in this chapter, unless the context otherwise requires:

(1) "Department" means the Department of Corrections;

(2) "Forensic psychiatric facility" means a mental institution or facility, or part thereof, designated by the secretary of the Cabinet for Human Resources for the purpose and function of providing inpatient evaluation, care, and treatment for mentally ill or mentally retarded persons who have been charged with or convicted of a felony;

(3) "Foreseeable future" means not more than three hundred sixty (360) days;

(4) "Incompetency to stand trial" means that, as a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense;

(5) "Insanity" means that, as a result of mental condition, lack of substantial capacity either to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law;

(6) "Mental illness" means substantially impaired capacity to use self-control, judgment, or discretion in the conduct of one's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological or social factors;

(7) "Mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period and is a condition which may exist concurrently with mental illness or insanity;

(8) "Psychiatrist" means a physician licensed pursuant to KRS Chapter 311 who is certified or eligible to apply for certification by the American Board of Psychiatry and Neurology, Inc.;

(9) "Psychologist" means a person licensed at the doctoral level pursuant to KRS Chapter 319 who has been designated by the Kentucky Board of Examiners of Psychology as competent to perform examinations;

(10) "Treatment" means medication or counseling, therapy, psychotherapy, and other professional services provided by or at the direction of psychologists or psychiatrists. "Treatment" shall not include electroshock therapy or psychosurgery; and

(11) "Treatment facility" means an institution or part thereof, approved by the Cabinet for Human Resources, which provides evaluation, care and treatment for insane, mentally ill or mentally retarded persons on an inpatient or outpatient basis, or both.

504.070 EVIDENCE BY DEFENDANT OF MENTAL ILLNESS OR INSANITY; EXAMINATION BY PSYCHOLOGIST OR PSYCHIATRIST BY COURT APPOINTMENT; REBUTTAL BY PROSECUTION

(1) A defendant who intends to introduce evidence of his mental illness or insanity at the time of the offense shall file written notice of his intention at least twenty (20) days before trial.

(2) The prosecution shall be granted reasonable time to move for examination of the defendant, or the court may order an examination on its own motion.

(3) If the court orders an examination, it shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition. If it appears the examination will not be completed before the trial date, the court may, on its own motion or on motion of either party, postpone the trial date until after the examination.

(4) No less than ten (10) days before trial, the prosecution shall file the names and addresses of witnesses it proposes to offer in rebuttal along with reports prepared by its witnesses.

504.080 COMMITMENT TO FACILITY FOR EXAMINATION; PERSONS TO BY PRESENT AT HEARING; TERMINATION OF CRIMINAL PROCEEDINGS NOT BAR TO CIVIL PROCEEDINGS

(1) A court may commit a defendant to a treatment facility or forensic psychiatric facility for up to thirty (30) days so that a psychologist or psychiatrist can examine, treat and report on the defendant's mental condition, except that if the defendant is charged with a felony and it is determined that inpatient examination or treatment is required, the defendant shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Human Resources or the secretary's designee determines that the defendant shall be examined and treated in another Cabinet for Human Resources facility.

(2) Reports on a defendant's mental condition prepared under this chapter shall be filed within ten (10) days of the examination.

(3) The defendant shall be present at any hearing on his mental condition unless he waives his right to be present.

(4) The examining psychologist or psychiatrist shall appear at any hearing on defendant's mental condition unless the defendant waives his right to have him appear.

(5) A psychologist or psychiatrist retained by the defendant shall be permitted to participate in any examination under this chapter.

(6) The Cabinet for Human Resources, if the cabinet or its agent or employee does not provide the examination, shall pay a reasonable fee to any psychologist or psychiatrist ordered to examine, treat and report on a defendant's mental condition.

(7) The termination of criminal proceedings under this chapter is not a bar to the institution of civil commitment proceedings.

504.085 FACILITY’S STANDING TO PETITION FOR CLARIFICATION OR MODIFICATION AND TO APPEAL

A forensic psychiatric facility or psychiatric facility as those terms are defined in KRS 202A.011 shall have standing to petition the court for any necessary clarification or modification of orders or judgments entered in proceedings under this chapter and to appeal from final orders or judgments entered in proceedings which have not complied with the provisions of this chapter. A copy shall be sent to the mentally-ill or mentally-retarded person who has been charged with or convicted of a felony and to the person's attorney of record, if any, of whatever pleadings are filed by the forensic psychiatric facility or psychiatric facility.

504.090 INCOMPETENT DEFENDANT NOT TO BE TRIED

No defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues.

504.100 APPOINTMENT BY COURT OF PSYCHOLOGIST OR PSYCHIATRIST DURING PROCEEDINGS

(1) If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition.

(2) The report of the psychologist or psychiatrist shall state whether or not he finds the defendant incompetent to stand trial. If he finds the defendant is incompetent, the report shall state:

(a) Whether there is a substantial probability of his attaining competency in the foreseeable future; and

(b) What type treatment and what type treatment facility the examiner recommends.

(3) After the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent to stand trial.

504.110 ALTERNATIVE HANDLING OF DEFENDANT DEPENDING ON WHETHER HE IS COMPETENT OR INCOMPETENT TO STAND TRIAL

(1) If the court finds the defendant incompetent to stand trial but there is a substantial probability he will attain competency in the foreseeable future, it shall commit the defendant to a treatment facility or a forensic psychiatric facility and order him to submit to treatment for sixty (60) days or until the psychologist or psychiatrist treating him finds him competent, whichever occurs first, except that if the defendant is charged with a felony, he shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Human Resources or the secretary's designee determines that the defendant shall be treated in another Cabinet for Human Resources facility. Within ten (10) days of that time, the court shall hold another hearing to determine whether or not the defendant is competent to stand trial.

(2) If the court finds the defendant incompetent to stand trial but there is no substantial probability he will attain competency in the foreseeable future, it shall conduct an involuntary hospitalization proceeding under KRS Chapter 202A or 202B.

(3) If the court finds the defendant competent to stand trial, the court shall continue the proceedings against the defendant.

504.120 VERDICTS OF JURY

In cases in which the defendant provides evidence at trial of his mental illness or insanity at the time of the offense, the jury or court may find the defendant:

(1) Guilty;

(2) Not guilty;

(3) Not guilty by reason of insanity at the time of the offense; or

(4) Guilty but mentally ill at the time of the offense.


504.130 GROUNDS FOR FINDING DEFENDANT GUILTY BUT MENTALLY ILL

504.150 SENTENCE FOR PERSON FOUND GUILTY BUT MENTALLY ILL

(1) The court shall sentence a defendant found guilty but mentally ill at the time of the offense to the local jail or to the Department of Corrections in the same manner as a defendant found guilty. If the defendant is found guilty but mentally ill, treatment shall be provided the defendant until the treating professional determines that the treatment is no longer necessary or until expiration of his sentence, whichever occurs first.

(2) Treatment shall be a condition of probation, shock probation, conditional discharge, parole, or conditional release so long as the defendant requires treatment for his mental illness in the opinion of his treating professional.

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