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Last updated December 2003
CHAPTER
21 – MENTALLY ILL
Part
1. Treatment of the Seriously Mentally Ill
53-21-101. Purpose. The purpose of this part is to:
(1) secure for each person who may be suffering from a
mental disorder and requiring commitment the care and treatment suited to the
needs of the person and to ensure that the care and treatment are skillfully
and humanely administered with full respect for the person's dignity and
personal integrity;
(2) accomplish this goal whenever possible in a
community-based setting;
(3) accomplish this goal in an institutionalized setting
only when less restrictive alternatives are unavailable or inadequate and only
when a person is suffering from a mental disorder and requires commitment; and
(4) ensure that due process of law
is accorded any person coming under the provisions of this part.
53-21-102. Definitions. As used in this part, the following definitions
apply:
(1) "Abuse" means any willful, negligent, or
reckless mental, physical, sexual, or verbal mistreatment or maltreatment or
misappropriation of personal property of any person receiving treatment in a
mental health facility that insults the psychosocial, physical, or sexual
integrity of any person receiving treatment in a mental health facility.
(2) "Behavioral health inpatient facility" means a
licensed facility of 16 beds or less designated by the department that:
(a) may be a freestanding licensed hospital or a distinct part of another
licensed hospital and that is capable of providing inpatient psychiatric
services, including services to persons with mental illness and co-occurring
chemical dependency; and
(b) has
contracted with the department to provide services to persons who have been
involuntarily committed for care and treatment of a mental disorder pursuant to
this title.
(3) "Board" or "mental disabilities board of
visitors" means the mental disabilities board of visitors created by
2-15-211.
(4) "Commitment" means an order by a court
requiring an individual to receive treatment for a mental disorder.
(5) "Court" means any district court of the state of
(6) "Department" means the department of public health and human
services provided for in
(7) "Emergency situation" means a situation in which any person is in
imminent danger of death or bodily harm from the activity of a person who
appears to be suffering from a mental disorder and appears to require
commitment.
(8) "Friend of respondent" means any person willing and able to
assist a person suffering from a mental disorder and requiring commitment or a
person alleged to be suffering from a mental disorder and requiring commitment
in dealing with legal proceedings, including consultation with legal counsel
and others. The friend of respondent may be the next of kin, the person's
conservator or legal guardian, if any, representatives of a charitable or
religious organization, or any other person appointed by the court to perform
the functions of a friend of respondent set out in this part. Only one person
may at any one time be the friend of respondent within the meaning of this
part. In appointing a friend of respondent, the court shall consider the
preference of the respondent. The court may at any time, for good cause, change
its designation of the friend of respondent.
(9) (a) "Mental disorder" means any organic,
mental, or emotional impairment that has substantial adverse effects on an
individual's cognitive or volitional functions.
(b) The term does not include:
(i) addiction to drugs or alcohol;
(ii) drug
or alcohol intoxication;
(iii) mental
retardation; or
(iv) epilepsy.
(10) "Mental health facility" or "facility" means the state
hospital, the Montana mental health nursing care center, or a hospital, a
behavioral health inpatient facility, a mental health center, a residential
treatment facility, or a residential treatment center licensed or certified by
the department that provides treatment to children or adults with a mental
disorder. A correctional institution or facility or jail is not a mental health
facility within the meaning of this part.
(11) "Mental health professional" means:
(a) a certified professional person;
(b) a physician licensed under Title 37, chapter 3;
(c) a professional counselor licensed under Title 37,
chapter 23;
(d) a psychologist licensed under Title 37, chapter
17;
(e) a social worker licensed under Title 37, chapter
22; or
(f) an advanced practice registered nurse, as provided
for in 37-8-202, with a clinical specialty in psychiatric mental health
nursing.
(12) (a) "Neglect" means failure to provide
for the biological and psychosocial needs of any person receiving treatment in
a mental health facility, failure to report abuse, or failure to exercise
supervisory responsibilities to protect patients from abuse and neglect.
(b) The term includes but is not limited to:
(i) deprivation of food,
shelter, appropriate clothing, nursing care, or other services;
(ii) failure to follow a prescribed plan of care and
treatment; or
(iii) failure to respond to a person in an emergency
situation by indifference, carelessness, or intention.
(13) "Next of kin" includes but is not limited to the spouse,
parents, adult children, and adult brothers and sisters of a person.
(14) "Patient" means a person committed by the court for treatment
for any period of time or who is voluntarily admitted for treatment for any
period of time.
(15) "Peace officer" means any sheriff, deputy sheriff, marshal,
police officer, or other peace officer.
(16) "Professional person" means:
(a) a medical doctor;
(b) an advanced practice registered nurse, as provided
for in 37-8-202, with a clinical specialty in psychiatric mental health
nursing; or
(c) a person who has been certified, as provided for
in 53-21-106, by the department.
(17) "Reasonable medical certainty" means reasonable certainty as
judged by the standards of a professional person.
(18) "Respondent" means a person alleged in a petition filed pursuant
to this part to be suffering from a mental disorder and requiring commitment.
(19) "State hospital" means the
53-21-103. Court records to be kept separate. Records and papers in proceedings
under this part shall be maintained separately by the clerks of the several
courts. Five days prior to the release of a respondent or patient committed to
a mental health facility, the facility shall notify the clerk of the court, and
the clerk shall immediately seal the record in the case and omit the name of
the respondent or patient from the index or indexes of cases in the court
unless the court orders the record opened for good cause shown.
53-21-104. Powers and duties of mental disabilities board of
visitors. (1) The
board is an independent board of inquiry and review that is responsible to
ensure that the treatment of all persons either voluntarily or involuntarily
admitted to a mental facility in
(2) The board shall review all plans for experimental
research involving persons admitted to a mental health facility to ensure that
each research project is humane and not unduly hazardous and that it complies
with the principles of the statement on the use of human subjects for research
of the American association on mental deficiency and with the principles for
research involving human subjects required by the United States department of
health and human services. An activity considered to be
an experimental research project and that involves a person or persons admitted
to a mental health facility affected by this part may not be commenced unless
it is approved by the mental disabilities board of visitors.
(3) (a) The board shall inspect every mental health
facility that provides treatment or evaluation to any person pursuant to this
part.
(b) The board shall annually
establish a schedule for the inspection of mental health facilities that
enables the board to meet its obligation under subsection (1).
(c) The board's authority to inspect
mental health facilities may not be waived or precluded by other treatment
review, licensing, or accreditation requirements or protocols. The board may
exercise the prerogative to inspect any mental health facility at any time
independent of its facility inspection schedule.
(d) The board shall produce a
written report of each inspection of a mental health facility that must include
specific recommendations for improvements that the board concludes are
necessary in order for the inspected facility to meet the requirements in this
part.
(e) The board shall provide a draft of each written report within 30 calendar
days of the completion of each mental health facility inspection to the
professional person in charge of the inspected facility for review prior to
publication.
(f) The professional person in charge of the inspected facility shall provide a
written response to the board's written report within 30 calendar days of
receipt of the report. The response must include one of the following for each
recommendation:
(i) a specific plan for
implementation of the recommended action; or
(ii) a specific rationale that explains why the
recommendation cannot be implemented.
(g) The board shall include the inspected facility's written response in the
board's final published written report.
(h) The board shall include in subsequent inspections an assessment of each
facility's implementation of the recommendations.
(i) The board shall report in writing to the director
of the department and the governor when it determines that a mental health
facility has not either implemented written recommendations or provided a
specific rationale that explains why any recommendations cannot be implemented.
(4) (a) The board, by applying a sampling process during a
scheduled inspection of a mental health facility, shall ensure that a treatment
plan and a discharge plan exists and is being implemented for each patient
admitted or committed to the mental health facility being inspected under this
part.
(b) The board, during a scheduled inspection of a mental health facility, shall
review all aspects of the treatment of persons admitted to mental health
facilities and review the use of treatment procedures that involve behavior
control, including but not limited to the use of any type of mechanical
restraints, locked and unlocked seclusion or isolation, time out, or any other
procedure involving physical control.
(c) The board shall ensure that the
use of treatment procedures described in subsection (4)(b)
at inspected mental health facilities is clinically justified, is monitored closely
by a medical doctor and other mental health professionals, is implemented only
when other less restrictive measures have failed, and is implemented to the
least extent necessary to protect the safety and health of the affected
individual or others in the immediate environment.
(d) The board may exercise the
prerogative to inquire about and ensure the existence and implementation of
treatment plans and discharge plans for any person admitted to a mental health
facility and to inquire about and ensure the appropriate use of treatment
procedures described in subsection (4)(b) with any
person admitted to a mental health facility independent of its facility
inspection schedule.
(5) The board may assist any person who is receiving or who
has received treatment at a mental health facility in resolving any grievance
the person may have concerning the person's admission or course of treatment in
the facility.
(6) The board shall employ and is responsible for full-time
legal counsel at the state hospital, whose responsibility is to act on behalf
of all patients at the state hospital. The board shall ensure that there are
sufficient legal staff and facilities to ensure availability to all patients
and shall require that the appointed counsel periodically interview every
patient and examine the patient's files and records. The board may employ
additional legal counsel for representation of patients in a similar manner at
any other mental health facility having inpatient capability.
(7) (a) If the board believes that any facility is failing
to comply with the provisions of this part in regard to its physical facilities
or its treatment of any person, it shall report its findings in writing to the
professional person in charge of the facility and the director of the
department.
(b) The professional person in
charge of the facility shall submit a written response to the board within 10
working days of the receipt of the board's written findings provided for in
subsection (7)(a) that includes an explanation of the facility's point of view
regarding the board's concerns, including areas of disagreement and agreement.
If the facility is in full or partial agreement with the board's concerns, its
written response must include actions that it has taken or that it plans to
take to address the concerns.
(c) If the facility's written response does not resolve the concerns to the
board's satisfaction, the board and the professional person in charge of the
facility shall meet in person within 15 working days of the board's receipt of
the facility's response to seek a mutually agreed upon resolution.
(8) The board shall publish standards for its inspections of
mental health facilities.
(9) The board shall report annually to the governor
concerning:
(a) the
status of the mental health facilities and treatment programs that it has
inspected since the last annual report; and
(b) occurrences of the administration of medications
against the wishes of persons receiving treatment in mental health facilities
and the effectiveness of the review procedure required by 53-21-127(6) in
protecting persons from unnecessary or excessive medication.
53-21-105. Certification of professional persons
required. No person may act in a professional capacity as provided for in
this part unless he is a professional person as defined in 53-21-102.
53-21-106. Certification of professional persons. (1) The department shall certify
professional persons as defined in 53-21-102 for the purpose of this part.
(2) The department, with reference to recognized national
standards in the field of mental health, shall adopt standards and rules
governing the certification of professional persons as defined in 53-21-102.
(3) The rules for certification must address but are not limited to:
(a) the type
of education that an individual has received, including degrees;
(b) the type of experience or training received by the
individual;
(c) continuing education, training, instruction, and
work experience necessary to maintain certification;
(d) an examination instrument to be used to determine
an individual's proficiency and understanding of mental health laws, diagnosis,
and treatment procedures;
(e) the procedure for categorical certification
qualifying the level of professional authority and responsibility of an
individual; and
(f) specific procedures for certification, recertification, and revocation of certification.
53-21-107. Abuse and neglect of persons admitted to
mental health facility prohibited -- reporting -- investigations. (1) Any form
of abuse or neglect of a person admitted to a mental health facility is
prohibited.
(2) Each mental health facility shall publish policies and procedures that
define the facility's guidelines for detecting, reporting, investigating,
determining the validity, and resolving allegations of abuse or neglect.
(3) Each allegation of abuse or neglect must be reported as follows:
(a) Any employee of the mental health facility with knowledge of the allegation
shall immediately report the allegation to the professional person in charge of
the facility.
(b) The professional person in charge of the mental health facility shall
report the allegation by the end of the next business day, in writing, to the
board.
(c) When the allegation of abuse or neglect may constitute a criminal act, the
professional person in charge of the mental health facility shall immediately
report the allegation to the appropriate law enforcement authority.
(4) Each mental health facility shall provide a mechanism for reporting allegations
of abuse or neglect that in no way deters or discourages an individual from
reporting the allegations.
(5) Investigations of allegations of abuse or neglect must be initiated by the
professional person in charge of the facility as soon as possible after the
initial report of the incident, but not later than by the end of the next
business day. Initiation of each investigation may not be delayed in any way
that adversely affects the efficacy of the investigation. However, the
investigation must be initiated immediately when there is a report of an
alleged criminal act.
(6) The investigation of each allegation of abuse or neglect must be concluded
within the minimum period of time necessary to gather the information relative
to each allegation and to come to a conclusion following the initial report of
the allegation.
(7) Each mental health facility shall document the following in writing
regarding each allegation of abuse or neglect:
(a) details of each allegation of abuse or neglect,
including the names of any facility staff against whom the allegation is made;
(b) a description of the rationale for conducting the
investigation with either in-house or outside personnel;
(c) details
of the process of the investigation of each allegation of abuse or neglect;
(d) details of the conclusions of the investigation;
and
(e) details of corrective action taken.
(8) Mental health facilities shall provide a copy of the
written report described in subsections (7)(a) through
(7)(e) within 5 working days of the completion of each investigation to the
director of the department and to the board.
53-21-111. Voluntary admission -- content of admission form
-- requirements for valid admission. (1) (a) This part may not be
construed to limit the right of a person to make voluntary application for
admission at any time to a mental health facility or professional person.
(b) An application for admission to
a mental health facility must be in writing on a form prescribed by the
facility. The form must explain:
(i) the process for requesting release and that the request must
be in writing;
(ii) that the individual applying
for release may be held involuntarily for up to 5 days after requesting
release; and
(iii) that the facility may request a court to
involuntarily commit the applicant.
(c) A statement of the rights of the person voluntarily applying for admission,
as set out in this part, must be furnished to the patient within 12 hours.
(2) An applicant who wishes to voluntarily apply for admission
to the state hospital shall first obtain certification from a professional
person that the applicant is suffering from a mental disorder. The professional
person shall then obtain confirmation from the department or the department's
designee that the facilities available to the mental health region in which the
applicant resides are unable to provide adequate evaluation and treatment. The
department shall adopt rules to establish a procedure whereby a professional
person shall obtain the confirmation from the department or the department's
designee as required in this section.
(3) An application for voluntary admission must give the facility the right to
detain the applicant for no more than 5 days, excluding weekends and holidays,
past the applicant's written request for release. A mental health facility may
adopt rules providing for detention of the applicant for less than 5 days. The
facility shall notify all applicants of the rules and post the rules as
provided in 53-21-168.
(4) An individual applying for voluntary admission pursuant to this section may
not be admitted unless:
(a) the
admission is approved by a professional person;
(b) the individual applying for admission has been informed orally of the
matters required by subsection (1)(b) to be stated in the written application
for admission;
(c) a copy of the written application for admission
has been given to the applicant; and
(d) the
admission otherwise complies with the requirements of this section.
(5) A person voluntarily entering or remaining in a mental health facility
shall enjoy all the rights secured to a person involuntarily committed to the
facility.
53-21-112. Voluntary admission of minors. (1)
Notwithstanding any other provision of law, a parent or guardian of a minor may
consent to mental health services to be rendered to the minor by:
(a) a facility;
(b) a person licensed in this state to practice
medicine; or
(c) a mental health professional licensed in this
state.
(2) A minor who is at least 16 years of age may, without the
consent of a parent or guardian, consent to receive mental health services from
those facilities or persons listed in subsection (1).
(3) Except as provided by this section, the provisions of 53-21-111 apply to
the voluntary admission of a minor to a mental health facility but not to the
state hospital.
(4) Except as provided by this subsection, voluntary admission of a minor to a
mental health facility for an inpatient course of treatment is for the same
period of time as that for an adult. A minor voluntarily admitted with consent
of the minor's parent or guardian has the right to be released within 5 days of
a request by the parent or guardian as provided in 53-21-111(3). A minor who
has been admitted without consent by a parent or guardian, pursuant to
subsection (2), may also make a request and also has the right to be released
within 5 days as provided in 53-21-111(3). Unless there has been a periodic
review and a voluntary readmission consented to by the parent or guardian in
the case of a minor patient or consented to by the minor alone in the case of a
minor patient who is at least 16 years of age, voluntary admission terminates
at the expiration of 1 year. Counsel must be appointed for the minor at the
minor's request or at any time that the minor is faced with potential legal
proceedings.
53-21-113. Costs of committing a patient already voluntarily
admitted -- transportation costs for voluntary admission. (1) The cost of involuntarily
committing a patient who is voluntarily admitted to a mental health facility at
the time the involuntary proceedings are commenced must be paid by the county
of the patient's residence at the time of admission.
(2) The costs of transportation to a mental health facility under 53-21-111 and
53-21-112 must be provided by the local office of public assistance located in
the county of the patient's residence. However, if protective proceedings under
Title 72, chapter 5, have been or are initiated with respect to the person, the
local office of public assistance may seek reimbursement. If no one else is
available to transport the person, the sheriff shall transport the person.
53-21-114. Notice of rights to be given. (1) Whenever a person is
involuntarily detained pursuant to 53-21-121 through 53-21-126, the person
shall at the time of detention be informed of his constitutional rights and his
rights under this part. Within 3 days of such detention, he must also be
informed in writing by the county attorney of such rights.
(2) Every respondent subject to an order for short-term
treatment or long-term care and treatment shall be advised in writing of his
right to appeal the order by the court at the conclusion of any hearing the
result of which such an order may be entered.
53-21-115. Procedural rights. In addition to
any other rights that may be guaranteed by the constitution of the United
States and of this state, by the laws of this state, or by this part, any
person who is involuntarily detained or against whom a petition is filed
pursuant to this part has the following rights:
(1) the right to notice reasonably
in advance of any hearing or other court proceeding concerning the person;
(2) the right in any hearing to be
present, to offer evidence, and to present witnesses in any proceeding concerning
the person;
(3) the right to know, before a
hearing, the names and addresses of any witnesses who will testify in support
of a petition;
(4) the right in any hearing to
cross-examine witnesses;
(5) the right to be represented by
counsel;
(6) the right to remain silent;
(7) the right in any hearing to be
proceeded against according to the rules of evidence applicable to civil
matters generally;
(8) the right to view and copy all
petitions on file with the court concerning the person;
(9) the right to be examined by a
professional person of the person's choice when the professional person is
willing and reasonably available;
(10) the right to be dressed in the
person's own clothes at any hearing held pursuant to this part;
(11) the right to refuse any but lifesaving medication for
up to 24 hours prior to any hearing held pursuant to this part; and
(12) the right to voluntarily take
necessary medications prior to any hearing pursuant to this part.
53-21-116. Right to be present at hearing or trial --
appointment of counsel. The person alleged to be suffering from a mental disorder and requiring
commitment has the right to be present at any hearing or trial. If the person
is indigent, the judge shall appoint counsel to represent the person at either
the hearing or the trial, or both, and the counsel must be compensated pursuant
to 3-5-901(1)(f).
53-21-117. Right to representation by own attorney. The respondent or the friend of
respondent appointed by the court may secure an attorney of his own choice and
at his own expense to represent the respondent.
53-21-118. Right to examination by professional person of
own choosing. (1)
The respondent, his attorney, or the friend of respondent appointed by the
court may secure a professional person of his own choice to examine the
respondent and to testify at the hearing before the court or jury as to the
results of his examination.
(2) If the person wishing to secure the testimony of a
professional person is unable to do so because of financial reasons and if the
respondent joins in the request for the examination, the court shall appoint a
professional person other than the professional person requesting the
commitment to perform the examination. Whenever possible, the court shall allow
the respondent a reasonable choice of an available professional person
qualified to perform the requested examination who will be compensated from the
public funds of the county where the respondent resides.
53-21-119. Waiver of rights. (1) A person may waive his rights,
or if the person is not capable of making an intentional and knowing decision,
these rights may be waived by his counsel and friend of respondent acting
together if a record is made of the reasons for the waiver. The right to
counsel may not be waived. The right to treatment provided for in this part may
not be waived.
(2) The right of the respondent to be physically present at a hearing may also
be waived by his attorney and the friend of respondent with the concurrence of
the professional person and the judge upon a finding supported by facts that:
(a) the
presence of the respondent at the hearing would be likely to seriously
adversely affect his mental condition; and
(b) an alternative location for the hearing in
surroundings familiar to the respondent would not prevent such adverse effects
on his mental condition.
(3) (a) In the case of a minor, provided that a record is
made of the reasons for the waiver, his rights may be waived by the mutual
consent of his counsel and parents or guardian or guardian ad litem if there
are no parents or guardian.
(b) If there is an apparent conflict of interest between a minor and his
parents or guardian, the court shall appoint a guardian ad litem for him.
53-21-120. Detention to be in least restrictive environment
-- preference for mental health facility -- court relief -- prehearing
detention of mentally ill person prohibited. (1) A person detained pursuant to this part must be
detained in the least restrictive environment required to protect the life and
physical safety of the person detained or members of the public; in this
respect, prevention of significant injury to property may be considered.
(2) Whenever possible, a person detained pursuant to this part must be detained
in a mental health facility and in the county of residence. If the person
detained demands a jury trial and the trial cannot be held within 7 days,
subject to the provisions in 53-21-193, the individual may be sent to the state
hospital or a behavioral health inpatient facility until the time of trial if
arrangements can be made to return the person to trial. The trial must be held
within 30 days. The county of residence shall pay the cost of travel and
professional services associated with the trial. A person may not be detained in
any hospital or other medical facility that is not a mental health facility
unless the hospital or facility has agreed in writing to admit the person.
(3) A person may not be detained pursuant to this part in a jail or other
correctional facility.
(4) A person detained prior to involuntary commitment may apply to the court
for immediate relief with respect to the need for detention or the adequacy of
the facility being utilized to detain.
53-21-121. Petition for commitment -- contents of -- notice
of. (1) The county
attorney, upon the written request of any person having direct knowledge of the
facts, may file a petition with the court alleging that there is a person
within the county who is suffering from a mental disorder and who requires
commitment pursuant to this chapter.
(2) The petition must contain:
(a) the name and address of the person requesting the
petition and the person's interest in the case;
(b) the name of the respondent and, if known, the
address, age, sex, marital status, and occupation of the respondent;
(c) the purported facts supporting the allegation of mental disorder, including
a report by a mental health professional if any, a statement of the disposition
sought pursuant to 53-21-127, and the need for commitment;
(d) the name and address of every person known or
believed to be legally responsible for the care, support, and maintenance of
the respondent for whom evaluation is sought;
(e) the name and address of the respondent's next of
kin to the extent known to the county attorney and the person requesting the
petition;
(f) the name and address of any person whom the county
attorney believes might be willing and able to be appointed as friend of
respondent;
(g) the name, address, and telephone number of the attorney, if any, who has
most recently represented the respondent for whom evaluation is sought; if
there is no attorney, there must be a statement as to whether to the best
knowledge of the person requesting the petition the respondent for whom
evaluation is sought is indigent and unable to afford the services of an
attorney;
(h) a statement of the rights of the respondent, which
must be in conspicuous print and identified by a suitable heading; and
(i) the name and address of
the mental health facility to which it is proposed that the respondent may be
committed, if known.
(3) Notice of the petition must be hand-delivered to the respondent and to the
respondent's counsel on or before the initial appearance of the respondent
before the judge or justice of the peace. The respondent's counsel shall meet
with the respondent, explain the substance of the petition, and explain the
probable course of the proceedings. Notice of the petition and the order
setting the date and time of the hearing and the names of the respondent's
counsel, professional person, and friend of respondent must be hand-delivered,
mailed, or sent by a facsimile transmission to the person or persons legally
responsible for care, support, and maintenance of the respondent, the next of
kin identified in the petition, any other person identified by the county
attorney as a possible friend of respondent other than the one named as the
friend of respondent, the director of the department or the director's
designee, and the mental health facility to which the respondent may be
committed, if known. The notice may provide, other than as to the respondent
and the respondent's counsel, that no further notice will be given unless
written request is filed with the clerk of court.
53-21-122. Petition for commitment -- filing of -- initial
hearing on. (1) The
petition must be filed with the clerk of court who shall immediately notify the
judge.
(2) If a judge is available, the judge shall consider the
petition, and if the judge finds no probable cause, it must be dismissed. If
the judge finds probable cause, counsel must be immediately appointed for the
respondent, and the respondent must be brought before the court with the
respondent's counsel. The respondent must be advised of the respondent's constitutional
rights, the respondent's rights under this part, and the substantive effect of
the petition. The respondent may at this appearance object to the finding of
probable cause for filing the petition. The judge shall appoint a professional
person and a friend of respondent and set a date and time for the hearing on
the petition that may not be on the same day as the initial appearance and that
may not exceed 5 days, including weekends and holidays, unless the fifth day
falls upon a weekend or holiday and unless additional time is requested on
behalf of the respondent. The desires of the respondent must be taken into
consideration in the appointment of the friend of respondent and in the
confirmation of the appointment of the attorney.
(3) If a judge is not available in the county, the clerk shall notify a
resident judge by telephone and shall read the petition to the judge. If the
judge finds no probable cause, the petition must be dismissed. If the judge
finds probable cause, the judge shall cause the clerk to issue an order
appointing counsel and a professional person and setting a date and time for
the hearing on the petition that may not be on the same day as the initial
appearance and that may not exceed 5 days, including weekends and holidays,
unless the fifth day falls upon a weekend or holiday and unless additional time
is requested on behalf of the respondent. The order must also direct that the
respondent be brought before a justice of the peace with the respondent's
counsel to be advised of the respondent's constitutional rights, the
respondent's rights under this part, and the contents of the clerk's order, as
well as to furnish the respondent with a copy. The justice of the peace shall
ascertain the desires of the respondent with respect to the appointment of
counsel, and this information must be immediately communicated to the resident
judge. The resident judge may appoint other counsel, may confer with
respondent's counsel and the county attorney in order to appoint a friend of
respondent, and may do all things necessary through the clerk of court by
telephone as if the resident judge were personally present.
53-21-123. Examination of respondent following
initial hearing -- recommendation of professional person. (1) Following the
initial hearing, whether before a judge or justice of the peace, the respondent
must be examined by the professional person without unreasonable delay. The
examination may not exceed a period of 4 hours. The professional person shall
immediately notify the county attorney of the findings in person or by phone
and shall make a written report of the examination to the court, with copies to
the respondent's attorney and the county attorney. If the professional person
recommends commitment, the professional person's written report must contain a
statement of the professional person's recommendations to the court for
disposition under 53-21-127.
(2) The following action must be taken based on the professional person's
findings:
(a) If the professional person recommends dismissal, the professional person
shall additionally notify counsel and the respondent must be released and the
petition dismissed. However, the county attorney may, upon good cause shown,
request the court to order an additional, but no more than one, examination by
a different professional person for a period of no more than 4 hours.
(b) If the court finds that commitment proceedings should continue, the hearing
must be held as scheduled.
(3) The court may not order further evaluation pending the hearing unless sound
medical reasons require additional time for a complete evaluation. The reasons
must be set forth in the order, along with the amount of additional time
needed.
53-21-124. Detention of respondent pending hearing or trial
-- jail prohibited.
(1) The court may not order detention of a respondent pending the hearing
unless requested by the county attorney and upon the existence of probable
cause for detention. Counsel must be orally notified immediately. Counsel for
the respondent may then request a detention hearing, which must be held
immediately.
(2) In the event of detention, the respondent must be detained in the least
restrictive setting necessary to ensure the respondent's presence and ensure
the safety of the respondent and of others as provided in 53-21-120.
(3) If the respondent is detained, the respondent has the right to be examined
additionally by a professional person of the respondent's choice, which may not
depend on the respondent's ability to pay, and the respondent must be informed
of this right. Unless objection is made by counsel for the respondent, the
respondent must continue to be evaluated and treated by the professional person
pending the hearing.
(4) A respondent may not be detained in a jail or other correctional facility
pending a hearing or trial to determine whether the respondent should be
committed to a mental health facility.
53-21-125. Request for jury trial. At any time prior to the date set
for hearing, the respondent, through his counsel, may request a jury trial,
whereupon the time set for hearing shall be vacated and the matter set on the
court's jury calendar at the earliest date possible, the matter taking
precedence over all other matters. If there is not a jury in attendance, a jury
shall be selected in the manner provided in 3-15-506 and a date set for trial
by jury not later than 7 days, exclusive of Saturdays, Sundays, and holidays.
53-21-126. Trial or hearing on petition. (1) The respondent must be present
unless the respondent's presence has been waived as provided in 53-21-119(2),
and the respondent must be represented by counsel at all stages of the trial.
The trial must be limited to the determination of whether or not the respondent
is suffering from a mental disorder and requires commitment. At the trial, the
court shall consider all the facts relevant to the issues of whether the
respondent is suffering from a mental disorder. If the court determines that
the respondent is suffering from a mental disorder, the court shall then
determine whether the respondent requires commitment. In determining whether
the respondent requires commitment and the appropriate disposition under
53-21-127, the court shall consider the following:
(a) whether the respondent, because of a mental disorder, is substantially
unable to provide for the respondent's own basic needs of food, clothing,
shelter, health, or safety;
(b) whether
the respondent has recently, because of a mental disorder and through an act or
an omission, caused self-injury or injury to others;
(c) whether, because of a mental disorder, there is an
imminent threat of injury to the respondent or to others because of the
respondent's acts or omissions; and
(d) whether the respondent's mental disorder, as demonstrated by the
respondent's recent acts or omissions, will, if untreated, predictably result
in deterioration of the respondent's mental condition to the point at which the
respondent will become a danger to self or to others or will be unable to
provide for the respondent's own basic needs of food, clothing, shelter,
health, or safety. Predictability may be established by the respondent's
relevant medical history.
(2) The standard of proof in a hearing held pursuant to this section is proof
beyond a reasonable doubt with respect to any physical facts or evidence and
clear and convincing evidence as to all other matters. However, the
respondent's mental disorder must be proved to a reasonable medical certainty.
Imminent threat of self-inflicted injury or injury to others must be proved by
overt acts or omissions, sufficiently recent in time as to be material and
relevant as to the respondent's present condition.
(3) The professional person appointed by the court must be present for the
trial and subject to cross-examination. The trial is governed by the Montana
Rules of Civil Procedure. However, if the issues are tried by a jury, at least
two-thirds of the jurors shall concur on a finding that the respondent is
suffering from a mental disorder and requires commitment. The written report of
the professional person that indicates the professional person's diagnosis may
be attached to the petition, but any matter otherwise inadmissible, such as
hearsay matter, is not admissible merely because it is contained in the report.
The court may order the trial closed to the public for the protection of the
respondent.
(4) The professional person may testify as to the ultimate issue of whether the
respondent is suffering from a mental disorder and requires commitment. This
testimony is insufficient unless accompanied by evidence from the professional
person or others that:
(a) the respondent, because of a mental disorder, is substantially unable to
provide for the respondent's own basic needs of food, clothing, shelter,
health, or safety;
(b) the respondent has recently, because of a mental
disorder and through an act or an omission, caused self-injury or injury to
others;
(c) because of a mental disorder, there is an imminent
threat of injury to the respondent or to others because of the respondent's
acts or omissions; or
(d) (i) the respondent's
mental disorder:
(A) has resulted in recent acts, omissions, or
behaviors that create difficulty in protecting the respondent's life or health;
(B) is treatable, with a reasonable prospect of success;
(C) has resulted in the respondent's refusing or being
unable to consent to voluntary admission for treatment; and
(ii) will, if untreated, predictably result in deterioration of the
respondent's mental condition to the point at which the respondent will become
a danger to self or to others or will be unable to provide for the respondent's
own basic needs of food, clothing, shelter, health, or safety. Predictability
may be established by the respondent's relevant medical history.
(5) The court, upon the showing of good cause and when it is
in the best interests of the respondent, may order a change of venue.
53-21-127. Posttrial disposition. (1) If, upon trial, it is
determined that the respondent is not suffering from a mental disorder or does
not require commitment within the meaning of this part, the respondent must be
discharged and the petition dismissed.
(2) If it is determined that the respondent is suffering
from a mental disorder and requires commitment within the meaning of this part,
the court shall hold a posttrial disposition hearing.
The disposition hearing must be held within 5 days (including Saturdays,
Sundays, and holidays unless the fifth day falls on a Saturday, Sunday, or
holiday), during which time the court may order further evaluation and
treatment of the respondent.
(3) At the conclusion of the disposition hearing and
pursuant to the provisions in subsection (7), the court shall:
(a) subject to the provisions of 53-21-193, commit the
respondent to the state hospital or to a behavioral health inpatient facility
for a period of not more than 3 months;
(b) commit the respondent to a community facility or
program or to any appropriate course of treatment, which may include housing or
residential requirements or conditions as provided in 53-21-149, for a period
of:
(i) not more than 3 months;
or
(ii) not more than 6 months in order to provide the respondent with a less
restrictive commitment in the community rather than a more restrictive
placement in the state hospital if a respondent has been previously
involuntarily committed for inpatient treatment in a mental health facility and
the court determines that the admission of evidence of the previous involuntary
commitment is relevant to the criterion of predictability, as provided in
53-21-126(1)(d), and outweighs the prejudicial effect of its admission, as
provided in 53-21-190; or
(c) commit the respondent to the
(i) the respondent meets the
admission criteria of the center as described in 53-21-411 and established in
administrative rules of the department; and
(ii) the superintendent of the center has issued a
written authorization specifying a date and time for admission.
(4) Except as provided in subsection (3)(b)(ii), a treatment ordered pursuant
to this section may not affect the respondent's custody or course of treatment
for a period of more than 3 months.
(5) In determining which of the alternatives in subsection (3) to order, the
court shall choose the least restrictive alternatives necessary to protect the
respondent and the public and to permit effective treatment.
(6) The court may authorize the chief medical officer of a facility or a
physician designated by the court to administer appropriate medication
involuntarily if the court finds that involuntary medication is necessary to
protect the respondent or the public or to facilitate effective treatment.
Medication may not be involuntarily administered to a patient unless the chief
medical officer of the facility or a physician designated by the court approves
it prior to the beginning of the involuntary administration and unless, if
possible, a medication review committee reviews it prior to the beginning of
the involuntary administration or, if prior review is not possible, within 5
working days after the beginning of the involuntary administration. The
medication review committee must include at least one person who is not an
employee of the facility or program. The patient and the patient's attorney or
advocate, if the patient has one, must receive adequate written notice of the
date, time, and place of the review and must be allowed to appear and give
testimony and evidence. The involuntary administration of medication must be
again reviewed by the committee 14 days and 90 days after the beginning of the
involuntary administration if medication is still being involuntarily
administered. The mental disabilities board of visitors and the director of the
department of public health and human services must be fully informed of the
matter within 5 working days after the beginning of the involuntary
administration. The director shall report to the governor on an annual basis.
(7) Satisfaction of any one of the criteria listed in 53-21-126(1) justifies
commitment pursuant to this chapter. However, if the court relies solely upon
the criterion provided in 53-21-126(1)(d), the court may require commitment
only to a community facility or program or an appropriate course of treatment,
as provided in subsection (3)(b), and may not require commitment at the state
hospital, a behavioral health inpatient facility, or the Montana mental health
nursing care center.
(8) In ordering commitment pursuant to this section, the court shall make the
following findings of fact:
(a) a detailed statement of the facts upon which the
court found the respondent to be suffering from a mental disorder and requiring
commitment;
(b) the alternatives for treatment that were
considered;
(c) the alternatives available for treatment of the
respondent;
(d) the reason that any treatment alternatives were
determined to be unsuitable for the respondent;
(e) the name of the facility, program, or individual
to be responsible for the management and supervision of the respondent's
treatment;
(f) if the order includes a requirement for inpatient
treatment, the reason inpatient treatment was chosen from among other
alternatives;
(g) if the order commits the respondent to the Montana mental health nursing
care center, a finding that the respondent meets the admission criteria of the
center and that the superintendent of the center has issued a written
authorization specifying a date and time for admission; and
(h) if the order includes involuntary medication, the
reason involuntary medication was chosen from among other alternatives.
53-21-128. Petition for extension of commitment period. (1) (a) Not less than 2 calendar
weeks prior to the end of the 3-month period of commitment to the state
hospital, a behavioral health inpatient facility, or the Montana mental health
nursing care center or the period of commitment to a community facility or
program or a course of treatment provided for in 53-21-127, the professional person
in charge of the patient at the place of commitment may petition the district
court in the county where the patient is committed for extension of the
commitment period unless otherwise ordered by the original committing court.
The petition must be accompanied by a written report and evaluation of the
patient's mental and physical condition. The report must describe any tests and
evaluation devices that have been employed in evaluating the patient, the
course of treatment that was undertaken for the patient, and the future course
of treatment anticipated by he professional person.
(b) Upon the filing of the petition, the court shall give written notice of the
filing of the petition to the patient, the patient's next of kin, if reasonably
available, the friend of respondent appointed by the court, and the patient's
counsel. If any person notified requests a hearing prior to the termination of
the previous commitment authority, the court shall immediately set a time and
place for a hearing on a date not more than 10 days, not including Saturdays,
Sundays, and holidays, from the receipt of the request and notify the same
people, including the professional person in charge of the patient. When a
hearing is requested less than 10 days prior to the termination of the previous
commitment authority, the previous commitment is considered extended until the
hearing is held. The notice of hearing must include a notice of this extension.
If a hearing is not requested, the court shall enter an order of commitment for
a period not to exceed 6 months.
(c) Procedure on the petition for
extension when a hearing has been requested must be the same in all respects as
the procedure on the petition for the original 3-month commitment, except that
the patient is not entitled to a trial by jury. The hearing must be held in the
district court having jurisdiction over the facility in which the patient is
detained unless otherwise ordered by the court. Court costs and witness fees,
if any, must be paid by the county that paid the same costs in the initial
commitment proceedings.
(d) If upon the hearing the court finds the patient not to be suffering from a
mental disorder and requiring commitment within the meaning of this part, the
patient must be discharged and the petition dismissed. If the court finds that
the patient continues to suffer from a mental disorder and to require
commitment, the court shall order commitment as set forth in 53-21-127.
However, an order extending the commitment period may not affect the patient's
custody for more than 6 months and may not commit the patient to a behavioral
health inpatient facility. In its order, the court shall describe what
alternatives for treatment of the patient are available, what alternatives were
investigated, and why the investigated alternatives were not found suitable.
The court may not order continuation of an alternative that does not include a
comprehensive, individualized plan of treatment for the patient. A court order
for the continuation of an alternative must include a specific finding that a
comprehensive, individualized plan of treatment exists.
(2) Prior to the end of the period of commitment to a
community facility or program or course of treatment, a respondent may request
that the treating provider petition the district court for an extension of the
commitment order. The petition must be accompanied by a written report and
evaluation of the respondent's mental and physical condition, an updated
treatment plan, and a written statement by the respondent that an extension is
desired. The extension procedure must follow the procedure required in
subsections (1)(b) through (1)(d).
(3) Further extensions under subsection (1) or (2) may be obtained under the
same procedure described in subsection (1). However, the patient's custody may
not be affected for more than 1 year without a renewal of the commitment under
the procedures set forth in subsection (1), including a statement of the
findings required by subsection (1).
53-21-129. Emergency situation -- petition -- detention. (1) When an emergency situation
exists, a peace officer may take any person who appears to have a mental
disorder and to present an imminent danger of death or bodily harm to the
person or to others into custody only for sufficient time to contact a
professional person for emergency evaluation. If possible, a professional
person should be called prior to taking the person into custody.
(2) If the professional person agrees that the person detained is a danger to
the person or to others because of a mental disorder and that an emergency
situation exists, then the person may be detained and treated until the next
regular business day. At that time, the professional person shall release the
detained person or file findings with the county attorney who, if the county
attorney determines probable cause to exist, shall file the petition provided
for in 53-21-121 through 53-21-126 in the county of the respondent's residence.
In either case, the professional person shall file a report with the court explaining
the professional person's actions.
(3) The county attorney of a county may make arrangements with a federal,
state, regional, or private mental facility or with a mental health facility in
a county for the detention of persons held pursuant to this section. If an
arrangement has been made with a facility that does not, at the time of the
emergency, have a bed available to detain the person at that facility, the
person may be transported to the state hospital or to a behavioral health
inpatient facility, subject to 53-21-193 and subsection (4) of this section,
for detention and treatment as provided in this part. This determination must
be made on an individual basis in each case, and the professional person at the
local facility shall certify to the county attorney that the facility does not
have adequate room at that time.
(4) Before a person may be transferred to the state hospital
or to a behavioral health inpatient facility under this section, the state
hospital or the behavioral health inpatient facility must be notified prior to
transfer and shall state whether a bed is available for the person. If the
Montana state hospital determines that a behavioral health inpatient facility
is the appropriate facility for the emergency detention, it shall direct the
person to the appropriate facility to which the person must be transported for
emergency detention.
53-21-130. Transfer or commitment to mental health facility
from other institutions. (1) A person who is in the custody of the department for any purpose
other than treatment of severe mental illness may not be transferred or
committed to a mental health facility for more than 10 days unless the transfer
or commitment is effected according to the procedures set out in this part.
However, proceedings for involuntary commitment may be commenced in the county
of the mental health facility where the person is, in the county of the
institution from which the person was transferred to the mental health
facility, or in the county of the person's residence. Notice of a transfer must
be given immediately to the assigned counsel at the mental health facility and
to the parents of minors, guardians, friends of respondent, or conservators.
(2) A person who is in the custody of the department of corrections may be
transferred for placement in a mental health facility for a period of up to 10
days, subject to the approval of the mental health facility. A placement in
excess of 10 days must be performed according to the procedures for voluntary
admission or involuntary commitment as provided in this part. Proceedings for
involuntary commitment may be commenced in the county of the mental health
facility where the person is placed or in the county of the correctional
facility from which the person was transferred. Notice of a transfer must be
given to the legal counsel for the person and to the parents of minors,
guardians, friends of respondent, or conservators.
53-21-131. Appeal procedure. Appellate review of any order of
short-term evaluation and treatment or long-term commitment may be had by
appeal to the supreme court of Montana in the manner as other civil cases,
except that the appeal may be taken at any time within 90 days of the actual
service of the written notice of the right to appeal required by 53-21-114 or
within 90 days after discharge, whichever is later. The patient shall not be
released pending appeal unless ordered by the court. The appeal shall have
priority above all other matters before the supreme court.
53-21-132. Cost of examination and commitment.
(1) The cost of precommitment examination, detention,
treatment, and taking a person who is suffering from a mental disorder and who
requires commitment to a mental health facility must be paid by the county in
which the person resides at the time that the person is committed. The sheriff
must be allowed the actual expenses incurred in taking a committed person to
the facility, as provided by 7-32-2144.
(2) The county of residence shall also pay all precommitment
expenses, including transportation to a mental health facility, incurred in
connection with the detention, examination, and precommitment
custody of the respondent and any cost associated with testimony during an
involuntary commitment proceeding by a professional person acting pursuant to
53-21-123. However, the county of residence is not required to pay costs of
treatment and custody of the respondent after the respondent is committed
pursuant to this part. Precommitment costs related to
the use of two-way electronic audio-video communication in the county of
commitment must be paid by the county in which the person resides at the time
that the person is committed. The costs of the use of two-way electronic
audio-video communication from the state hospital for a patient who is under a
voluntary or involuntary commitment to the state hospital must be paid by the
state. The fact that a person is examined, hospitalized, or receives medical,
psychological, or other mental health treatment pursuant to this part does not
relieve a third party from a contractual obligation to pay for the cost of the
examination, hospitalization, or treatment.
(3) The adult respondent or the parent or guardian of a minor shall pay the
cost of treatment and custody ordered pursuant to 53-21-127, except to the extent
that the adult or minor is eligible for public mental health program funds.
(4) A community service provider that is a private, nonpublic provider may not
be required to treat or treat without compensation a person who has been
committed.
53-21-133. Transfer to nonstate
facilities. (1) If
a person is committed under the provisions of this part and is eligible for
hospital care or treatment by an agency of the United States and if a
certificate of notification from such agency showing that facilities are
available and that the person is eligible for care or treatment therein is
received, the court may order the person to be placed in the custody of the
agency for hospitalization. The chief officer of any hospital or institution
operated by such an agency and in which a person is so hospitalized shall be
vested with the same powers as the superintendent of the state hospital with
respect to detention, custody, transfer, conditional release, or discharge of
the person. Jurisdiction shall be retained in the appropriate courts of this
state to inquire into the mental condition of persons so hospitalized and to
determine the necessity for continuance of their hospitalization.
(2) Consistent with other provisions of this part, a person committed under
this part for a period of 3 months or longer may be committed by the court to
the custody of friends or next of kin residing outside the state or to a mental
health facility located outside the state if the out-of-state facility agrees
to receive the patient. No such commitment shall be for a longer period of time
than is permitted within the state. If the patient is indigent, the expense of
supporting him in an out-of-state facility and the expense of transportation
shall be borne by the state of
(3) The transfer out of
53-21-134. Receipt of nonresident person suffering from a
mental disorder pending return to home state. A person who is suffering from a mental disorder and
in need of commitment and who is not a resident of this state may be committed
to the state hospital pursuant to this part. The state hospital shall make
every effort to return the nonresident to the state of the person's residence
as provided in chapter 22, part 1, of this title.
53-21-138. Diversion of certain persons suffering from
mental disorders from detention center. (1) The sheriff or administrator of a detention center in
each county shall require screening of inmates to identify persons accused of
minor misdemeanor offenses who appear to be suffering
from mental disorders and who may require commitment, as defined in 53-21-102.
(2) If as a result of screening and observation it is believed that an inmate
is suffering from a mental disorder and may require commitment, the sheriff or
administrator of the detention center shall:
(a) request services from a crisis intervention program
established by the department, as provided for in 53-21-139;
(b) refer the inmate to the nearest qualified mental
health care provider as arranged by the county; or
(c) subject to 53-21-193 and subsection (3) of this
section, transfer the inmate to a private mental health facility, a behavioral
health inpatient facility, or a hospital equipped to provide treatment and care
of persons who are suffering from a mental disorder and who require commitment.
(3) The facility must be notified, and the facility shall state that a bed is
available and agree to accept transfer of the patient based on admission
criteria before a person may be transferred under this section.
(4) As used in this section, the term "minor misdemeanor offense"
includes but is not limited to a nonserious
misdemeanor, such as criminal trespass to property, loitering, disorderly
conduct, and disturbing the public peace.
(5) A person intoxicated by drugs or alcohol who is accused of a minor
misdemeanor offense may be detained in a jail until the level of intoxication
is reduced to the point that screening for a mental disorder and the need for
commitment can be performed.
53-21-139. Crisis intervention programs. (1) The department shall, subject
to available appropriations, establish crisis intervention programs. The
programs must be designed to provide 24-hour emergency admission and care of
persons suffering from a mental disorder and requiring commitment in a
temporary, safe environment in the community as an alternative to placement in
jail.
(2) The department shall provide information and technical assistance regarding
needed services and assist counties in developing county plans for crisis
intervention services and for the provision of alternatives to jail placement.
(3) The department may provide crisis intervention programs as:
(a) a rehabilitative service under 53-6-101(3)(j); and
(b) a targeted case management service authorized in
53-6-101(3)(n).
53-21-140. Use of two-way electronic audio-video
communication. (1)
For purposes of this chapter, a hearing that is conducted by the use of two-way
electronic audio-video communication, allowing all of the participants to be
observed and heard by all present, is considered to be a hearing in open court.
(2) Whenever the law requires that a respondent or patient in any of the
hearings provided for in subsection (3) be present before a court, this
requirement may, in the discretion of the court, be satisfied either by the
respondent's or patient's physical appearance before the court or by two-way
electronic audio-video communication. The audio-video communication must
operate so that the respondent or patient, the respondent's or patient's
counsel, and the judge can see each other simultaneously and converse with each
other, so that the respondent or patient and the respondent's or patient's
counsel can communicate privately, and so that the respondent or patient and
counsel are both present during the two-way electronic audio-video
communication. A respondent or patient may request that counsel from the board
be present, for consulting purposes only, if the respondent or patient is
located at the state hospital.
(3) At the discretion of the court, the following hearings may be conducted
through two-way electronic audio-video communication:
(a) the initial hearing provided for in 53-21-122;
(b) the detention hearing provided for in 53-21-124;
(c) the trial or hearing on a peti