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Last updated January 2004
Chapter 135-C: New
Hampshire Mental Health Services System
135-C:1 Purpose and Policy. –
I. The purpose of this chapter is to enable the department
of health and human services to:
(a) Establish, maintain, and coordinate a comprehensive, effective, and
efficient system of services for persons with mental illness.
(b) Reduce the occurrence, severity and duration of mental, emotional, and
behavioral disabilities.
(c) Prevent mentally ill persons from harming themselves or others.
II. It is the policy of this state to provide to persons who
are severely mentally disabled adequate and humane care which, to the extent
possible while meeting the purposes of habilitation and treatment, is:
(a) Within each person's own community.
(b) Least restrictive of the person's freedom of movement and ability to
function normally in society while being appropriate to the person's individual
capacity.
(c) Directed toward eliminating the
need for services and promoting the person's independence.
III. It is the policy of this state that mental illness in
and of itself is insufficient to involuntarily admit any person into the mental
health services system.
135-C:2 Definitions. – As used in this chapter:
II. "Administrator' means the superintendent, executive
director, or other chief administrative officer of any facility or of any
community mental health program operated under the supervision of the
commissioner.
II-a. "Advanced registered nurse
practitioner' or "A.R.N.P.'means an advanced
registered nurse practitioner licensed by the board of nursing who is a
psychiatric mental health specialist and who has at least 2 years' experience
as an advanced registered nurse practitioner working with individuals who have
mental illness, as defined in paragraph X of this section, and who meets any
other criteria specified in rules adopted by the department.
III. "Commissioner' means the commissioner of the
department of health and human services.
IV. "Community mental health program' means a program
established and administered by the state, city, town, or county, or a
nonprofit corporation for the purpose of providing mental health services to
the residents of the area and which minimally provides emergency, medical or
psychiatric screening and evaluation, case management, and psychotherapy
services.
V. "Conditional discharge' means the release of an
involuntarily admitted person from a receiving facility on the condition that
the person accept treatment in the community or be subject to readmission.
VI. "Department' means the department of health and
human services.
VII, VIII. [Repealed.]
IX. "Informed decision' means a choice made by a client
or person seeking to be admitted who has the ability to make such a choice and
who makes it voluntarily after all relevant information necessary to making the
decision has been provided, and who understands that he is free to choose or refuse
any available alternative, and who clearly indicates or expresses his choice.
The choice shall be free from all coercion.
X. "Mental illness' means a substantial impairment of
emotional processes, or of the ability to exercise conscious control of one's
actions, or of the ability to perceive reality or to reason, when the
impairment is manifested by instances of extremely abnormal behavior or
extremely faulty perceptions. It does not include impairment primarily caused
by: (a) epilepsy; (b) mental retardation; (c) continuous or noncontinuous
periods of intoxication caused by substances such as alcohol or drugs; or (d)
dependence upon or addiction to any substance such as alcohol or drugs.
XI. "Neglect' means an act or omission which results or
could result in the deprivation of essential services or supports necessary to
maintain the minimum mental, emotional, or physical health and safety of an
incapacitated adult.
XII. "Physician' means a medical doctor licensed to
practice in
XIII. "Psychiatrist' means a physician licensed to
practice in New Hampshire who is either board certified or board eligible
according to the most recent regulations of the American Board of Psychiatry
and Neurology, Inc., or its successor organization.
XIV. "Receiving facility' means a treatment facility
which is designated by the commissioner to accept for care, custody, and
treatment persons involuntarily admitted to the state mental health services
system.
XV. "Severely mentally disabled' means having a mental
illness which is either so acute or of such duration as to cause a substantial
impairment of a person's ability to care for himself or to function normally in
society in accordance with rules authorized by RSA 135-C:61.
XVI. "Treatment' means examination, diagnosis,
training, rehabilitation therapy, pharmaceuticals, and other services provided
to clients in the mental health services system. Treatment shall not include
examination or diagnosis for the purpose of determining the need for involuntary
emergency admissions pursuant to RSA 135-C:27-33 or
involuntary admissions pursuant to RSA 135-C:34-54.
135-C:12 Application for Services.
–
I. Any person seeking services from the state mental health
services system may apply to an approved community mental health program or to
a receiving facility.
II. Application shall be made by, or with the consent of,
the person seeking services. An application for a person 18 years of age or
older who has been adjudicated incapacitated in
accordance with RSA 464-A shall be made by, or with the consent of, his court
appointed guardian. Application for a person under 18
years of age may be made by the person's parent or legal guardian.
III. The program or facility shall determine the eligibility
of the applicant, pursuant to RSA 135-C:13, to receive
services from the state mental health services system and shall notify the
applicant of the eligibility decision within 15 days after receipt of the
application.
135-C:13 Discrimination Prohibited;
Eligibility for Services. – Every severely mentally disabled person shall be eligible
for admission to the state mental health services system, and no such person
shall be denied services because of race, color or religion, sex, or inability
to pay. Eligible persons shall include formerly severely mentally disabled
persons who without continued services would probably become severely mentally
disabled again. Each client has a right to adequate and humane treatment
provided in accordance with generally accepted clinical and professional
standards. The treatment shall include such psychological, psychiatric, habilitative, rehabilitative, vocational and case
management services which are necessary and appropriate to bring about an
improvement, when possible, in the client's condition and which are available
within the state mental health services system. If necessary services are not
available, such service shall be documented through individual service plans.
When services have been documented to be necessary but unavailable, each agency
responsible for provision of such services shall notify the department of the
need for them, and the department shall utilize such information for budgetary
planning purposes. The treatment may include housing and such other services as
the department may elect to provide to severely mentally disabled persons.
Eligibility for services in the mental health system for persons under 21 years
of age shall be determined after consideration of the services provided under
RSA 186-C, RSA 169-B, RSA 169-C, RSA 169-D, or any other law. The commissioner
shall adopt rules, pursuant to RSA 541-A, relative to the eligibility of
severely mentally disabled persons to receive state services and the service
guarantees for clients in the state system.
135-C:14 Optional Services. – The department may provide services
to persons in need of mental health treatment who are not severely mentally
disabled and may provide prevention, emergency, information and referral,
consultation, education and other services to individuals and organizations
without regard to eligibility and shall give special emphasis to children and
elderly who need mental health intervention.
135-C:15 Placement Criteria.
– Except for
emergency treatment or involuntary admissions ordered under RSA 135-C:27-54, all placements of clients in the programs and
services in the mental health system shall be voluntary and shall require the
documented consent of the client or guardian. Placements shall be made into
those programs and services which least restrict the client's freedom of
movement, ability to make decisions, and participation in his community while
achieving the purposes of habilitation and treatment.
135-C:16 Withdrawal From Services;
Rules. –
Subject to RSA 135-C:17, any client receiving service
or treatment on a voluntary basis may at any time withdraw from the service or
treatment or from any specific form of treatment. The commissioner shall adopt
rules, pursuant to RSA 541-A, relative to the rights of minors to withdraw from
service or treatment. The commissioner may adopt rules, pursuant to RSA 541-A,
which limit the right of a client to withdraw completely from a receiving
facility at night or on weekends and holidays. When a withdrawal is made
against medical advice, the client shall be notified in writing of that fact
and a copy of the notice shall be made a part of the client's record.
135-C:17 Restriction on Withdrawal.
– If a client
admitted to a receiving facility on a voluntary basis informs the facility of
his desire to withdraw completely from the facility, the administrator of the
facility or his designee may order a mental and physical examination of the
client to determine whether the criteria for involuntary emergency admission in
RSA 135-C:27-33 are met. In such instances, the withdrawal of the client from
the facility may be restricted for a period not to exceed 24 hours. If the
physician conducting the examination determines that the criteria for
involuntary emergency admission are not met or if no examination has occurred
within the 24-hour period, the client shall be released immediately. Otherwise,
the client shall be treated in accordance with the provisions of RSA 135-C:27-33.
135-C:18 Termination of Services;
Rules. – Any
program or facility in the mental health services system may at any time
terminate or suspend services to the client when the termination or suspension
is in the best interests of the client or when the client cannot benefit from
the service. Services may also be terminated or suspended if the client
endangers or threatens to endanger other clients or staff. A reasonable notice
shall be given to the client or guardian, stating the effective date of the
termination or suspension, the reasons for the termination or suspension, and
the right to appeal the termination or suspension decision. The commissioner
shall adopt rules, pursuant to RSA 541-A, relative to termination or suspension
criteria and procedures for administrative appeals.
135-C:19 Individual Service Plan;
Rules. –
There shall be an individual service plan for every client in the mental health
services system. The program or facility into which the client was placed shall
develop the individual service plan which shall be regularly reviewed and
modified if necessary. To the extent feasible, the plan shall be developed with
the participation of the client. The commissioner shall adopt rules, pursuant
to RSA 541-A, relative to the criteria and process for development of
individual service plans.
135-C:19-a Disclosure of Certain
Information. –
I. Notwithstanding RSA 329:26 and RSA 330-A:32, a community mental health
center or state facility providing services to seriously or chronically
mentally ill clients may disclose information regarding diagnosis, admission to
or discharge from a treatment facility, functional assessment, the name of the
medicine prescribed, the side effects of any medication prescribed, behavioral
or physical manifestations which would result from failure of the client to
take such prescribed medication, treatment plans and goals and behavioral
management strategies to a family member or other person, if such family member
or person lives with the client or provides direct care to the client. The
mental health center or facility shall provide a written notice to the client which shall include the name of the person requesting the
information, the specific information requested and the reason for the request.
Prior to the disclosure, the mental health center or facility shall request in
writing the consent of the client. If consent cannot be obtained, the client
shall be informed of the reason for the intended disclosure, the specific
information to be released and the person or persons to whom the disclosure is
to be made.
II. Notwithstanding RSA 329:26 and RSA 330-A:32, when the
medical director or designee determines that obtaining information is essential
to the care or treatment of a person admitted pursuant to RSA 135-C:27-54, a
designated receiving facility may request, and any health care provider which
previously provided services to any person involuntarily admitted to the
facility may provide, information about such person limited to medications
prescribed, known medication allergies or other information essential to the
medical or psychiatric care of the person admitted. Prior to requesting such
information the facility shall in writing request the person's consent for such
request for information. If the consent cannot be obtained, the facility shall
inform the person in writing of the care providers who have been requested to
provide information to the facility pursuant to this section. The facility may
disclose such information as is necessary to identify the person and the
facility which is requesting the information. No care provider who discloses
otherwise confidential information to a designated receiving facility following
a request made pursuant to this section shall be held civilly or criminally
liable for disclosing such information.
III. Notwithstanding RSA 329:26 and RSA 330-A:32, a
community mental health program or state facility may disclose to an
interdisciplinary committee designated by the governor to review child
fatalities, information which is relevant to a case of suicide or traumatic
fatal injury under review by such committee. Information to be disclosed
pursuant to this paragraph shall be limited to the diagnosis and course of
treatment of the child or of the person who caused the fatality. Information
disclosed pursuant to this paragraph shall remain confidential and shall not be
subject to discovery, subpoena, or admission into evidence in any judicial or
administrative proceeding. Any person who willfully rediscloses
confidential information provided to a committee designated by the governor to
review child fatalities shall be guilty of a violation.
135-C:20 Jurisdiction. –
I. For proceedings under RSA 135-C:27-33,
jurisdiction is vested in the district court of the city or town where the
person is detained.
II. For proceedings under RSA 135-C:34-54,
jurisdiction is vested in the probate court in the county where the person
sought to be admitted resides or is detained. For a client who is subject to an
order for involuntary admission under this chapter, jurisdiction for a hearing
held pursuant to this chapter is vested in the probate court for the county
where the receiving facility that has been treating the client most recently is
located, unless the court making the initial involuntary admission order has
specifically retained jurisdiction over such person. The probate court judge who
presides at hearings held pursuant to this chapter shall be reimbursed at the
same per diem rate as court appointed referees in superior court pursuant to
RSA 519:15.
135-C:21 Representation by Attorney
General. –
The attorney general or his designee shall represent the state of
135-C:22 Right to Legal Counsel.
– The right
of a client or a person sought to be admitted to a program or facility to legal
counsel prior to and during any judicial hearing conducted under this chapter
shall be absolute and unconditional. The right to legal counsel for any client
or person sought to be admitted during any judicial proceeding conducted under
this chapter shall be waived only if the client or person sought to be admitted
makes an informed decision to do so.
135-C:23 Legal Services; Payment;
Appointment. –
The client or person sought to be admitted shall pay the costs of the legal
services in connection with hearings held under this chapter. If the client or
person sought to be admitted is unable to pay for counsel, the court shall
appoint either a member of New Hampshire Legal Assistance, or its successor
organization, or another attorney who shall be compensated at a rate as
determined by the supreme court.
135-C:24 Notice. – Before any judicial hearing
commences, the client or the person sought to be admitted shall be given
written and oral notice, in a language he understands, of his right to be
represented by legal counsel and to have legal counsel appointed for him if he
is indigent.
135-C:25 Appeals From Probate
Court. –
Notwithstanding any other provision of law, any person aggrieved by an order or
decree of the probate court has a right to a review by the supreme
court in the same manner provided for the review of cases heard before
the superior court.
135-C:26 Receiving Facility; Rules.
–
I.
II. A receiving facility may be designated by the
commissioner for one or more of the following purposes:
(a) To receive clients under RSA
135-C:27-33 beginning with initial custody and
continuing through the day following the probable cause hearing.
(b) To receive clients under RSA 135-C:27-33 for the
period of involuntary emergency admission after the probable cause hearing.
(c) To receive clients for involuntary admission under RSA 135-C:34-54.
III.
135-C:27 Involuntary Emergency
Admission; Criteria. – A person shall be eligible for involuntary emergency
admission if he is in such mental condition as a result of mental illness to
pose a likelihood of danger to himself or others.
I. As used in this section "danger to himself' is established by
demonstrating that:
(a) Within 40 days of the completion
of the petition, the person has inflicted serious bodily injury on himself or
has attempted suicide or serious self-injury and there is a likelihood the act
or attempted act will recur if admission is not ordered;
(b) Within 40 days of the completion of the petition, the person has threatened
to inflict serious bodily injury on himself and there is likelihood that an act
or attempt of serious self-injury will occur if admission is not ordered; or
(c) The person's behavior
demonstrates that he so lacks the capacity to care for his own welfare that
there is a likelihood of death, serious bodily injury, or serious debilitation
if admission is not ordered.
(d) The person meets all of the following criteria:
(1) The person has been determined to be severely mentally disabled in
accordance with rules authorized by RSA 135-C:61 for a
period of at least one year;
(2) The person has had at least one involuntary admission, within the last 2
years, pursuant to RSA 135-C:34-54;
(3) The person has no guardian of the person appointed pursuant to RSA 464-A;
(4) The person is not subject to a conditional discharge granted pursuant to
RSA 135-C:49, II;
(5) The person has refused the treatment determined necessary by a mental
health program approved by the department; and
(6) A psychiatrist at a mental health program approved by the department has
determined, based upon the person's clinical history, that there is a
substantial probability that the person's refusal to accept necessary treatment
will lead to death, serious bodily injury, or serious debilitation if admission
is not ordered.
II. As used in this section "danger to others' is
established by demonstrating that within 40 days of the completion of the
petition, the person has inflicted, attempted to inflict, or threatened to
inflict serious bodily harm on another.
135-C:28 Involuntary Emergency
Admission Examination. –
I. The involuntary emergency admission of a person shall be to the state mental
health services system under the supervision of the commissioner. The admission
may be ordered upon the certificate of a physician or A.R. N.P., as defined in
RSA 135-C:2, II-a, who is approved by either a
designated receiving facility or a community mental health program approved by
the commissioner, provided that within 3 days of the completion of the petition
the physician or A.R.N.P. has conducted, or has caused to be conducted, a
physical examination if indicated and circumstances permit, and a mental
examination. The physician or A.R.N.P. must find that the person to be admitted
meets the criteria of RSA 135-C:27. The certificate
shall state the time and, in detail, the nature of the examinations conducted.
The certificate shall also state a specific act or actions the physician or
A.R.N.P. has actually observed or which have been reported to him or her by the
petitioner or a reliable witness who shall be identified in the certificate,
and which in the physician's or A.R.N.P.'s opinion
satisfy the criteria set forth in RSA 135-C:27. The physician or A.R.N.P. shall
identify in the certificate the facility in the state mental health services
system to which the person shall be admitted. The admission shall be made to
the facility which can best provide the degree of security and treatment
required by the person and shall be consistent with the placement principles
set forth in RSA 135-C:15. As used in RSA 135-C:27-33, "petitioner' means
any individual, including a physician or A.R.N.P. completing a certificate, who
has requested that a physician or A.R.N.P. conduct or who has conducted an
examination for purposes of involuntary emergency admission. Every certificate
shall be accompanied by a written petition signed by a petitioner.
II. Upon request for involuntary emergency admission by a petitioner, if the
person sought to be admitted refuses to consent to a mental examination, a
petitioner or a law enforcement officer may sign a complaint which shall be
sworn to before a justice of the peace. The complaint shall be submitted to the
justice of the peace with the petition. The petition shall state in detail the
acts or actions of the person sought to be admitted which the petitioner has
personally observed or which have been personally reported to the petitioner
and in his or her opinion require a compulsory mental examination. If the
justice of the peace finds that a compulsory mental examination is necessary,
the justice may order the examination.
III. When a peace officer observes a person engaging in behavior which gives
the peace officer reasonable suspicion to believe that the person may be
suffering from a mental illness and probable cause to believe that unless the
person is placed in protective custody the person poses an immediate danger of
bodily injury to himself or others, the police officer may place the person in
protective custody. Any person taken into protective custody under this paragraph
shall be transported directly to an emergency room of a licensed general
hospital or to another site designated by the community mental health program
serving the area, for the purpose of determining if an involuntary emergency
admission shall be ordered in accordance with RSA 135-C:28, I. The period of
protective custody shall end when a physician or A.R.N.P. makes a determination
as to whether involuntary emergency admission shall be ordered or at the end of
6 hours, whichever event occurs first.
135-C:29 Delivery to Receiving
Facility. –
I. Upon completion of an involuntary emergency admission certificate under RSA
135-C:28, any law enforcement officer shall, except as provided in paragraph
II, take custody of the person to be admitted and immediately deliver him to
the receiving facility identified in the certificate.
II. The physician shall consult with the parent, guardian, or legal custodian
of a child subject to involuntary emergency admission regarding available
transportation alternatives. If the physician determines that the child does
not require the degree of security provided by a law enforcement vehicle, the
physician may, with the consent of the parent, guardian, or legal custodian,
authorize an ambulance service or other medical vehicle to deliver the child to
the receiving facility.
135-C:30 Notice. – At the receiving facility, any
person sought to be involuntarily admitted for involuntary emergency admission
shall be given immediate notice by the facility administrator or his designee
in simple language he may understand, and written notice within 12 hours, of
the following rights:
I. To be represented by legal counsel.
II. To have legal counsel appointed
for him if he is indigent.
III. To apply for admission on a voluntary basis.
IV. To consult with legal counsel prior to a change in admission status.
V. That involuntary emergency admission cannot exceed a period of 10 days
unless the period is extended pursuant to RSA 135-C:32.
VI. That no treatment shall be administered during involuntary emergency
admission unless he makes an informed decision, as defined in RSA 135-C:2, IX, to consent to treatment, or unless a medical or
psychiatric emergency exists in accordance with RSA 135:21-b.
135-C:31 Involuntary Emergency Admission
Hearing; Rules. –
I. Within 3 days after an involuntary emergency admission, not including
Sundays and holidays, and subject to the notice requirements of RSA 135-C:24,
there shall be a probable cause hearing in the district court having jurisdiction
to determine if there was probable cause for involuntary emergency admission.
The burden shall be on the petitioner to show that probable cause existed. The
court shall render its written decision as soon as possible after the close of
the hearing, but not later than the end of the court's next regular business
day.
II. The person sought to be admitted or the petitioner may request a
continuance of the probable cause hearing. Such requests shall be granted only
for good cause but in no case shall continuance be granted for more than 2
days. Any continuance granted for good cause shall not extend the 10-day period
of involuntary emergency admission.
III. The person sought to be admitted may, in writing, waive the probable cause
hearing required under this section. Such waiver shall state that the person
sought to be admitted has made an informed decision to waive the probable cause
hearing and that he understands that such a waiver shall result in his
admission on an emergency basis for a period not to exceed 10 days, except as
specified in RSA 135-C:32. The waiver shall be executed before a justice of any
district or municipal court. If the person sought to be admitted is found by
the court to be incapable of making an informed decision to waive probable
cause, then the waiver may be executed by that person's attorney subject to the
review of the court.
IV. For 48 hours prior to the hearing the person sought to be admitted shall
not be given medication or treatment that would adversely affect his judgment
or limit his ability to prepare for the hearing unless the person sought to be
admitted makes an informed decision to consent to treatment or unless a medical
or psychiatric emergency exists. If medication is given to the person sought to
be admitted prior to the probable cause hearing, it shall be the affirmative
obligation of the physician prescribing the medication to advise the district
court of the nature of the medication, the reason for it, and its probable
effect upon the person. Such notice may be transmitted to the court in writing
prior to the hearing or may be presented by the physician at the hearing. The
jurisdiction for the probable cause hearing shall be in the district court in
the city or town where the person is detained. Upon the request of the person
sought to be admitted or that person's attorney, a change of venue or transfer
may be granted for good cause shown.
V. If a receiving facility has not been designated to receive or maintain
custody following a probable cause hearing of a person admitted under RSA
135-C:27-33, the facility shall, within 24 hours, transfer the person to a
receiving facility which has the proper designation. A receiving facility may
transfer a person admitted under RSA 135-C:27-33 to
another receiving facility if that receiving facility can better provide the
degree of security and treatment required for the person. All transfers shall
receive prior approval of the chief administrator of the state mental health
services system. The commissioner shall adopt rules, pursuant to RSA 541-A,
relative to transfer criteria and procedures for the challenge of transfer
decisions by the persons to be transferred.
135-C:31-a Annulment of Certain
Records. –
I. If the district court finds that the petitioner has failed to meet the
burden specified in RSA 135-C:31, I, all court
documents pertaining to the petition, including the physician's or A.R.N.P's certificate, and the complaint shall be sealed
and the involuntary emergency admission shall be annulled.
II. Upon entry of an order of annulment:
(a) The person whose record is annulled shall be treated in all respects as if
the person had never been the subject of an involuntary emergency admission.
(b) In any application for employment, license or other civil right or
privilege, or in any appearance as a witness in any proceeding or hearing, a
person may be questioned about a previous involuntary emergency admission only
in terms such as "Have you ever been the subject
of an involuntary emergency admission that has not been annulled by a court?'
135-C:32 Ten-Day Limitation;
Petition for Involuntary Admission. – No person shall be admitted for an involuntary
emergency admission under RSA 135-C:27-33 for longer than a 10-day period,
unless a subsequent petition for involuntary emergency admission which contains
allegations of specific acts or actions which occurred subsequent to the
initial involuntary emergency admission is completed and the admission is
ordered by a physician or A.R.N.P., as defined in RSA 135-C:2, II-a, in
accordance with RSA 135-C:28, or unless a petition requesting a judicial
hearing on the issue of involuntary admission under RSA 135-C:34-54 has been
filed with the appropriate probate court within the involuntary admission
period. Upon the filing of the petition with the probate court, the period of
involuntary emergency admission may be extended until the issuance of the order
of the probate court pursuant to RSA 135-C:45.
135-C:33 Discharge. –
I. At any time during the period of involuntary emergency admission the
administrator of the receiving facility or designee in such facility shall
discharge the person admitted if the administrator decides that the person no
longer meets the criteria established by RSA 135-C:27. If a discharge occurs, under
this section or pursuant to a finding of no probable cause by the court, the
receiving facility shall, with the consent of the person admitted, return such
person to the place where the person resided at the time the petition and
physician's certificate were completed and signed. Unless the discharge is
pursuant to a finding of no probable cause by the court, the receiving facility
shall give notice of the discharge to the community mental health program in
the region from which the person was admitted and to the community mental
health program in the region to which the person is being discharged. The
person discharged or the person's guardian shall be given written notice of
such action taken by the receiving facility.
II. The petition, police record, transport request, and medical record
established as a result of the involuntary emergency admission shall remain
with the accepting agency and shall only be released upon informed written
consent of the individual.
III. The receiving facility shall either arrange the transportation within 24
hours of such notice or shall be liable for the cost of such transportation.
135-C:34 Involuntary Treatment
Standard. –
The standard to be used by a court, physician, or psychiatrist in determining
whether a person should be admitted to a receiving facility for treatment on an
involuntary basis shall be whether the person is in such mental condition as a
result of mental illness as to create a potentially serious likelihood of
danger to himself or to others.
135-C:35 Petition of Responsible
Person. – Any
responsible person may petition for a hearing relative to the need for
admission on an involuntary basis of another person due to mental illness under
RSA 135-C:36.
135-C:36 Petition. –
I. The petition for admission on an involuntary basis shall include:
(a) The name of the person sought to be admitted and his last known address.
(b) The specific acts or actions that the petitioner alleges satisfy RSA 135-C:34.
(c) A certificate from a physician who is approved by either a designated
receiving facility or a community mental health program approved by the
commissioner, who has examined the person sought to be admitted within 5 days
of the date the petition is filed and who agrees that, based on this examination,
such person satisfies the standard set forth in RSA 135-C:34.
(d) The names and addresses of witnesses who can testify to the occurrence of
the specific acts or actions of the person sought to be admitted which the
petitioner alleges will satisfy the requirements of RSA 135-C:34.
II. The certificate of the examining physician made upon admission, if the
person sought to be admitted is currently voluntarily admitted to a receiving
facility, or a certificate of the examining physician made prior to the
admission of the person sought to be admitted to involuntary emergency
admission in accordance with RSA 135-C:27-33, shall be sufficient as the
physician's certificate for the petition for involuntary admission, if made
within 5 days of the date of the filing of the petition.
III. The petition for admission on an involuntary basis may include a request
for appointment of a guardian over the person for the limited purpose of
providing for the respondent's health care. If such a request is made, the
petition shall include:
(a) The petitioner's connection with or relationship to the respondent;
(b) When appropriate, the name and address of the person or institution having
care or custody over the respondent;
(c) The names and addresses of adult spouses, parents, children and siblings of
the respondent, so far as they are known to the petitioner;
(d) The name, address, occupation and relationship to the respondent, if any,
of the proposed guardian; and
(e) A statement containing facts which show the necessity for appointment of a
guardian of the person for the purpose of providing health care, including
specific allegations as to the respondent's personal actions or actual
occurrences which are claimed to demonstrate his or her inability to provide for
personal needs for health care.
135-C:37 Hearing Date. – The probate court judge of original
jurisdiction shall, upon receipt of the petition, set a hearing date. The
hearing shall be held within 15 days, excluding Saturdays, Sundays, and legal
holidays, from the date of receipt of the petition.
135-C:38 Copies of Petition.
– Subsequent
to receipt of the petition for involuntary admission, the register of probate
shall, within 2 days of receipt of the petition, forward 2 copies to the person
sought to be admitted.
135-C:39 Custody Prior to Hearing.
–
I. The person sought to be admitted for treatment on an involuntary basis shall
be at liberty pending the hearing, unless:
(a) The person is under the protective custody of the department in accordance
with RSA 135-C:27-33;
(b) The client has been admitted for voluntary care and wishes to remain so;
(c) The person is already in the custody of the department due to admission for
treatment on an involuntary basis; or
(d) The person is in custody in the criminal justice system pursuant to RSA
135:17-a,
II. A period of involuntary admission ordered by a probate court pursuant to
RSA 135-C:45 may be continued under subparagraph I (c), provided that a
petition requesting a judicial hearing on the issue of subsequent involuntary
admission has been filed with the appropriate probate court within the initial
period of involuntary admission. Upon the filing of the petition, the period of
involuntary admission may be extended until the issuance of the order of the
probate court pursuant to RSA 135-C:45; provided that the probate court shall
act upon the petition within 30 days of its filing.
135-C:40 Examination by
Psychiatrist. –
Upon receipt of the petition, the court shall order the person sought to be
admitted to make himself available for an examination
by a psychiatrist designated by the court prior to the date of the hearing. A
written report prepared by a psychiatrist shall be filed with the court on or
before the day of the hearing. The report shall include the following:
I. Whether, in the opinion of the examining psychiatrist, the person sought to
be admitted meets the standard in RSA 135-C:34.
II. Whether, in the opinion of the examining psychiatrist, involuntary
admission is necessary for treatment of the person, and if so, the appropriate
period of time, in the opinion of the examining psychiatrist, for such an
admission. In determining the appropriate period of time, the examining
psychiatrist shall include, to the extent that he considers it appropriate,
time to allow for conditional discharge. Conditional discharge shall be
appropriate when the person has recovered from his mental illness to such an
extent that he no longer requires inpatient treatment but a prescribed regimen
of medical, psychiatric, or psychological care or treatment is necessary to
prevent the recurrence of the circumstances which led to the person's dangerous
condition.
III. The form of treatment best suited to the needs of the person, if, in the
opinion of the examining psychiatrist, involuntary admission is not necessary.
IV. The receiving facility which can best provide the degree of security and
treatment needed for the person.
V. Possible alternatives, including the least restrictive alternative,
considered by the examining psychiatrist.
135-C:41 Recommendations; Copy to
Person. – No
later than on the day before the hearing, 2 copies of the report prepared
pursuant to RSA 135-C:40 shall be made available to
the person sought to be admitted and to his or her attorney.
135-C:42 Continuance. – Either party may apply to the court
for a continuance of the hearing on a petition for involuntary admission which
the court may grant for good cause shown.
135-C:43 Conduct of Hearing.
– For
hearings held under this chapter, the person sought to be admitted shall have
the right to legal counsel, to present evidence on his own behalf, to have a
closed hearing unless he requests otherwise, and to cross-examine witnesses. He
shall also have the right to summon as a witness the psychiatrist who filed the
report pursuant to RSA 135-C:40 and to cross-examine
him. A transcript, which may consist only of any audio recording of the
proceedings, and at the court's discretion, shall be made of the entire
proceeding. The transcript may serve as the basis for an appeal and the costs
of the transcript shall be apportioned, within the judge's discretion, between
the state and the person sought to be admitted. The transcript or recording
shall be retained by the court for 2 years or until official notice is received
of discharge, if the person is admitted on an involuntary basis and
subsequently discharged.
135-C:44 Change of Venue. – In hearings held under this
chapter, upon the request of the person sought to be admitted, a change of venue
or transfer may be granted at the court's discretion.
135-C:45 Order of Court. –
I. In hearings held under this chapter, after hearing all the evidence, the
court may order the respondent to be released, notwithstanding expert
testimony, or it may order the person to submit to some form of treatment other
than inpatient treatment on an involuntary basis, which may include treatment
at a community mental health program approved by the commissioner. If the
examining psychiatrist recommends involuntary admission to a receiving facility
as the most desirable form of treatment, the court may so order. If the court
determines that involuntary admission to a receiving facility is necessary, but
the examining psychiatrist finds otherwise in his report under RSA 135-C:40, the court may overrule the recommendation of the
psychiatrist only after the court finds that treatment other than involuntary
admission to a receiving facility would not be in the best interests of the
person and the community.
II. In any order of admission to a receiving facility, the court shall include
in the duration of said order an appropriate period of time, if any, to allow
for conditional discharge. Admission for purposes of conditional discharge
shall be appropriate when the person has recovered from his mental illness to
such an extent that he no longer requires inpatient treatment but a prescribed
regimen of medical, psychiatric, or psychological care or treatment is
necessary to prevent the recurrence of the circumstances which led to the
person's dangerous condition.
III. If the respondent is on a conditional discharge at the time of the
hearing, the court may order involuntary admission to a receiving facility, or
renew such an order, for the purpose of permitting the respondent to remain on
conditional discharge if such treatment is necessary to prevent the recurrence
of the circumstances which led to the person's dangerous condition.
135-C:45-a Appointment of Limited
Guardian. –
I. In any case in which the petition includes a request for appointment of a
guardian, the court shall also determine whether to appoint a guardian over the
person for the purpose of providing health care. There shall be a legal
presumption of capacity, and the burden of proof shall be on the petitioner to
prove beyond a reasonable doubt that the respondent is incapacitated and in
need of a guardian.
II. At the hearing, the court shall:
(a) Inquire into the nature and extent of the functional limitations of the
respondent; and
(b) Ascertain his or her capacity to care for himself or herself with respect
to his or her health care.
III. If it is determined that the respondent possesses the capacity to care for
himself or herself regarding health care, then the court shall deny the request
for appointment of a guardian.
IV. Alternatively, the court may appoint a guardian of the person with respect
to health care as requested in the petition and confer specific powers of
guardianship on the proposed guardian after finding in the record based on evidence
beyond a reasonable doubt that:
(a) The person for whom a guardian is to be appointed is incapacitated; and
(b) The guardianship is necessary as a means of providing appropriate health
care for the incapacitated person; and
(c) There are no available alternative resources which are suitable with
respect to the incapacitated person's welfare, safety, and rehabilitation; and
(d) The guardianship is appropriate as the least restrictive form of
intervention consistent with the preservation of the civil rights and liberties
of the respondent.
V. If a guardian is appointed, letters of guardianship shall be issued, as
provided in RSA 464-A:11.
VI. Except as modified by order of the court, a guardian appointed under this
chapter shall have the powers and duties set forth in RSA 464-A:25, I(c).
VII. The provisions of RSA 464-A:10 shall govern who
may be a guardian.
VIII. Upon appointment, the guardian shall give bond to the court as provided
in RSA 464-A:21.
IX. Compensation to the guardian shall be allowed as provided in RSA 464-A:23.
X. The provisions of RSA 464-A:24 shall govern the
appointment of agents by guardians.
XI. The guardian shall file biennial reports as provided in RSA 464-A:35, give annual notice to the ward as provided in RSA
464-A:38, file a final accounting report as provided in RSA 464-A:40, and be
subject to the provisions and sanctions of RSA 464-A:37 for failure to make or
file any report within the time provided by law.
XII. The provisions of RSA 464-A:39 shall govern the
removal or resignation of the guardian.
XIII. The guardian may at any time file a petition pursuant to RSA 464-A:4 for a finding of incapacity and expansion of his or her
authority over the person or estate of the ward. Such a proceeding shall be governed
by the provisions of RSA 464-A.
135-C:46 Limitation of Order.
– No order
made pursuant to RSA 135-C:45 for involuntary
admission or any other type of treatment shall be valid for longer than 5
years. For the order to be renewed, another judicial hearing shall be held
pursuant to RSA 135-C:34-54.
135-C:47 Amended Orders. –
I. The court issuing an order for treatment, other than inpatient treatment at
a receiving facility, shall retain jurisdiction of the
case for the duration of the order. At any time during the period of such
order, any person may petition the probate court having jurisdiction for a
hearing on whether the order should be amended or the person should be
involuntarily admitted to a receiving facility.
II. The court issuing an order for inpatient treatment at a receiving facility
may retain jurisdiction of the case for the duration of the order. The court
may include in its order a provision requiring the petitioner or the receiving
facility to show cause upon a date set by the court as to why the person has
not been granted a conditional discharge under RSA 135-C:50.
(a) At such a proceeding, the burden shall be upon the petitioner or the
receiving facility to demonstrate by a preponderance of the evidence that
either:
(1) The person has been offered a conditional discharge, the conditions of the
discharge were reasonable and appropriate, and the person has not consented to
those conditions; or
(2) The person requires further inpatient treatment at the receiving facility.
(b) After hearing all the evidence, the court may order the respondent to be
released, or to submit to continued inpatient treatment on an involuntary
basis. The court may set a new date upon which the petitioner or receiving
facility shall show cause as to why the person has not been granted a
conditional discharge under RSA 135-C:50. No order made pursuant to this
paragraph shall be valid for longer than the period of time remaining on the
original order of involuntary admission.
(c) At any show cause hearing held under this paragraph, the respondent shall
have the right to legal counsel, to present evidence on his own behalf, to have
a closed hearing unless he requests otherwise, and to cross-examine witnesses.
A transcript, which may consist only of any audio recording of the proceedings,
shall be made of the entire proceeding.
135-C:48 Transfers; Rules. – A receiving facility to which a
person is ordered for involuntary admission pursuant to RSA 135-C:34-54 may transfer the person to another receiving facility
if the receiving facility to which the person is to be transferred can better
provide the degree of security and treatment required by the person. All
transfers shall require prior approval of the chief administrator of the state
mental health services system. The commissioner shall adopt rules, pursuant to
RSA 541-A, relative to transfer criteria and procedures for the challenge of
transfer decisions by the persons so transferred.
135-C:49 Discharge by
Administrator. –
I. When a person has been involuntarily admitted to a receiving facility
pursuant to RSA 135-C:34-54, or conditionally
discharged pursuant to paragraph IV of this section, the clinical staff of the
receiving facility where the person has most recently received treatment may
recommend to the administrator of the facility an absolute discharge for the
person if the clinical staff determines that the person does not require the
acute level of treatment available at the receiving facility.
II. The administrator, with the consent of the chief
administrator of the state mental health services system or designee, shall
have discretion to grant the absolute discharge based on the recommendation of
the clinical staff; provided, that the examination upon which the
recommendation was made was conducted within 3 days of the absolute discharge
order.
III. The administrator shall, in writing, immediately notify
the court entering the original order of commitment that the person has been
given an absolute discharge prior to the expiration of the order of the
commitment. Upon receipt of the notice, the court shall make the notice part of
the person's file and shall enter the discharge and the date of discharge upon
the docket.
IV. The administrator of the facility may grant a person,
whose condition is not considered appropriate for absolute discharge under
paragraph I of this section, a conditional discharge.
135-C:50 Conditions of Conditional
Discharge. –
I. The administrator of a receiving facility may grant a conditional discharge
under this chapter to any person who consents, by an informed decision, to
participate in continuing treatment on an out-patient basis, who agrees to be
subject to any rules adopted by the commissioner relative to conditional
discharge, and who understands the conditions of his discharge. The
administrator of the facility or his designee shall prepare, deliver a copy of,
and read to the person being conditionally discharged a written statement of
the conditions of conditional discharge and a warning that violation of those
conditions may result in revocation of the conditional discharge pursuant to
RSA 135-C:51.
II. A conditional discharge shall not exceed the period of time remaining on
the order of involuntary admission and shall become absolute at the end of its
term.
III. During the term of conditional discharge, the person conditionally
discharged shall be provided with continuing treatment on an out-patient basis
by a community mental health program approved by the commissioner.
135-C:51 Revocation of Conditional
Discharge. –
I. If a psychiatrist at a community mental health program providing continuing
treatment on an outpatient basis to a person conditionally discharged pursuant
to RSA 135-C:50, reasonably believes that:
(a) The person has violated a condition of the discharge; or
(b) A condition or circumstance exists which may create a potentially serious
likelihood of danger to the person or to others, the psychiatrist may conduct
or cause to be conducted by a treatment team member or an emergency service
staff member, an examination of the person to determine if the conditional
discharge should be revoked. The examination may be conducted only after the
person has been given written notice of the belief, and the reasons therefor, that a violation of the conditional discharge has
occurred or other circumstances or condition exists which may create a
potentially serious likelihood of danger to the person or to others.
II. If the person refuses to consent to an examination under paragraph I, the
psychiatrist or other representative of the community mental health program may
sign a complaint. Upon issuance of such a complaint, any law enforcement
officer shall take custody of the person and immediately deliver him to the
place specified in the complaint.
III. If the psychiatrist, following the examination the psychiatrist conducted
or caused to be conducted of the person, finds that the person either has
violated a condition of the discharge or is in such a mental condition as a
result of mental illness as to create a potentially serious likelihood of
danger to himself or to others, he may temporarily revoke the conditional
discharge. If the conditional discharge is temporarily revoked, the
psychiatrist, or designee, shall inform the person affected in writing giving
the reasons for the revocation and the psychiatrist shall identify the
receiving facility to which the person is to be delivered.
IV. A law enforcement officer shall take custody of the person whose
conditional discharge was temporarily revoked under paragraph III and deliver
him, together with a copy of the notice and the reasons for the temporary
revocation, to the receiving facility identified by the psychiatrist, where he
shall be personally examined by the administrator of the facility or his
designee and the reasons for temporary revocation of the discharge shall be
reviewed. Following such examination and review, if the administrator of the
facility or his qualified designee finds that the person conditionally
discharged has violated a condition of the discharge or is in such a mental
condition as a result of mental illness as to create a potentially serious
likelihood of danger to himself or to others, he may revoke absolutely the
conditional discharge. He shall provide to such person written notice of the
reasons for the absolute revocation. The person whose conditional discharge has
been absolutely revoked shall be subject to the terms and conditions of the
order of involuntary admission made pursuant to RSA 135-C:34-54 from which conditional
discharge was granted as if the conditional discharge had not been granted.
V. If the psychiatrist who conducted or caused to be conducted an examination
under paragraph III, or the administrator of the facility, or a qualified
designee, performing an examination and review pursuant to paragraph IV finds
that the person conditionally discharged either has not violated a condition of
the discharge or is not in such a condition as a result of mental illness as to
create a potentially serious likelihood of danger to himself or others, the
person shall be returned by the program or facility which has custody of the
person to the location where he was initially taken into custody.
VI. A person conditionally discharged pursuant to RSA 135-C:50
may be admitted to a receiving facility by an involuntary emergency admission
under RSA 135-C:27-33. In such cases, the finding of probable cause for
involuntary emergency admission by the district court pursuant to RSA 135-C:31,
I, shall authorize the person's admission for no longer than a 10-day period,
as provided in RSA 135-C:32, unless during the period of involuntary emergency
admission the person's conditional discharge is absolutely revoked. No absolute
revocation of conditional discharge shall be made pursuant to this section
unless the administrator of the facility or his or her qualified designee
personally examines the individual and finds that the person conditionally
discharged has violated a condition of the discharge or is in such a mental condition
as a result of mental illness so as to create a potentially serious likelihood
of danger to himself or to others. If a person's conditional discharge is
absolutely revoked pursuant to this section, the person shall receive notice of
the reasons for the absolute revocation and shall have a right to appeal as
provided in RSA 135-C:52.
135-C:52 Appeal. – A person whose conditional
discharge is revoked, pursuant to RSA 135-C:51, may
appeal the decision to the chief administrator of the state mental health
services system. The person shall be entitled to a hearing on the appeal within
5 days, excluding weekends and holidays, of the administrator's receipt of
request for the hearing. The commissioner shall adopt rules, in accordance with
RSA 541-A, which shall include provision for legal counsel and procedures for
waiver of the hearing.
135-C:53 Action for Discharge.
– Any person
who has been involuntarily admitted to a receiving facility may file at the
probate court of the county in which he was originally admitted, or where he
resides, a petition setting forth his name, the underlying circumstances and
date of the prior order of the court ordering his involuntary admission, a
request for discharge from care and custody or admission to a receiving facility,
and the reasons for such request. The petition shall be accompanied by the
certificate of a psychiatrist stating that the patient is no longer in need of
involuntary admission and setting forth the facts upon which such an opinion is
based. Upon receipt of the petition and the certificate, the court shall
conduct a hearing pursuant to RSA 135-C:34-54.
135-C:54 Habeas Corpus. – This chapter shall not be construed
to deprive any person of the benefits of the writ of habeas corpus. If the
court issuing the writ of habeas corpus grants relief, the court shall enter an
order discharging the person and shall transmit a certified copy of it to the
probate court entering the original order of involuntary admission. Upon
receipt of the certified copy, the probate court shall enter an order finding
that such person has been discharged by order of the court.
135-C:55 Scope. – The rights established in RSA 135-C:56-60 shall only apply to those persons who have been found
eligible for services under RSA 135-C:13 and to those persons who have been
admitted to receiving facilities.
135-C:56 Fundamental Rights.
–
I. No person receiving treatment for mental illness shall be deprived of any
legal right to which all citizens are entitled, except as provided for by law.
II. No person shall be deemed incompetent to manage his affairs, to contract,
to hold professional, occupational, or motor vehicle driver's licenses, to
marry or to obtain a divorce, to vote, to make a will or to exercise any other
civil right solely by reason of that person's admission to the mental health
services system.
III. No person receiving mental health services shall be subjected to abuse or
neglect.
IV. No person receiving mental health services shall be discriminated against
in any manner because of race, color, sex, religion, national origin, age,
disability, or degree of disability.
V. Persons receiving mental health services shall be treated with dignity and
respect.
135-C:57 Treatment Rights; Rules.
– Persons
receiving mental health services shall have the right to:
I. An individual service plan developed in accordance with 135-C:19.
II. Be informed of and to give consent before
administration of any treatment. All elements of an informed decision as
defined in RSA 135-C:2, IX shall be present.
III. Refuse all forms of medication, treatment, or services, except emergency
treatment under the terms and conditions prescribed by law or by rules adopted
by the commissioner under RSA 541-A.
IV. Treatment in the least restrictive environment necessary to achieve the
purposes of the treatment.
V. Freedom from seclusion or physical or pharmacological restraint. Seclusion
or restraint shall be administered only with the consent of the person, who has
made an informed decision, or as a form of emergency treatment imposed by law
or by rules, adopted by the commissioner under RSA 541-A.
135-C:58 Communication Rights for
Persons in Receiving Facilities; Rules. – Every person admitted to a
receiving facility shall have the right to communicate freely and privately by
mail and telephone with persons outside the facility,
and to receive visitors, unless it is determined that this communication or
visitation has harmed or will harm the person or others. The commissioner shall
adopt rules, pursuant to RSA 541-A, relative to communication procedures.
135-C:59 Notification of Individual
Rights. – All
persons receiving mental health services shall be informed of the rights
guaranteed by this chapter, and by the rules it authorizes to be adopted under
RSA 541-A by the commissioner, promptly upon admission or upon determination of
eligibility for services. All receiving facilities, community mental health
programs, and community residences shall post a notice and an explanation of
these rights.
135-C:60 Guardianship. – Whenever it appears to the
commissioner that a client in the mental health services system by reason of
mental illness is substantially deprived of his capacity to manage his own
affairs and is at risk of substantial harm to person or estate as a result, and
the client does not have a legal guardian, the commissioner shall take such
steps as are appropriate to safeguard the client as may be consistent with RSA
464-A and RSA 547-B, including the nomination of a guardian when no less
restrictive alternative is available.
135-C:61 Rulemaking. – The commissioner shall adopt rules,
pursuant to RSA 541-A, relative to:
I. A definition of "severely mentally disabled' or "severe mental
disability'.
II. Eligibility criteria and procedures for admission to the state facilities
as required by RSA 135-C:4 and 135-C:13.
III. Regulating state services as authorized by RSA 135-C:5.
IV. Necessary criteria and the process of approval for community mental health
programs as required by RSA 135-C:10.
V. Client withdrawal procedures in accordance with RSA 135-C:16.
VI. The termination or suspension of services by a program or facility in
accordance with RSA 135-C:18.
VII. Development of individual service plans for clients under RSA 135-C:19.
VIII. Criteria and procedures for designating a facility as a receiving
facility as required by RSA 135-C:26.
IX. Transfers by one receiving facility to another and the procedures for
challenging that transfer in accordance with RSA 135-C:48.
X. Appeals from revocation of a conditional discharge in accordance with RSA
135-C:52.
XI. Treatment and communication rights of persons receiving mental health
services as provided in RSA 135-C:57 and 58.
XII. Any other matter necessary to the administration of this chapter.
135-C:62 Custody and
Transportation. –
I. Except as provided in RSA 135-C:29, any law enforcement officer shall take
custody of persons who are subject to proceedings for involuntary emergency
admission; involuntary admission, or temporary revocation of a conditional
discharge under RSA 135-C in the following circumstances:
(a) Upon completion of an involuntary emergency admission certificate in
accordance with RSA 135-C:28, I;
(b) Upon issuance by a justice of the peace of an order for a compulsory mental
examination pursuant to RSA 135-C:28, II;
(c) Upon a finding of probable cause at an involuntary emergency admission
hearing held pursuant to RSA 135-C:31;
(d) Upon issuance of an order for involuntary admission pursuant to RSA 135-C:45;
(e) Upon issuance of an order for an examination pursuant to RSA 135-C:51, II;
(f) Upon a determination by a psychiatrist at a county mental health program to
revoke a conditional discharge temporarily pursuant to RSA 135-C:51, III; or
(g) As necessary to ensure the presence of the person at hearings or
examinations conducted under this chapter, to effect a
transfer between receiving facilities, or to carry out any other lawful order
of a court.
II. A law enforcement officer shall also transport any persons taken into
custody to the appropriate receiving facility, court, place of examination, or
other location.
135-C:63 Duty to Transport. – Upon request, the office of the
sheriff of the county in which any person is located who is to be taken into
custody in accordance with RSA 135-C:62 shall take
said person into custody and transport that person to the appropriate
destination.
135-C:63-a Proceedings of Quality
Assurance Program; Confidentiality. –
(a) "Records' means records of interviews, internal reviews and
investigations, and all reports, statements, minutes, memoranda, charts,
statistics, and other documentation generated during the activities of a
quality assurance program. Records shall not mean original medical records or
other records kept relative to any patient in the course of the business of
operating a community mental health program.
(b) "Quality assurance program' means a comprehensive, on-going,
organization-wide system of mechanisms for monitoring and evaluating the
quality and appropriateness of the care provided, so that important problems
and trends in the delivery of care are identified and that steps are taken to
correct problems and to take advantage of opportunities to improve care.
II. Except as provided under RSA 135-C:5, II, records of a community mental
health program's quality assurance program, including those of its functional
components and committees as defined by the organization's quality assurance
plans, organized to evaluate matters relating to the care and treatment of
patients and to improve the quality of care provided and testimony by members
on the board of directors of the community mental health program, medical and
clinical staff, employees, or other committee attendees relating to activities
of the quality assurance program shall be confidential and privileged and shall
be protected from direct or indirect means of discovery, subpoena, or admission
into evidence in any judicial or administrative proceeding. However,
information, documents, or records otherwise available from original sources
are not to be construed as immune from discovery or use in any such civil or
administrative action merely because they were presented to a quality assurance
program, and any person who supplies information or testifies as part of a
quality assurance program, or who is a member of a quality assurance program
committee, may not be prevented from testifying as to matters within his or her
knowledge, but such witness may not be asked about his or her testimony before
such program, or opinions formed by him or her, as a result of committee
participation. Further, a program's records shall be discoverable in either of
the following cases:
(a) A judicial or administrative proceeding brought by a community mental
health program, its quality assurance program, or its board of directors to
revoke or restrict the license or certification of a staff member; or
(b) A proceeding alleging repetitive malicious action and personal injury
brought against a staff member.
III. A community mental health program board of directors or trustees may waive
its privilege under this section and release information or present records of
the quality assurance program by discovery, subpoena, or admission into
evidence in any judicial or administrative proceeding.
IV. No directors, trustees, medical or clinical staff, employees, or other
attendees of the quality assurance program shall be held liable in any action
for damages or other relief arising from the providing of information to a
quality assurance program or in any judicial or administrative proceeding.
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