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Last updated January 2004
MENTAL HYGIENE
ARTICLE 9 – HOSPITALIZATION OF
THE MENTALLY ILL
§ 9.01 Definitions.
§ 9.03 Admission to a hospital.
§ 9.05 Examining physicians and medical
certificates.
§ 9.07 Notice to all patients of their rights and of
the availability of the mental hygiene legal service.
§ 9.09 Notices to mental hygiene legal service
concerning minors.
§ 9.11 Patients` records.
§ 9.13 Voluntary admissions.
§ 9.15 Informal admissions.
S 9.17 Voluntary and informal admissions;
suitability.
§ 9.19 Voluntary and informal admissions; notices.
§ 9.21 Voluntary and informal admissions;
encouragement of.
§ 9.23 Voluntary and informal admissions; conversion
to.
§ 9.25 Voluntary and informal admissions; review of
status.
§ 9.27 Involuntary admission on medical
certification.
§ 9.29 Involuntary admission on medical
certification; notice of admission to patients and others.
§ 9.31 Involuntary admission on medical
certification; patient`s right to a hearing.
§ 9.33 Court authorization to retain an involuntary
patient.
§ 9.35 Review of court authorization to retain an
involuntary patient.
§ 9.37 Involuntary admission on certificate of a
director of community services or his designee.
§ 9.39 Emergency admissions for immediate
observation, care, and treatment.
§ 9.40 Emergency observation, care and treatment in
comprehensive psychiatric emergency programs.
§ 9.41 Emergency admissions for immediate
observation, care, and treatment; powers of certain peace officers and police
officers.
§ 9.43 Emergency admissions for immediate observation,
care, and treatment; powers of courts.
§ 9.45 Emergency admissions for immediate
observation, care, and treatment; powers of directors of community services.
§ 9.47 Duties of local officers in regard to their
mentally ill.
§ 9.48 Duties of directors of assisted outpatient
treatment programs.
§ 9.49 Transfer of juvenile delinquents.
§ 9.51 Residential treatment facilities for children
and youth; admissions.
§ 9.53 Children in the custody of social services
officials or the division for youth.
§ 9.55 Emergency admissions for immediate
observation, care and treatment; powers of qualified psychiatrists.
§ 9.57 Emergency admissions for immediate
observation, care and treatment; powers of emergency room physicians.
§ 9.58 Transport for evaluation; powers of approved
mobile crisis outreach teams.
§ 9.59 Immunity from liability.
§ 9.60 Assisted outpatient treatment.
§ 9.61 Involuntary outpatient treatment.
§ 9.63 Transportation of persons to or between
hospitals.
S 9.01 Definitions.
As used in this article:
"in need of care and treatment" means that a
person has a mental illness for which in-patient care and treatment in a
hospital is appropriate.
"in need of involuntary care and treatment" means
that a person has a mental illness for which care and treatment as a patient in
a hospital is essential to such person`s welfare and whose judgment is so
impaired that he is unable to understand the need for such care and treatment.
"likelihood to result in serious harm" or
"likely to result in serious harm" means (a) a substantial risk of
physical harm to the person as manifested by threats of or attempts at suicide
or serious bodily harm or other conduct demonstrating that the person is
dangerous to himself or herself, or (b) a substantial risk of physical harm to
other persons as manifested by homicidal or other violent behavior by which
others are placed in reasonable fear of serious physical harm.
"need for retention" means that a person who has
been admitted to a hospital pursuant to this article is in need of involuntary
care and treatment in a hospital for a further period.
"record" of a patient shall consist of admission,
transfer or retention papers and orders, and accompanying data required by this
article and by the regulations of the commissioner.
"director of community services" means the
director of community services for the mentally disabled appointed pursuant to
article forty-one of this chapter.
"qualified psychiatrist" means a physician
licensed to practice medicine in New York state who: (a) is a diplomate of the American board of psychiatry and neurology
or is eligible to be certified by that board; or (b) is certified by the
American osteopathic board of neurology and psychiatry or is eligible to be
certified by that board.
S 9.03 Admission to a
hospital.
Unless otherwise specifically provided for by statute, a
mentally ill person shall be admitted to a hospital as an in-patient only
pursuant to the provisions of this article, except that chemically dependent
patients may be admitted to chemical dependence facilities operated by such
hospitals under contract or agreement with the office of alcoholism and
substance abuse services in accordance with the provisions of article
twenty-two of this chapter. The section of the mental hygiene law under which a
patient is admitted or under which any change of legal status is subsequently
effected shall be stated in the patient`s record.
S 9.05 Examining
physicians and medical certificates.
(a) A person is disqualified from acting as an examining
physician in the following cases:
1. if he is a relative of the person
applying for the admission or of the person alleged to be mentally ill.
2. if he is a manager, trustee,
visitor, proprietor, officer, director, or stockholder of the hospital in which
the patient is hospitalized or to which it is proposed to admit such person,
except as otherwise provided in this chapter, or if he has any pecuniary
interest, directly or indirectly, in such hospital, provided that receipt of
fees, privileges, or compensation for treating or examining patients in such
hospital shall not be deemed to be a pecuniary interest.
3. if he is on the staff of a
proprietary facility to which it is proposed to admit such person.
(b) A certificate, as required by this article, must show
that the person is mentally ill and shall be based on an examination of the
person alleged to be mentally ill made within ten days prior to the date of
admission. The date of the certificate shall be the date of such examination.
All certificates shall contain the facts and circumstances upon which the
judgment of the physicians is based and shall show that the condition of the
person examined is such that he needs involuntary care and treatment in a
hospital and such other information as the commissioner may by regulation
require.
S 9.07 Notice to all
patients of their rights and of the availability of the mental hygiene legal
service.
(a) Immediately upon the admission of any patient to a
hospital or upon his conversion to a different status, the director shall
inform the patient in writing of his status, including the section of this
chapter under which he is hospitalized, and of his rights under this article,
including the availability of the mental hygiene legal service. At any time thereafter,
upon the request of the patient or of anyone on the patient`s behalf, the
patient shall be permitted to communicate with the mental hygiene legal service
and avail himself of the facilities thereof.
(b) The director of every hospital shall post copies of a
notice, in a form and manner to be determined by the commissioner, at places
throughout the hospital where such notice will be conspicuous and visible to
all patients, stating the following:
1. the availability of the mental
hygiene legal service.
2. a general statement of the rights
of patients under the various admission or retention provisions of this
article.
3. the right of the patient to
communicate with the director, the board of visitors, the commissioner of
mental health, and the mental hygiene legal service.
S 9.09 Notices to
mental hygiene legal service concerning minors.
When any person under the age of eighteen years is admitted
to or is converted from one admission status to another in any hospital,
written notice of such admission or conversion shall be given to the mental
hygiene legal service within three days thereof and such notice shall specify
the age of and admission procedure applicable to such person. No such person
shall be transferred to any other hospital without the prior consent of such
person and the prior written consent of his parent or legal guardian unless
three days prior written notice of such proposed transfer is given to the
mental hygiene legal service and an opportunity is afforded to the service to
see such person and to review the proposed transfer. Immediately upon release
or transfer of any such person, the director of the hospital shall give the
mental hygiene legal service written notice thereof.
* S 9.11 Patients`
records.
Except as to informal patients and patients admitted
pursuant to section 9.39 or 9.40, the director of a hospital shall within five
days, excluding Sunday and holidays, after the admission of any patient forward
to the mental hygiene legal service a record of such patient and shall
simultaneously forward to the department such information from the record as
the commissioner by regulation shall require. Such information from the record
in the department shall be accessible only in the manner set forth in section
33.13.
* NB Effective until
* S 9.11 Patients`
records.
Except as to informal patients and patients admitted
pursuant to section 9.39, the director of a hospital shall within five days,
excluding Sunday and holidays, after the admission of any patient forward to
the mental hygiene legal service a record of such patient and shall
simultaneously forward to the department such information from the record as
the commissioner by regulation shall require. Such information from the record
in the department shall be accessible only in the manner set forth in section
33.13.
* NB Effective
S 9.13 Voluntary
admissions.
(a) The director of any hospital may receive as a voluntary
patient any suitable person in need of care and treatment, who voluntarily
makes written application therefor. If the person is under sixteen years of
age, the person may be received as a voluntary patient only on the application
of the parent, legal guardian, or next-of-kin of such person, or, subject to
the terms of any court order or any instrument executed pursuant to section
three hundred eighty-four-a of the social services law, a social services
official or authorized agency with care and custody of such person pursuant to
the social services law, the director of the division for youth, acting in
accordance with section five hundred nine of the executive law, or a person or
entity having custody of the person pursuant to an order issued pursuant to
section seven hundred fifty-six or one thousand fifty-five of the family court
act. If the person is over sixteen and under eighteen years of age, the
director may, in his discretion, admit such person either as a voluntary
patient on his own application or on the application of the person`s parent,
legal guardian, next-of-kin, or, subject to the terms of any court order or any
instrument executed pursuant to section three hundred eighty-four-a of the
social services law, a social services official or authorized agency with care
and custody of such person pursuant to the social services law, the director of
the division for youth, acting in accordance with section five hundred nine of
the executive law, provided that such person knowingly and voluntarily
consented to such application in accordance with such section, or a person or
entity having custody of the person pursuant to an order issued pursuant to
section seven hundred fifty-six or one thousand fifty-five of the family court
act.
(b) If such voluntary patient gives notice in writing to the
director of the patient`s desire to leave the hospital, the director shall
promptly release the patient; provided, however, that if there are reasonable
grounds for belief that the patient may be in need of involuntary care and
treatment, the director may retain the patient for a period not to exceed
seventy-two hours from receipt of such notice. Before the expiration of such
seventy-two hour period, the director shall either release the patient or apply
to the supreme court or the county court in the county where the hospital is
located for an order authorizing the involuntary retention of such patient. The
application and proceedings in connection therewith shall be in the manner
prescribed in this article for a court authorization to retain an involuntary
patient, except that notice of such application shall be served forthwith and,
if a hearing be demanded, the date for hearing to be fixed by the court shall
be at a time not later than three days from the date such notice has been
received by the court. If it be determined by the court that the patient is
mentally ill and in need of retention for involuntary care and treatment in the
hospital, the court shall forthwith issue an order authorizing the retention of
such patient for care and treatment in the hospital, or, if requested by the
patient, his guardian, or committee, in such other non-public hospital as may
be within the financial means of the patient, for a period not exceeding sixty
days from the date of such order. Further application for retention of the
patient for periods not exceeding six months, one year, and two year periods
thereafter, respectively, may thereafter be made in accordance with the
provisions of this article.
In the case of a patient under eighteen years of age, such
notice requesting release of the patient may be given by the patient, by the
person who made application for his admission, by a person of equal or closer
relationship, or by the mental hygiene legal service. If such notice be given
by any other person, the director may in his discretion refuse to discharge the
patient and in the event of such refusal, such other person or the mental
hygiene legal service may apply to the supreme court or to a county court for
the release of the patient.
S 9.15 Informal
admissions.
The director of any hospital approved by the commissioner
for such purpose may receive therein as an informal patient any suitable person
in need of care and treatment requesting admission thereto. Such person may be
admitted as a patient without making formal or written application therefor and
any such patient shall be free to leave such hospital at any time after such
admission.
S 9.17 Voluntary and
informal admissions; suitability.
(a) In order for a person to be suitable for admission to a
hospital as a voluntary or informal patient, or for conversion to such status
he must be notified of and have the ability to understand the following:
1. that the hospital to which he is
requesting admission is a hospital for the mentally ill.
2. that he is making an application
for admission.
3. the nature of the voluntary or
informal status, as the case may be and the provisions governing release or
conversion to involuntary status.
(b) The department shall have the power to examine the
patients admitted pursuant to this section and determine if they belong to the voluntary
or informal class. If it be determined that any such patient does not belong to
the voluntary or informal class, the department shall determine whether the
patient shall be discharged or whether procedures shall be commenced for the
admission of such patient to a hospital pursuant to other sections of this
article. The decision of the department shall be forthwith complied with by the
director or person in charge of any such hospital. Any failure to conform to
the requirements of this section shall be considered a sufficient cause for
revocation of an operating certificate theretofore issued to a hospital.
S 9.19 Voluntary and
informal admissions; notices.
The director shall cause all patients admitted as voluntary
or informal patients to be informed once during each one hundred twenty days of
hospitalization of their status and rights, including their right to avail
themselves of the facilities of the mental hygiene legal service. At the time of such periodic notification,
the written consent of a patient to his continued stay as a voluntary or
informal patient shall be obtained and a copy thereof shall be given to the
mental hygiene legal service.
S 9.21 Voluntary and
informal admissions; encouragement of.
(a) It shall be the duty of all state and local officers
having duties to perform relating to the mentally ill to encourage any person
suitable therefor and in need of care and treatment for mental illness to apply
for admission as a voluntary or informal patient.
(b) No requirement shall be made by rule, regulation, or
otherwise as a condition to admission or retention that any person applying for
admission shall have the legal capacity to contract.
(c) A person requesting admission to a hospital, who is
suitable for admission on a voluntary or informal status, shall be admitted
only on such a voluntary or informal status. The hospital shall, in such case, have
the discretion to admit the person on either such status, except that, if the
person specifically requests admission on an informal status and is suitable
therefor, he shall be admitted only on such informal status.
S 9.23 Voluntary and
informal admissions; conversion to.
(a) Nothing contained in this article shall be construed to
prohibit any director from converting, and it shall be his duty to convert, the
admission of any involuntary patient suitable and willing to apply therefor to
a voluntary status. The mental hygiene legal service shall be given notice of
every conversion from an involuntary status to a voluntary status.
(b) Any patient converted from an involuntary status to a
voluntary status shall have the right to a judicial hearing before the supreme court
or a county court on the questions of his suitability for such conversion and
on his willingness to be so converted. The procedure for requesting such a
hearing, except as to time limitations and questions to be determined, shall be
pursuant to subdivisions (a) and (b) of section 31.31.
S 9.25 Voluntary and
informal admissions; review of status.
(a) No voluntary or informal patient, whether admitted on
such status or converted thereto, shall be continued in such status for a
period beyond twelve months from the date of commencement of such status or beyond
twelve months from the effective date of this statute, whichever is later,
unless the suitability of such patient to remain in such status and his
willingness to so remain have been reviewed. The director shall review the
suitability of such patient to remain in such status, and the mental hygiene
legal service shall review the willingness of such patient to remain in such
status. Notice of the determination of the patient`s suitability made by the
director shall be given to the mental hygiene legal service. If the mental
hygiene legal service finds that there is any ground to doubt the director`s
determination of the suitability of such patient to remain in a voluntary or
informal status or the willingness of the patient to so remain, it shall make
an application upon notice to the patient and the director of the hospital, for
a court order determining those questions. In any such proceeding, the patient
or someone on his behalf or the mental hygiene legal service may request a
hearing. If the mental hygiene legal service finds no grounds to doubt the
determination of the director as to the suitability, or the willingness of the
patient to continue in a voluntary or informal status, it shall so certify and
the patient may be continued in the hospital in such status. A copy of such
certification of review shall be filed in the patient`s record.
(b) If an application for a court order has been made and a
hearing is requested, the provisions governing hearings contained in section
31.31 shall be applicable.
(c) If an application for a court order has been made, the
court, in determining the proceeding, may approve the continued hospitalization
of the patient as a voluntary or informal patient or, if the court finds that
the patient is not suitable or willing to continue as a voluntary or informal
patient, it may order the discharge of the patient or make such other order as
it may deem appropriate in the circumstances.
(d) Prior to the termination of twelve months from the date
of the certification on such first review by the mental hygiene legal service or,
if an application for a court order has been made, from the date of
the first order and, thereafter, prior to the termination of
twelve months from any subsequent certification or subsequent order, as the case
may be, the director and the mental hygiene legal service shall conduct another
review of the patient`s suitability and willingness to remain as a voluntary or
informal patient as set forth in the foregoing subdivisions.
S 9.27 Involuntary
admission on medical certification.
(a) The director of a hospital may receive and retain
therein as a patient any person alleged to be mentally ill and in need of
involuntary care and treatment upon the certificates of two examining
physicians, accompanied by an application for the admission of such person. The
examination may be conducted jointly but each examining physician shall execute
a separate certificate.
(b) Such application must have been executed within ten days
prior to such admission. It may be executed by any one of the following:
1. any person with whom the person
alleged to be mentally ill resides.
2. the father or mother, husband or
wife, brother or sister, or the child of any such person or the nearest
available relative.
3. the committee of such person.
4. an officer of any public or well
recognized charitable institution or agency or home in whose institution the
person alleged to be mentally ill resides.
5. the director of community
services or social services official, as defined in the social services law, of
the city or county in which any such person may be.
6. the director of the hospital or
of a general hospital, as defined in article twenty-eight of the public health
law, in which the patient is hospitalized.
7. the director or person in charge
of a facility providing care to alcoholics, or substance abusers or substance
dependent persons.
8. the director of the division for
youth, acting in accordance with the provisions of section five hundred nine of
the executive law.
9. subject to the terms of any court
order or any instrument executed pursuant to section three hundred
eighty-four-a of the social services law, a social services official or
authorized agency which has, pursuant to the social services law, care and
custody or guardianship and custody of a child over the age of sixteen.
10. subject to the terms of any
court order a person or entity having custody of a child pursuant to an order
issued pursuant to section seven hundred fifty-six or one thousand fifty-five
of the family court act.
11. a qualified psychiatrist who is
either supervising the treatment of or treating such person for a mental
illness in a facility licensed or operated by the office of mental health.
(c) Such application shall contain a statement of the facts
upon which the allegation of mental illness and need for care and treatment are
based and shall be executed under penalty of perjury but shall not require the
signature of a notary public thereon.
(d) Before an examining physician completes the certificate
of examination of a person for involuntary care and treatment, he shall consider
alternative forms of care and treatment that might be adequate to provide for
the person`s needs without requiring involuntary hospitalization. If the
examining physician knows that the person he is examining for involuntary care
and treatment has been under prior treatment, he shall, insofar as possible,
consult with the physician or psychologist furnishing such prior treatment
prior to completing his certificate. Nothing in this section shall prohibit or
invalidate any involuntary admission made in accordance with the provisions of
this chapter.
(e) The director of the hospital where such person is
brought shall cause such person to be examined forthwith by a physician who
shall be a member of the psychiatric staff of such hospital other than the
original examining physicians whose certificate or certificates accompanied the
application and, if such person is found to be in need of involuntary care and
treatment, he may be admitted thereto as a patient as herein provided.
(f) Following admission to a hospital, no patient may be
sent to another hospital by any form of involuntary admission unless the mental
hygiene legal service has been given notice thereof.
(g) Applications for involuntary admission of patients to residential
treatment facilities for children and youth or transfer of involuntarily admitted
patients to such facilities shall be reviewed by the pre-admission
certification committee serving such facility in accordance with section 9.51
of this article.
(h) If a person is examined and determined to be mentally
ill, the fact that such person suffers from alcohol or substance abuse shall
not preclude commitment under this section.
(i) After an application for the admission of a person has
been completed and both physicians have examined such person and separately certified
that he or she is mentally ill and in need of involuntary care and treatment in
a hospital, either physician is authorized to request peace officers, when
acting pursuant to their special duties, or police officers, who are members of
an authorized police department or force or of a sheriff`s department, to take
into custody and transport such person to a hospital for determination by the
director whether such person qualifies for admission pursuant to this section. Upon
the request of either physician an ambulance service, as defined by subdivision
two of section three thousand one of the public health law, is authorized to
transport such person to a hospital for determination by the director whether
such person qualifies for admission pursuant to this section.
S 9.29 Involuntary
admission on medical certification; notice of admission to patients and others.
(a) The director shall cause written notice of a person`s
involuntary admission on an application supported by medical certification to
be given forthwith to the mental hygiene legal service.
(b) The director shall cause written notice of the admission
of such person, including such person`s rights under this article, to be given personally
or by mail not later than five days, excluding Sunday and holidays, after such
admission to the following:
1. the nearest relative of the
person alleged to be mentally ill, other than the applicant, if there be any
such person known to the director.
2. as many as three additional
persons, if designated in writing to receive such notice by the person so
admitted.
S 9.31 Involuntary
admission on medical certification; patient`s right to a hearing.
(a) If, at any time prior to the expiration of sixty days
from the date of involuntary admission of a patient on an application supported
by medical certification, he or any relative or friend or the mental hygiene
legal service gives notice in writing to the director of request for hearing on
the question of need for involuntary care and treatment, a hearing shall be
held as herein provided. The patient or person requesting a hearing on behalf
of the patient may designate the county where the hearing shall be held, which
shall be either in the county where the hospital is located, the county of the
patient`s residence, or the county in which the hospital to which the patient
was first admitted is located. Such hearing shall be held in the county so
designated, subject to application by any interested party, including the
director, for change of venue to any other county because of the convenience of
parties or witnesses or the condition of the patient upon notice to the persons
required to be served with notice of the patient`s initial admission.
(b) It shall be the duty of the director upon receiving
notice of such request for hearing to forward forthwith a copy of such notice
with a record of the patient to the supreme court or the county court in the county
designated by the applicant, if one be designated, or if no designation be
made, then to the supreme court or the county court in the county where such
hospital is located. A copy of such notice and record shall also be given the
mental hygiene legal service.
(c) The court which receives such notice shall fix the date
of such hearing at a time not later than five days from the date such notice is
received by the court and cause the patient, any other person requesting the
hearing, the director, the mental hygiene legal service, and such other persons
as the court may determine to be advised of such date.
Upon such date, or upon such other date to which the
proceeding may be adjourned, the court shall hear testimony and examine the
person alleged to be mentally ill, if it be deemed advisable in or out of court.
If it be determined that the patient is in need of retention, the court shall deny
the application for the patient`s release. If the patient is in a psychiatric
hospital maintained by a political subdivision of the state or in a general
hospital the court, upon notice to the patient and the mental hygiene legal
service and an opportunity to be heard, may order the patient transferred to
the jurisdiction of the department for retention in a hospital operated by the
state designated by the commissioner or to a private facility having an
appropriate operating certificate for retention therein for the balance of the
period for which the hospital is authorized to retain the patient. If it
appears, however, that the relatives of the patient or a committee of his
person are willing and able properly to care for him at some place other than a
hospital, then, upon their written consent, the court may order the transfer of
the patient to the care and custody of such relatives or such committee. If it
be determined that the patient is not mentally ill or not in need of retention,
the court shall order the release of the patient.
(d) If the court shall order the release of the patient,
such patient shall forthwith be released.
(e) The department or the director of the hospital
authorized to retain or receive and retain such patient, as the case may be,
shall be immediately furnished with a copy of the order of the court and, if a transfer
is ordered, shall immediately make provisions for the transfer of such patient.
(f) The papers in any proceeding under this article which
are filed with the county clerk shall be sealed and shall be exhibited only to
the parties to the proceeding or someone properly interested, upon order of the
court.
S 9.33 Court
authorization to retain an involuntary patient.
(a) If the director shall determine that a patient admitted
upon an application supported by medical certification, for whom there is no court
order authorizing retention for a specified period, is in need of retention and
if such patient does not agree to remain in such hospital as a voluntary
patient, the director shall apply to the supreme court or the county court in
the county where the hospital is located for an order authorizing continued
retention. Such application shall be made no later than sixty days from the
date of involuntary admission on application supported by medical certification
or thirty days from the date of an order denying an application for patient`s
release pursuant to section 9.31, whichever is later; and the hospital is
authorized to retain the patient for such further period during which the
hospital is authorized to make such application or during which the application
may be pending. The director shall cause written notice of such application to
be given the patient and a copy thereof shall be given personally or by mail to
the persons required by this article to be served with notice of such patient`s
initial admission and to the mental hygiene legal service. Such notice shall
state that a hearing may be requested and that failure to make such a request
within five days, excluding Sunday and holidays, from the date that the notice
was given to the patient will permit the entry without a hearing of an order
authorizing retention.
(b) If no request is made for a hearing on behalf of the
patient within five days, excluding Sunday and holidays, from the date such notice
of such application was given such patient, and if the mental hygiene legal
service has not requested a hearing, the court receiving the application may,
if satisfied that the patient requires continued retention for care and
treatment or transfer and continued retention, immediately issue an order
authorizing continued retention of such patient in such hospital for a period
not to exceed six months from the date of the order or, if such patient is in a
psychiatric hospital operated by a political subdivision of the state or in a
general hospital, such order may direct the transfer of such patient to the jurisdiction
of the department for retention in a hospital operated by the state or to a
private facility having an appropriate operating certificate, to be retained
therein for a period not to exceed six months from the date of such order.
(c) Upon the demand of the patient or of anyone on his
behalf or upon request of the mental hygiene legal service, the court shall, or
may on its own motion, fix a date for the hearing of the application, in like manner
as is provided for hearings in section 9.31. The provisions of such section
shall apply to the procedure for obtaining and holding a hearing and to the
granting or refusal to grant an order of retention by the court, except that if
the patient has already had a hearing, he shall not have the right to designate
initially the county in which the hearing shall be held.
(d) If the director of a hospital, in which a patient is
retained pursuant to the foregoing subdivisions of this section, shall
determine that the condition of such patient requires his further retention in
a hospital, he shall, if such patient does not agree to remain in such hospital
as a voluntary patient, apply during the period of retention authorized by the
last order of the court to the supreme court or the county court in the county
where the hospital is located for an order authorizing further continued
retention of such patient. The procedures for obtaining any order pursuant to
this subdivision shall be in accordance with the provisions of the foregoing
subdivisions of this section; provided that the patient or anyone on his behalf
or the mental hygiene legal service may request that the patient be brought
personally before the court, in which case the court shall not grant an order
for periods of one year or longer unless such patient shall have appeared personally
before the court. The period for continued retention pursuant to the first
order obtained under this subdivision shall authorize further continued
retention of the patient for not more than one year from the date of the order.
The period for the further continued retention of the patient authorized by any
subsequent order under this subdivision shall be for periods not to exceed two
years each from the date of the order.
S 9.35 Review of court
authorization to retain an involuntary patient.
If a person who has been denied release or whose retention,
continued retention, or transfer and continued retention has been authorized pursuant
to this article, or any relative or friend in his behalf, be dissatisfied with
any such order he may, within thirty days after the making of any such order,
obtain a rehearing and a review of the proceedings already had and of such
order upon a petition to a justice of the supreme court other than the judge or
justice presiding over the court making such order. Such justice shall cause a
jury to be summoned and shall try the question of the mental illness and the
need for retention of the patient so authorized to be retained. Any such
patient or the person applying on his behalf for such review may waive the
trial of the fact by a jury and consent in writing to trial of such fact by the
court. No such petition for rehearing and review shall be made by anyone other
than the person so authorized to be retained or the father, mother, husband,
wife, or child of such person, unless the petitioner shall have first obtained
the leave of the court upon good cause shown.
If the verdict of the jury, or the decision of the court
when jury trial has been waived, be that such person is not mentally ill or is
not in need of retention the justice shall forthwith discharge him, but if the verdict
of the jury, or the decision of the court where a jury trial has been waived,
be that such person is mentally ill and in need of retention the justice shall
certify that fact and make an order authorizing continued retention under the
original order. Such order shall be presented, at the time of authorization of
continued retention of such mentally ill person, to, and filed with, the
director of the hospital in which the mentally ill person is authorized to be
retained, and a copy thereof shall be forwarded to the department by such
director and filed in the office thereof. Proceedings under the order shall not
be stayed pending an appeal therefrom, except upon an order of a justice of the
supreme court, made upon a notice and after a hearing, with provisions made
therein for such temporary care or confinement of the alleged mentally ill
person as may be deemed necessary.
S 9.37 Involuntary
admission on certificate of a director of community services or his designee.
* (a) The director of a hospital, upon application by a
director of community services or an examining physician duly designated by him
or her, may receive and care for in such hospital as a patient any person who,
in the opinion of the director of community services or the director`s
designee, has a mental illness for which immediate inpatient care and treatment
in a hospital is appropriate and which is likely to result in serious harm to
himself or herself or others.
The need for immediate hospitalization shall be confirmed by
a staff physician of the hospital prior to admission. Within seventy-two hours,
excluding Sunday and holidays, after such admission, if such patient is to be
retained for care and treatment beyond such time and he or she does not agree
to remain in such hospital as a voluntary patient, the certificate of another
examining physician who is a member of the psychiatric staff of the hospital
that the patient is in need of involuntary care and treatment shall be filed
with the hospital. From the time of his or her admission under this section the
retention of such patient for care and treatment shall be subject to the
provisions for notice, hearing, review, and judicial approval of continued retention
or transfer and continued retention provided by this article for the admission
and retention of involuntary patients, provided that, for the purposes of such
provisions, the date of admission of the patient shall be deemed to be the date
when the patient was first received in the hospital under this section.
* NB Effective until
July 1, 2004
* (a) The director of a hospital, upon application by a
director of community services or an examining physician duly designated by
him, may receive and care for in such hospital as a patient any person who, in the
opinion of the director of community services or his designee, has a mental
illness for which immediate inpatient care and treatment in a hospital is
appropriate and which is likely to result in serious harm to himself or others;
"likelihood of serious harm" shall mean:
1. substantial risk of physical harm
to himself as manifested by threats of or attempts at suicide or serious bodily
harm or other conduct demonstrating that he is dangerous to himself, or
2. a substantial risk of physical
harm to other persons as manifested by homicidal or other violent behavior by
which others are placed in reasonable fear or serious physical harm.
The need for immediate hospitalization shall be confirmed by
a staff physician of the hospital prior to admission. Within seventy-two hours,
excluding Sunday and holidays, after such admission, if such patient is to be
retained for care and treatment beyond such time and he does not agree to
remain in such hospital as a voluntary patient, the certificate of another
examining physician who is a member of the psychiatric staff of the hospital
that the patient is in need of involuntary care and treatment shall be filed
with the hospital. From the time of his admission under this section the
retention of such patient for care and treatment shall be subject to the
provisions for notice, hearing, review, and judicial approval of continued
retention or transfer and continued retention provided by this article for the
admission and retention of involuntary patients, provided that, for the
purposes of such provisions, the date of admission of the patient shall be
deemed to be the date when the patient was first received in the hospital under
this section.
* NB Effective
(b) The application for admission of a patient pursuant to
this section shall be based upon a personal examination by a director of community
services or his designee. It shall be in writing and shall be filed with the
director of such hospital at the time of the patient`s reception, together with
a statement in a form prescribed by the commissioner giving such information as
he may deem appropriate.
(c) Notwithstanding the provisions of subdivision (b) of
this section, in counties with a population of less than two hundred thousand, a
director of community services who is a licensed psychologist pursuant to
article one hundred fifty-three of the education law or a certified social
worker pursuant to article one hundred fifty-four of the education law but who
is not a physician may apply for the admission of a patient pursuant to this
section without a medical examination by a designated physician, if a hospital
approved by the commissioner pursuant to section 9.39 of this chapter is not
located within thirty miles of the patient, and the director of community
services has made a reasonable effort to locate a designated examining
physician but such a designee is not immediately available and the director of
community services, after personal observation of the person, reasonably
believes that he may have a mental illness which is likely to result in serious
harm to himself or others and inpatient care and treatment of such person in a
hospital may be appropriate. In the event of an application pursuant to this
subdivision, a physician of the receiving hospital shall examine the patient
and shall not admit the patient unless he or she determines that the patient
has a mental illness for which immediate inpatient care and treatment in a
hospital is appropriate and which is likely to result in serious harm to
himself or others. If the patient is admitted, the need for hospitalization
shall be confirmed by another staff physician within twenty-four hours. An
application pursuant to this subdivision shall be in writing and shall be filed
with the director of such hospital at the time of the patient`s reception, together
with a statement in a form prescribed by the commissioner giving such
information as he may deem appropriate, including a statement of the efforts
made by the director of community services to locate a designated examining
physician prior to making an application pursuant to this subdivision.
(d) After signing the application, the director of community
services or the director`s designee shall be authorized and empowered to take into
custody, detain, transport, and provide temporary care for any such person.
Upon the written request of such director or the director`s designee it shall
be the duty of peace officers, when acting pursuant to their special duties, or
police officers who are members of the state police or of an authorized police
department or force or of a sheriff’s department to take into custody and
transport any such person as requested and directed by such director or
designee. Upon the written request of such director or designee, an ambulance
service, as defined in subdivision two of section three thousand one of the
public health law, is authorized to transport any such person.
(e) Reasonable expenses incurred by the director of
community mental hygiene services or his designee for the examination and
temporary care of the patient and his transportation to and from the hospital
shall be a charge upon the county from which the patient was admitted and shall
be paid from any funds available for such purposes.
(f) The provisions of this section shall not be applicable
to continue any patient in a hospital who has already been admitted to the
hospital under this or any other section of this article.
(g) If a person is examined and determined to be mentally
ill the fact that such person suffers from alcohol or substance abuse shall not
preclude commitment under this section.
S 9.39 Emergency admissions for immediate
observation, care, and treatment.
(a) The director of any hospital maintaining adequate staff
and facilities for the observation, examination, care, and treatment of persons
alleged to be mentally ill and approved by the commissioner to receive and
retain patients pursuant to this section may receive and retain therein as a
patient for a period of fifteen days any person alleged to have a mental
illness for which immediate observation, care, and treatment in a hospital is
appropriate and which is likely to result in serious harm to himself or others.
"Likelihood to result in serious harm" as used in this article shall
mean:
1. substantial risk of physical harm
to himself as manifested by threats of or attempts at suicide or serious bodily
harm or other conduct demonstrating that he is dangerous to himself, or
2. a substantial risk of physical
harm to other persons as manifested by homicidal or other violent behavior by
which others are placed in reasonable fear of serious physical harm.
The director shall cause to be entered upon the hospital
records the name of the person or persons, if any, who have brought such person
to the hospital and the details of the circumstances leading to the hospitalization
of such person.
The director shall admit such person pursuant to the
provisions of this section only if a staff physician of the hospital upon
examination of such person finds that such person qualifies under the
requirements of this section. Such person shall not be retained for a period of
more than forty-eight hours unless within such period such finding is confirmed
after examination by another physician who shall be a member of the psychiatric
staff of the hospital. Such person shall be served, at the time of admission,
with written notice of his status and rights as a patient under this section.
Such notice shall contain the patient`s name.
At the same time, such notice shall also be given to the mental hygiene
legal service and personally or by mail to such person or persons, not to
exceed three in number, as may be designated in writing to receive such notice
by the person alleged to be mentally ill. If at any time after admission, the
patient, any relative, friend, or the mental hygiene legal service gives notice
to the director in writing of request for court hearing on the question of need
for immediate observation, care, and treatment, a hearing shall be held as
herein provided as soon as practicable but in any event not more than five days
after such request is received, except that the commencement of such hearing
may be adjourned at the request of the patient. It shall be the duty of the
director upon receiving notice of such request for hearing to forward forthwith
a copy of such notice with a record of the patient to the supreme court or
county court in the county where such hospital is located. A copy of such
notice and record shall also be given the mental hygiene legal service. The
court which receives such notice shall fix the date of such hearing and cause
the patient or other person requesting the hearing, the director, the mental
hygiene legal service and such other persons as the court may determine to be
advised of such date. Upon such date, or upon such other date to which the
proceeding may be adjourned, the court shall hear testimony and examine the
person alleged to be mentally ill, if it be deemed advisable in or out of court,
and shall render a decision in writing that there is reasonable cause to
believe that the patient has a mental illness for which immediate inpatient
care and treatment in a hospital is appropriate and which is likely to result
in serious harm to himself or others. If it be determined that there is such
reasonable cause, the court shall forthwith issue an order authorizing the
retention of such patient for any such purpose or purposes in the hospital for
a period not to exceed fifteen days from the date of admission. Any such order
entered by the court shall not be deemed to be an adjudication that the patient
is mentally ill, but only a determination that there is reasonable cause to retain
the patient for the purposes of this section.
(b) Within fifteen days of arrival at the hospital, if a
determination is made that the person is not in need of involuntary care and treatment,
he shall be discharged unless he agrees to remain as a voluntary or informal
patient. If he is in need of involuntary care and treatment and does not agree
to remain as a voluntary or informal patient, he may be retained beyond such
fifteen day period only by admission to such hospital or another appropriate
hospital pursuant to the provisions governing involuntary admission on
application supported by medical certification and subject to the provisions
for notice, hearing, review, and judicial approval of retention or transfer and
retention governing such admissions, provided that, for the purposes of such
provisions, the date of admission of the patient shall be deemed to be the date
when the patient was first received under this section. If a hearing has been
requested pursuant to the provisions of subdivision (a), the filing of an
application for involuntary admission on medical certification shall not delay
or prevent the holding of the hearing.
(c) If a person is examined and determined to be mentally
ill the fact that such person suffers from alcohol or substance abuse shall not
preclude commitment under this section.
* S 9.40 Emergency
observation, care and treatment in comprehensive psychiatric emergency
programs.
(a) The director of any comprehensive psychiatric emergency
program may receive and retain therein for a period not to exceed seventy-two hours,
any person alleged to have a mental illness for which immediate observation,
care and treatment in such program is appropriate and which is likely to result
in serious harm to the person or others. The director shall cause to be entered
upon the program records the name of the person or persons, if any, who have
brought the person alleged to have a mental illness to the program and the
details of the circumstances leading the person or persons to bring the person
alleged to have a mental illness to the program.
(b) The director shall cause examination of such persons to
be initiated by a staff physician of the program as soon as practicable and in
any event within six hours after the person is received into the program`s
emergency room. Such person may be retained for observation, care and treatment
and further examination for up to twenty-four hours if, at the conclusion of
such examination, such physician determines that such person may have a mental
illness for which immediate observation, care and treatment in a comprehensive
psychiatric emergency program is appropriate, and which is likely to result in
serious harm to the person or others.
(c) No person shall be involuntarily retained in accordance
with this section for more than twenty-four hours, unless (i) within that time
the determination of the examining staff physician has been confirmed after examination
by another physician who is a member of the psychiatric staff of the program
and (ii) the person is admitted to an extended observation bed, as such term is
defined in section 31.27 of this chapter. At the time of admission to an
extended observation bed, such person shall be served with written notice of
his status and rights as a patient under this section. Such notice shall
contain the patient`s name. The notice shall be provided to the same persons
and in the manner as if provided pursuant to subdivision (a) of section 9.39 of
this article. Written requests for court hearings on the question of need for immediate
observation, care and treatment shall be made, and court hearings shall be
scheduled and held, in the manner provided pursuant to subdivision (a) of
section 9.39 of this article, provided however, if a person is removed or
admitted to a hospital pursuant to subdivision (e) or (f) of this section the
director of such hospital shall be substituted for the director of the
comprehensive psychiatric emergency program in all legal proceedings regarding
the continued retention of the person.
(d) If at any time it is determined that the person is no
longer in need of immediate observation, care and treatment in accordance with this
section and is not in need of involuntary care and treatment in a hospital,
such person shall be released without regard to the provisions of section 29.15
of this chapter, unless such person agrees to be admitted to another
appropriate hospital as a voluntary or informal patient.
(e) If at any time within the seventy-two hour period it is
determined that such person continues to require immediate observation, care
and treatment in accordance with this section and such requirement is likely to
continue beyond the seventy-two hour period, such person shall be removed
within a reasonable period of time to an appropriate hospital authorized to
receive and retain patients pursuant to section 9.39 of this article and such
person shall be evaluated for admission and, if appropriate, shall be admitted
to such hospital in accordance with section 9.39 of this article, except that
if the person is admitted, the fifteen day retention period of subdivision (b)
of section 9.39 of this article shall be calculated from the time such person
was initially registered into the emergency room of the comprehensive
psychiatric emergency program. Any person removed to a hospital pursuant to
this paragraph shall be removed without regard to the provisions of section 29.11
or 29.15 of this chapter and shall not be considered to have been transferred
or discharged to another hospital.
(f) Nothing in this section shall preclude the involuntary
admission of a person to an appropriate hospital pursuant to the provisions of this
article if at any time during the seventy-two hour period it is determined that
the person is in need of involuntary care and treatment in a hospital and the
person does not agree to be admitted to a hospital as a voluntary or informal
patient. Efforts shall be made to assure that any arrangements for such
involuntary admissions in an appropriate hospital shall be made within a
reasonable period of time.
(g) If a person is examined and determined to be mentally
ill the fact that such person suffers from alcohol or substance abuse shall not
preclude receipt or retention under this section.
(h) All time periods referenced in this section shall be
calculated from the time such person is initially registered into the emergency
room of the comprehensive psychiatric emergency program.
* NB Repealed
* S 9.41 Emergency
admissions for immediate observation, care, and treatment; powers of certain
peace officers and police officers.
Any peace officer, when acting pursuant to his or her
special duties, or police officer who is a member of the state police or of an authorized
police department or force or of a sheriff`s department may take into custody
any person who appears to be mentally ill and is conducting himself or herself
in a manner which is likely to result in serious harm to the person or others.
Such officer may direct the removal of such person or remove him or her to any
hospital specified in subdivision (a) of section 9.39 or any comprehensive
psychiatric emergency program specified in subdivision (a) of section 9.40, or,
pending his or her examination or admission to any such hospital or program,
temporarily detain any such person in another safe and comfortable place, in
which event, such officer shall immediately notify the director of community
services or, if there be none, the health officer of the city or county of such
action.
* NB Effective until
* S 9.41 Emergency
admissions for immediate observation, care, and treatment; powers of certain
peace officers and police officers.
Any peace officer, when acting pursuant to his special
duties, or police officer who is a member of the state police or of an
authorized police department or force or of a sheriff`s department may take
into custody any person who appears to be mentally ill and is conducting himself
in a manner which is likely to result in serious harm to himself or
others. "Likelihood to result in
serious harm" shall mean (1) substantial risk of physical harm to himself
as manifested by threats of or attempts at suicide or serious bodily harm or
other conduct demonstrating that he is dangerous to himself, or (2) a
substantial risk of physical harm to other persons as manifested by homicidal
or other violent behavior by which others are placed in reasonable fear of serious
physical harm. Such officer may direct the removal of such person or remove him
to any hospital specified in subdivision (a) of section 9.39 or, pending his
examination or admission to any such hospital, temporarily detain any such
person in another safe and comfortable place, in which event, such officer
shall immediately notify the director of community services or, if there be
none, the health officer of the city or county of such action.
* NB Effective July 1,
2004
* S 9.43 Emergency
admissions for immediate observation, care, and treatment; powers of courts.
(a) Whenever any court of inferior or general jurisdiction
is informed by verified statement that a person is apparently mentally ill and
is conducting himself or herself in a manner which in a person who is not mentally
ill would be deemed disorderly conduct or which is likely to result in serious
harm to himself or herself, such court shall issue a warrant directing that
such person be brought before it. If, when said person is brought before the
court, it appears to the court, on the basis of evidence presented to it, that
such person has or may have a mental illness which is likely to result in
serious harm to himself or herself or others, the court shall issue a civil
order directing his or her removal to any hospital specified in subdivision (a)
of section 9.39 or any comprehensive psychiatric emergency program specified in
subdivision (a) of section 9.40, willing to receive such person for a determination
by the director of such hospital or program whether such person should be
retained therein pursuant to such section.
(b) Whenever a person before a court in a criminal action
appears to have a mental illness which is likely to result in serious harm to himself
or herself or others and the court determines either that the crime has not
been committed or that there is not sufficient cause to believe that such
person is guilty thereof, the court may issue a civil order as above provided,
and in such cases the criminal action shall
terminate.
* NB Effective until
July 1, 2004
* S 9.43 Emergency
admissions for immediate observation, care, and treatment; powers of courts.
(a) Whenever any court of inferior or general jurisdiction
is informed by verified statement that a person is apparently mentally ill and
is conducting himself in a manner which in a person who is not mentally ill would
be deemed disorderly conduct or which is likely to result in serious harm to
himself or others as defined in section 31.39, such court shall issue a warrant
directing that such person be brought before it. If, when said person is brought before the
court, it appears to the court, on the basis of evidence presented to it, that
such person has or may have a mental illness which is likely to result in
serious harm to himself or others, the court shall issue a civil order
directing his removal to any hospital specified in subdivision (a) of section
31.39 willing to receive such person for a determination by the director of such
hospital whether such person should be retained therein pursuant to such
section.
(b) Whenever a person before a court in a criminal action
appears to have a mental illness which is likely to result in serious harm to himself
or others and the court determines either that the crime has not been committed
or that there is not sufficient cause to believe that such person is guilty
thereof, the court may issue a civil order as above provided, and in such cases
the criminal action shall terminate.
* NB Effective July 1,
2004
* S 9.45 Emergency
admissions for immediate observation, care, and reatment;
powers of directors of community services.
The director of community services or the director`s
designee shall have the power to direct the removal of any person, within his
or her jurisdiction, to a hospital approved by the commissioner pursuant to subdivision
(a) of section 9.39 of this article, or to a comprehensive psychiatric
emergency program pursuant to subdivision (a) of section 9.40 of this article,
if the parent, adult sibling, spouse or child of the person, the committee of
the person, a licensed psychologist, registered professional nurse or certified
social worker currently responsible for providing treatment services to the
person, a licensed physician, health officer, peace officer or police officer
reports to him that such person has a mental illness for which immediate care
and treatment in a hospital is appropriate and which is likely to result in serious
harm to himself or herself or others. It shall be the duty of peace officers,
when acting pursuant to their special duties, or police officers, who are
members of an authorized police department or force or of a sheriff`s
department to assist representatives of such director to take into custody and
transport any such person. Upon the request of a director of community services
or the director`s designee an ambulance service, as defined in subdivision two
of section three thousand one of the public health law, is authorized to transport
any such person. Such person may then be retained in a hospital pursuant to the
provisions of section 9.39 or in a comprehensive psychiatric emergency program pursuant
to the provisions of section 9.40 of this article.
* NB Effective until
July 1, 2004
* S 9.45 Emergency
admissions for immediate observation, care, and treatment; powers of directors
of community services.
The director of community services or his designee shall
have the power to direct the removal of any person, within his jurisdiction, to
a hospital approved by the commissioner pursuant to subdivision (a) of section
9.39 of this article if the parent, spouse, or child of the person, a licensed
physician, health officer, peace officer or police officer reports to him that
such person has a mental illness for which immediate care and treatment in a
hospital is appropriate and which is likely to result in serious harm to
himself or others, as defined in section 9.39 of this article. It shall be the
duty of peace officers, when acting pursuant to their special duties, or police
officers, who are members of an authorized police department or force or of a sheriff`s
department to assist representatives of such director to take into custody and
transport any such person. Upon the request of a director of community services
or his designee an ambulance service, as defined in subdivision two of section
three thousand one of the public health law, is authorized to transport any
such person. Such person may then be retained pursuant to the provisions of
section 9.39 of this article.
* NB Effective July 1,
2004
S 9.47 Duties of local
officers in regard to their mentally ill.
(a) All directors of community services, health officers,
and social services officials, as defined by the social services law, are
charged with the duty of seeing that all mentally ill persons within their respective
communities who are in need of care and treatment at a hospital are admitted to
a hospital pursuant to the provisions of this article. Social services officials
and health officers shall notify the director of community services of any such
person coming to their attention. Pending the determination of the condition of
an alleged mentally ill person, it shall be the duty of the director of
community services and, if there be no such director, of the local health
officer to provide for the proper care of such person in a suitable facility.
* (b) All directors of community services shall be
responsible for the filing of petitions for assisted outpatient treatment
pursuant to paragraph (vi) of subdivision (e) of section 9.60 of this article,
for the receipt and investigation of reports of persons who are alleged to be
in need of such treatment and for coordinating the delivery of court ordered
services with program coordinators, appointed by the commissioner of mental
health, pursuant to subdivision (f) of section 7.17 of this chapter. In
discharge of the duties imposed by subdivision (b) of section 9.60 of this
article, directors of community services may provide services directly, or may
coordinate services with the offices of the department or may contract with any
public or private provider to provide services for such programs as may be
necessary to carry out the duties imposed pursuant to this subdivision.
* NB Repealed June 30,
2005
* S 9.48 Duties of
directors of assisted outpatient treatment programs.
(a)(1) Directors of assisted outpatient treatment programs
established pursuant to section 9.60 of this article shall provide a written
report to the program coordinators, appointed by the commissioner of mental health
pursuant to subdivision (f) of section 7.17 of this chapter, within three days
of the issuance of a court order. The report shall demonstrate that mechanisms
are in place to ensure the delivery of services and medications as required by
the court order and shall include, but not be limited to the following:
(i) a copy of the court order;
(ii) a copy of the written treatment
plan;
(iii) the identity of the case
manager or assertive community treatment team, including the name and contact
data of the organization which the case manager or assertive community
treatment team member represents;
(iv) the identity of providers of
services; and
(v) the date on which services have
commenced or will commence.
(2) The directors of assisted
outpatient treatment programs shall ensure the timely delivery of services
described in paragraph one of subdivision (a) of section 9.60 of this article
pursuant to any court order issued under such section. Directors of assisted
outpatient treatment programs shall immediately commence corrective action upon
receiving notice from program coordinators, that services are not being provided
in a timely manner. Such directors shall inform the program coordinator of such
corrective action.
(b) Directors of assisted outpatient treatment programs
shall submit quarterly reports to the program coordinators regarding the
assisted outpatient treatment program operated or administered by such
director. The report shall include the following information:
(i) the names of individuals served
by the program;
(ii) the percentage of petitions for
assisted outpatient treatment that are granted by the court;
(iii) any change in status of
assisted outpatients, including but not limited to the number of individuals
who have failed to comply with court ordered assisted outpatient treatment;
(iv) a description of material
changes in written treatment plans of assisted outpatients;
(v) any change in case managers;
(vi) a description of the categories
of services which have been ordered by the court;
(vii) living arrangements of
individuals served by the program including the number, if any, who are
homeless;
(viii) any other information as
required by the commissioner of mental health; and
(ix) any recommendations to improve
the program locally or statewide.
* NB Repealed June 30,
2005
S 9.49 Transfer of
juvenile delinquents.
(a) The commissioner shall receive and arrange the admission
to the appropriate office facility of juvenile delinquents temporarily transferred
to his custody pursuant to section 353.4 of the family court act.
(b) Immediately upon the admission of a juvenile to an
office facility pursuant to this section, the director shall comply with the
provisions of section 9.07 of this chapter, and the mental hygiene legal
service shall contact such juvenile and explain and make available the facilities
thereof. Any juvenile placed pursuant to this section shall be subject to the
provisions of article nine of this chapter.
S 9.51 Residential
treatment facilities for children and youth; admissions.
(a) The director of a residential treatment facility for
children and youth may receive as a patient a person in need of care and
treatment in such a facility who has been certified as needing such care by the
pre-admission certification committee serving the facility and in accordance
with priorities for admission established by such committee, as provided by
this section. Subject to the provisions of this section, the provisions of this
article shall apply to admission and retention of patients to residential
treatment facilities for children and youth.
(b) Persons admitted as in-patients to hospitals operated by
the office of mental health upon the application of the director of the division
for youth pursuant to section five hundred nine of the executive law or 353.4
of the family court act who are not subject to a restrictive placement pursuant
to section 353.5 of the family court act, may, if appropriate, and subject to
the provisions of subdivision (d) of this section, be transferred to a
residential treatment facility for children and youth. The director of the division for youth shall
be notified of any such transfer. When appropriate, the director of the residential
treatment facility may arrange the return of a patient so transferred to the
hospital or the transfer of a patient to another hospital or, in accordance
with subdivision four of section five hundred nine of the executive law, to the
division for youth.
(c) The commissioner of mental health shall designate
pre-admission certification committees for defined geographic areas to evaluate
each person proposed for admission or transfer to a residential treatment facility
for children and youth. When designating persons to serve on pre-admission
certification committees, the commissioners shall assure that the interests of
the people residing in the area to be served by each committee are represented.
Such committees shall include a person designated by the office of mental
health, a person designated by the state commissioner of social services and a
person designated by the state commissioner of education. The commissioner of
mental health shall consult with the conference of local mental hygiene
directors and the commissioner of social services shall consult with county
commissioners of social services in the area to be served by a committee prior
to designating persons to serve on a committee. The commissioners may designate
persons who are not state employees to serve on pre-admission certification
committees. Membership of pre-admission certification committees shall be
limited to persons licensed in accordance with the education law to practice
medicine, nursing, psychology or social work.
In the event the persons originally designated to a
committee by the commissioners do not include a physician, the commissioner of
mental health shall designate a physician to serve as an additional member of the
committee. Each pre-admission certification committee shall designate five
persons representing local governments, voluntary agencies, parents and other
interested persons who shall serve as an advisory board to the committee. Such
board shall have the right to visit residential treatment facilities for
children and youth served by the committee and shall have the right to review
clinical records obtained by the pre-admission certification committee and
shall be bound by the confidentiality requirements of section 33.13 of this
chapter.
(d) All applications for admission or transfer of an
individual to a residential treatment facility for children and youth shall be
referred to a pre-admission certification committee for evaluation of the needs
of the individual and certification of the individual`s need for treatment in a
residential treatment facility for children and youth. Applications shall
include an assessment of the individual`s psychiatric, medical and social needs
prepared in accordance with a uniform assessment method specified by the
regulations of the commissioner. The committee may at its discretion refer an
applicant to a hospital or other facility operated or licensed by the office
for an additional assessment. In the event of such an additional assessment of the
individual`s needs, the facility conducting the assessment shall attempt to
receive all third party insurance or federal reimbursement available as payment
for the assessment. The state shall pay the balance of the fees which may be
charged by the provider in accordance with applicable provisions of law. In addition, if necessary, in accordance with
section four thousand five of the education law, the pre-admission certification
committee shall obtain an evaluation of the educational needs of the child by
the committee on special education of the school district of residence. The
pre-admission certification committee shall review all requests for evaluation
and certification within thirty days of receipt of a complete application and
any additional assessments it may require and, using a uniform assessment
method specified by regulation of the commissioner, evaluate the psychiatric,
medical and social needs of the proposed admittee and certify: (i) the
individual`s need for services in a residential treatment facility for children
and youth and (ii) the immediacy of that need, given the availability of such
services in the area and the needs of other children evaluated by the committee
and certified as eligible for admission to a residential treatment facility for
children and youth who have not yet been admitted to such a facility. A pre-admission certification committee shall
not certify an individual for admission unless it finds that:
(1) Available ambulatory care
resources and other residential placements do not meet the treatment needs of
the individual;
(2) Proper treatment of the
individual`s psychiatric condition requires in-patient care and treatment under
the direction of a physician; and
(3) Care and treatment in a
residential treatment facility for children and youth can reasonably be expected
to improve the individual`s condition or prevent further regression so that
services will no longer be needed, provided that a poor prognosis shall not in itself
constitute grounds for a denial of certification if treatment can be expected
to effect a change in prognosis. All decisions of the committee to recommend
admission or priority of admission shall be based on the unanimous vote of
those present. The decision of the committee shall be reported to the
applicant. In the event a committee evaluates a child who is the subject of a
proceeding currently pending in the family court, the committee shall report
its decision to the family court.
No residential treatment facility for children and youth
shall admit a person who has not been certified as suitable for such admission
by the appropriate pre-admission certification committee. Residential treatment
facilities shall admit children in accordance with priorities for admission of
children most immediately in need of such services established by the pre-admission
certification committee serving the facility in accordance with standards
established by the commissioner.
(e) Notwithstanding any inconsistent provision of law, no
government agency shall make payments pursuant to title nineteen of the federal
social security act or articles five and six of the social services law to a
residential treatment facility for children and youth for service to a person
whose need for care and treatment in such a facility was not certified pursuant
to this section.
(f) No person shall be admitted to a residential treatment
facility for children and youth who has a mental illness which presents a likelihood
of serious harm to others; "likelihood of serious harm" shall
mean a substantial risk of physical harm to other persons as
manifested by recent homicidal or other violent behavior by which others are
placed in reasonable fear of serious physical harm.
(g) Notwithstanding any other provision of law,
pre-admission certification committees shall be entitled to review clinical
records maintained by any person or entity which pertain to an individual on
whose behalf an application is made for admission to a
residential treatment facility for children and youth. Any clinical records
received by a pre-admission certification committee and all assessments
submitted to the committee shall be kept confidential in accordance with the provisions
of section 33.13 of the mental hygiene law, provided, however, that the
commissioner may have access to and receive copies of such records for the
purpose of evaluating the operation and effectiveness of the committee.
Confidentiality of clinical records of treatment of a person
in a residential treatment facility for children and youth shall be maintained
as required in section 33.13 of this chapter. That portion of the clinical
record maintained by a residential treatment facility for children and youth
operated by an authorized agency specifically related to medical care and
treatment shall not be considered part of the record required to be maintained
by such authorized agency pursuant to section three hundred seventy-two of the
social services law and shall not be discoverable in a proceeding under section
three hundred fifty-eight-a or three hundred ninety-two of the social services
law except upon order of the family court; provided, however, that all other
information required by a social services district or the state department of
social services for purposes of sections three hundred fifty-eight-a, three hundred
ninety-two, four hundred nine-e and four hundred nine-f of the social services
law shall be furnished on request, and the confidentiality of such information
shall be safeguarded as provided in section four hundred sixty-e of the social
services law.
S 9.53 Children in the
custody of social services officials or the division for youth.
(a) Admission of a child in the care and custody of a social
services official or authorized agency, the director of the division for youth
or a person or entity granted such custody pursuant to section seven hundred
fifty-six or one thousand fifty-five of the family court act to a hospital or
residential treatment facility for children and youth shall not be considered
to effect a change in custody of such child and the responsibilities of such
person or entity having custody of the child shall continue as described in the
social services law, the executive law, the family court act and in any court
order granting such custody.
(b) Persons in the custody of a social services official,
authorized agency, the division for youth or another person or entity pursuant
to an outstanding and valid court order shall only be released to the custody
of that person or entity.
(c) Prior to the discharge or release of a child who at the
time of such release remains in the custody of a social services official, authorized
agency, the division for youth, or a person or entity granted such custody
pursuant to section seven hundred fifty-six or one thousand fifty-five of the
family court act, the facility in which the child is receiving treatment shall
plan the discharge of the child as required in section 29.15 of this chapter.
The facility shall prepare the plan in collaboration with the person or entity
having custody of the child and it shall be the duty of such person or entity
to cooperate with the facility in that effort. Notwithstanding any inconsistent
provision of law, and subject to separate interagency agreements to be
negotiated by the commissioner of mental health and the commissioner of social services
and the commissioner of mental health and the director of the division for
youth, information derived from the clinical record as required by this section
may be revealed to the person or entity having custody of the child, to the
extent release of such information is necessary to assure adequate discharge
planning.
* S 9.55 Emergency
admissions for immediate observation, care and treatment; powers of qualified
psychiatrists.
A qualified psychiatrist shall have the power to direct the
removal of any person, whose treatment for a mental illness he or she is either
supervising or providing in a facility licensed or operated by the office of
mental health which does not have an inpatient psychiatric service, to a
hospital approved by the commissioner pursuant to subdivision (a) of section
9.39 of this article or to a comprehensive psychiatric emergency program, if he
or she determines upon examination of such person that such person appears to
have a mental illness for which immediate observation, care and treatment in a
hospital is appropriate and which is likely to result in serious harm to
himself or herself or others. Upon the request of such qualified psychiatrist, peace
officers, when acting pursuant to their special duties, or police officers, who
are members of an authorized police department or force or of a sheriff`s
department shall take into custody and transport any such person. Upon the
request of a qualified psychiatrist an ambulance service, as defined by
subdivision two of section three thousand one of the public health law, is
authorized to transport any such person. Such person may then be admitted to a
hospital in accordance with the provisions of section 9.39 of this article or
to a comprehensive psychiatric emergency program in accordance with the
provisions of section 9.40 of this article.
* NB Effective until
* S 9.55 Emergency
admissions for immediate observation, care and treatment; powers of qualified
psychiatrists.
A qualified psychiatrist shall have the power to direct the
removal of any person, whose treatment for a mental illness he is either supervising
or providing in a facility licensed or operated by the office of mental health
which does not have an inpatient psychiatric service, to a hospital approved by
the commissioner pursuant to subdivision (a) of section 9.39 of this article,
if he determines upon examination of such person that such person appears to
have a mental illness for which immediate observation, care and treatment in a hospital
is appropriate and which is likely to result in serious harm to himself or
others, as defined in section 9.39 of this article. Upon the request of such
qualified psychiatrist, peace officers, when acting pursuant to their special
duties, or police officers, who are members of an authorized police department
or force or of a sheriff`s department shall take into custody and transport any
such person. Upon the request of a qualified psychiatrist an ambulance service,
as defined by subdivision two of section three thousand one of the public
health law, is authorized to transport any such person. Such person may then be
admitted in accordance with the provisions of section 9.39 of this article.
* NB Effective
* S 9.57 Emergency
admissions for immediate observation, care and treatment; powers of emergency
room physicians.
A physician who has examined a person in an emergency room
or provided emergency medical services at a general hospital, as defined in
article twenty-eight of the public health law, which does not have an inpatient
psychiatric service, or a physician who has examined a person in a comprehensive
psychiatric emergency program shall be authorized to request that the director
of the program or hospital, or the director`s designee, direct the removal of
such person to a hospital approved by the commissioner pursuant to subdivision
(a) of section 9.39 of this article or to a comprehensive psychiatric emergency
program, if the physician determines upon examination of such person that such
person appears to have a mental illness for which immediate care and treatment in
a hospital is appropriate and which is likely to result in serious harm to
himself or others. Upon the request of the physician, the director of the
program or hospital or the director`s designee, is authorized to direct peace
officers, when acting pursuant to their special duties, or police officers, who
are members of an authorized police department or force or of a sheriff`s
department to take into custody and transport any such person. Upon the request
of an emergency room physician or the director of the program or hospital, or
the director`s designee, an ambulance service, as defined by subdivision two of
section three thousand one of the public health law, is authorized to take into
custody and transport any such person. Such person may then be admitted to a
hospital in accordance with the provisions of section 9.39 of this article or
to a comprehensive psychiatric emergency program in accordance with the
provisions of section 9.40 of this article.
* NB Effective until
* S 9.57 Emergency
admissions for immediate observation, care and treatment; powers of emergency
room physicians.
A physician who has examined a person in an emergency room
or provided emergency medical services at a general hospital, as defined in
article twenty-eight of the public health law, which does not have an inpatient
psychiatric service, shall be authorized to request that the director of the
hospital, or his designee, direct the removal of such person to a hospital
approved by the commissioner pursuant to subdivision (a) of section 9.39 of
this article, if the physician determines upon examination of such person that
such person appears to have a mental illness for which immediate care and
treatment in a hospital is appropriate and which is likely to result in serious
harm to himself or others, as defined in section 9.39 of this article. Upon the
request of the physician, the director of the hospital or his designee, is authorized
to direct peace officers, when acting pursuant to their special duties, or
police officers, who are members of an authorized police department or force or
of a sheriff`s department to take into custody and transport any such person.
Upon the request of an emergency room physician or the director of the
hospital, or his designee, an ambulance service, as defined by subdivision two
of section three thousand one of the public health law, is authorized to take
into custody and transport any such person. Such person may then be admitted in
accordance with the provisions of section 9.39 of this article.
* NB Effective
S 9.58 Transport for
evaluation; powers of approved mobile crisis outreach teams.
(a) A physician or qualified mental health professional who
is a member of an approved mobile crisis outreach team shall have the power to
remove, or pursuant to subdivision (b) of this section, to direct the removal
of any person to a hospital approved by the commissioner pursuant to
subdivision (a) of section 9.39 or section 31.27 of this chapter for the
purpose of evaluation for admission if such person appears to be mentally ill
and is conducting himself or herself in a manner which is likely to result in
serious harm to the person or others.
(b) If the team physician or qualified mental health
professional determines that it is necessary to effectuate transport, he or she
shall direct peace officers, when acting pursuant to their special duties, or police
officers, who are members of an authorized police department or force or of a
sheriff`s department, to take into custody and transport any persons identified
in subdivision (a) of this section. Upon
the request of such physician or qualified mental health professional, an ambulance
service, as defined in subdivision two of section three thousand one of the
public health law, is authorized to transport any such persons. Such persons
may then be evaluated for admission in accordance with the provisions of
section 9.27, 9.39, 9.40 or other sections of this article, provided that such
admission decisions shall be made independent of the fact that the person was
transported pursuant to the provisions of this section and, provided further,
such transport shall not create a presumption that the person should be
involuntarily admitted to a hospital.
(c) The commissioner shall be authorized to develop
standards, in consultation with the commissioner of the division of criminal
justice services, relating to the training requirements of teams established pursuant
to this section. Such training shall, at a minimum, help to ensure that the
provision of crisis and emergency services are provided in a manner which
protects the health and safety and respects the individual needs and rights of
persons being evaluated or transported pursuant to this section.
(d) As used in this section:
(1) "Approved mobile crisis
outreach team" shall mean a team of persons operating as part of a mobile
crisis outreach program approved by the commissioner of mental health, which
may include mobile crisis outreach teams funded pursuant to section 41.55 of
this chapter.
(2) "Qualified mental health
professional" shall mean a licensed psychologist, certified social worker
or registered professional nurse.
* S 9.59 Immunity from
liability.
(a) Notwithstanding any inconsistent provision of any
general, special or local law, an ambulance service as defined by subdivision
two of section three thousand one of the public health law and any member thereof
who is an emergency medical technician or an advanced emergency medical
technician transporting a person to a hospital as authorized by this article,
any peace officers, when acting pursuant to their special duties, any police
officers, who are members of an authorized police department or force or of a
sheriff`s department, and any members of mobile crisis outreach teams approved
by the commissioner pursuant to section 9.58 of this article, who are taking
into custody and transporting a person to a hospital as authorized by this
article, or to a hospital or other facility as authorized by section 22.09 of
this chapter, and any employee of a licensed comprehensive psychiatric emergency
program, specially trained in accordance with standards developed by the
commissioner, who transports a person to a hospital, shall not be liable for
damages for injuries alleged to have been sustained by such person or for the
death of such person alleged to have occurred by reason of an act or omission
unless it is established that such injuries or such death was caused by gross
negligence on the part of such emergency medical technician, advanced emergency
medical technician, peace officer, police officer, mobile crisis outreach team member,
or specially trained employee of a licensed comprehensive psychiatric emergency
program.
(b) Nothing in this section shall be deemed to relieve or
alter the liability of any such ambulance service or members thereof, peace officers,
police officers or specially trained employees of a licensed comprehensive
psychiatric emergency program for damages or injuries or death arising out of
the operation of motor vehicles.
* NB Effective until
* S 9.59 Immunity from
liability.
(a) Notwithstanding any inconsistent provision of any
general, special or local law, an ambulance service as defined by subdivision
two of section three thousand one of the public health law and any member thereof
who is an emergency medical technician or an advanced emergency medical
technician transporting a person to a hospital as authorized by this article,
any peace officers, when acting pursuant to their special duties, and any
police officers, who are members of an authorized police department or force or
of a sheriff`s department, who are taking into custody and transporting a
person to a hospital as authorized by this article, shall not be liable for
damages for injuries alleged to have been sustained by such person or for the
death of such person alleged to have occurred by reason of an act or omission
unless it is established that such injuries or such death was caused by gross
negligence on the part of such emergency medical technician, advanced emergency
medical technician, peace officer or police officer.
(b) Nothing in this section shall be deemed to relieve or
alter the liability of any such ambulance service or members thereof, peace officers,
or police officers for damages or injuries or death arising out of the
operation of motor vehicles.
* NB Effective
* S 9.60 Assisted outpatient
treatment.
(a) Definitions. For purposes of this section, the following
definitions shall apply:
(1) "assisted outpatient
treatment" shall mean categories of outpatient services which have been
ordered by the court pursuant to this section.
Such treatment shall include case management services or assertive community
treatment team services to provide care coordination, and may also include any
of the following categories of services: medication; periodic blood tests or
urinalysis to determine compliance with prescribed medications; individual or
group therapy; day or partial day programming activities; educational and
vocational training or activities; alcohol or substance abuse treatment and counseling
and periodic tests for the presence of alcohol or illegal drugs for persons
with a history of alcohol or substance abuse; supervision of living
arrangements; and any other services within a local or unified services plan
developed pursuant to article forty-one of this chapter, prescribed to treat
the person`s mental illness and to assist the person in living and functioning
in the community, or to attempt to prevent a relapse or deterioration that may
reasonably be predicted to result in suicide or the need for hospitalization.
(2) "director" shall mean
the director of a hospital licensed or operated by the office of mental health
which operates, directs and supervises an assisted outpatient treatment
program, or the director of community services of a local governmental unit, as
such term is defined in section 41.03 of this chapter, which operates, directs
and supervises an assisted outpatient treatment program.
(3) "director of community
services" shall have the same meaning as provided in article forty-one of
this chapter.
(4) "assisted outpatient
treatment program" shall mean a system to arrange for and coordinate the
provision of assisted outpatient treatment, to monitor treatment compliance by
assisted outpatients, to evaluate the condition or needs of assisted
outpatients, to take appropriate steps to address the needs of such
individuals, and to ensure compliance with court orders.
(5) "assisted outpatient"
or "patient" shall mean the person under a court order to receive
assisted outpatient treatment.
(6) "subject of the
petition" or "subject" shall mean the person who is alleged in a
petition, filed pursuant to the provisions of this section, to meet the
criteria for assisted outpatient treatment.
(7) "correctional
facility" or "local correctional facility" shall have the same
meaning as defined in section two of the correction law.
(8) "health care proxy"
and "health care agent" shall have the same meaning as defined in
article 29-C of the public health law.
(9) "program coordinator"
shall mean an individual appointed by the commissioner of mental health,
pursuant to subdivision (f) of section 7.17 of this chapter, who is responsible
for the oversight and monitoring of assisted outpatient treatment programs.
(b) The director of a hospital licensed or operated by the
office of mental health may operate, direct and supervise an assisted
outpatient treatment program as provided in this section, upon approval by the commissioner
of mental health. The director of community services of a local governmental
unit shall operate, direct and supervise an assisted outpatient treatment
program as provided in this section, upon approval by the commissioner of
mental health. Directors of community services of local governmental units
shall be permitted to satisfy the provisions of this subdivision through the
operation of joint assisted outpatient treatment programs. Nothing in this
subdivision shall be interpreted to preclude the combination or coordination of
efforts between and among local governmental units and hospitals in providing
and coordinating assisted outpatient treatment.
(c) Criteria for assisted outpatient treatment. A patient
may be ordered to obtain assisted outpatient treatment if the court finds that:
(1) the patient is eighteen years of
age or older; and
(2) the patient is suffering from a
mental illness; and
(3) the patient is unlikely to survive
safely in the community without supervision, based on a clinical determination;
and
(4) the patient has a history of
lack of compliance with treatment for mental illness that has:
(i) at least twice within the last
thirty-six months been a significant factor in necessitating hospitalization in
a hospital, or receipt of services in a forensic or other mental health unit of
a correctional facility or a local correctional facility, not including any
period during which the person was hospitalized or incarcerated immediately
preceding the filing of the petition or;
(ii) resulted in one or more acts of
serious violent behavior toward self or others or threats of, or attempts at,
serious physical harm to self or others within the last forty-eight months, not
including any period in which the person was hospitalized or incarcerated
immediately preceding the filing of the petition; and
(5) the patient is, as a result of
his or her mental illness, unlikely to voluntarily participate in the
recommended treatment pursuant to the treatment plan; and
(6) in view of the patient`s
treatment history and current behavior, the patient is in need of assisted
outpatient treatment in order to prevent a relapse or deterioration which would
be likely to result in serious harm to the patient or others as defined in
section 9.01 of this article; and
(7) it is likely that the patient
will benefit from assisted outpatient treatment; and
(8) if the patient has executed a
health care proxy as defined in article 29-C of the public health law, that any
directions included in such proxy shall be taken into account by the court in
determining the written treatment plan.
(d) Nothing herein shall preclude a person with a health
care proxy from being subject to a petition pursuant to this chapter and
consistent with article 29-C of the public health law.
(e) Petition to the court.
(1) A petition for an order
authorizing assisted outpatient treatment may be filed in the supreme or county
court in the county in which the subject of the petition is present or reasonably
believed to be present. A petition to obtain an order authorizing assisted
outpatient treatment may be initiated only by the following persons:
(i) any person eighteen years of age
or older with whom the subject of the petition resides; or
(ii) the parent, spouse, sibling
eighteen years of age or older, or child eighteen years of age or older of the
subject of the petition; or
(iii) the director of a hospital in
which the subject of the petition is hospitalized; or
(iv) the director of any public or
charitable organization, agency or home providing mental health services to the
subject of the petition in whose institution the subject of the petition
resides; or
(v) a qualified psychiatrist who is
either supervising the treatment of or treating the subject of the petition for
a mental illness; or
(vi) the director of community services, or his or her designee, or the
social services official, as defined in the social services law, of the city or
county in which the subject of the petition is present or reasonably believed
to be present; or
(vii) a parole officer or probation
officer assigned to supervise the subject of the petition.
(2) The petition shall state:
(i) each of the criteria for
assisted outpatient treatment as set forth in subdivision (c) of this section;
(ii) facts which support such
petitioner`s belief that the person who is the subject of the petition meets
each criterion, provided that the hearing on the petition need not be limited
to the stated facts; and
(iii) that the subject of the
petition is present, or is reasonably believed to be present, within the county
where such petition is filed.
(3) The petition shall be
accompanied by an affirmation or affidavit of a physician, who shall not be the
petitioner, and shall state either that:
(i) such physician has personally
examined the person who is the subject of the petition no more than ten days
prior to the submission of the petition, he or she recommends assisted
outpatient treatment for the subject of the petition, and he or she is willing
and able to testify at the hearing on the petition; or
(ii) no more than ten days prior to
the filing of the petition, such physician or his or her designee has made
appropriate attempts to elicit the cooperation of the subject of the petition
but has not been successful in persuading the subject to submit to an
examination, that such physician has reason to suspect that the subject of the
petition meets the criteria for assisted outpatient treatment, and that such physician
is willing and able to examine the subject of the petition and testify at the
hearing on the petition.
(f) Service. The petitioner shall cause written notice of
the petition to be given to the subject of the petition and a copy thereof
shall be given personally or by mail to the persons listed in section 9.29 of this
article, the mental hygiene legal service, the current health care agent
appointed by the subject of the petition, if any such agent is known to the
petitioner, the appropriate program coordinator, the appropriate director of
community services, if such director is not the petitioner.
(g) Right to counsel. The subject of the petition shall have
the right to be represented by the mental hygiene legal service, or other
counsel at the expense of the subject of the petition, at all stages of a proceeding
commenced under this section.
(h) Hearing.
(1) Upon receipt by the court of the
petition submitted pursuant to subdivision (e) of this section, the court shall
fix the date for a hearing at a time not later than three days from the date such
petition is received by the court, excluding Saturdays, Sundays and holidays.
Adjournments shall be permitted only for good cause shown. In granting
adjournments, the court shall consider the need for further examination by a
physician or the potential need to provide assisted outpatient treatment
expeditiously. The court shall cause the subject of the petition, any other
person receiving notice pursuant to subdivision (f) of this section, the
petitioner, the physician whose affirmation or affidavit accompanied the
petition, the appropriate director, and such other persons as the court may
determine to be advised of such date.
Upon such date, or upon such other
date to which the proceeding may be adjourned, the court shall hear testimony
and, if it be deemed advisable and the subject of the petition is available,
examine the subject alleged to be in need of assisted outpatient treatment in
or out of court. If the subject of the petition does not appear at the hearing,
and appropriate attempts to elicit the attendance of the subject have failed,
the court may conduct the hearing in such subject`s absence. If the hearing is
conducted without the subject of the petition present, the court shall set
forth the factual basis for conducting the hearing without the presence of the
subject of the petition.
(2) The court shall not order
assisted outpatient treatment unless an examining physician, who has personally
examined the subject of the petition within the time period commencing ten days
before the filing of the petition, testifies in person at the hearing.
(3) If the subject of the petition
has refused to be examined by a physician, the court may request the subject to
consent to an examination by a physician appointed by the court. If the subject
of the petition does not consent and the court finds reasonable cause to believe
that the allegations in the petition are true, the court may order peace
officers, acting pursuant to their special duties, or police officers who are
members of an authorized police department or force, or of a sheriff`s
department to take the subject of the petition into custody and transport him
or her to a hospital for examination by a physician. Retention of the subject
of the petition under such order shall not exceed twenty-four hours. The
examination of the subject of the petition may be performed by the physician
whose affirmation or affidavit accompanied the petition pursuant to paragraph
three of subdivision (e) of this section, if such physician is privileged by
such hospital or otherwise authorized by such hospital to do so. If such examination
is performed by another physician of such hospital, the examining physician
shall be authorized to consult with the physician whose affirmation or
affidavit accompanied the petition regarding the issues of whether the
allegations in the petition are true and whether the subject meets the criteria
for assisted outpatient treatment.
(4) A physician who testifies
pursuant to paragraph two of this subdivision shall state the facts which
support the allegation that the subject meets each of the criteria for assisted
outpatient treatment, and the treatment is the least restrictive alternative,
the recommended assisted outpatient treatment, and the rationale for the
recommended assisted outpatient treatment. If the recommended assisted
outpatient treatment includes medication, such physician`s testimony shall
describe the types or classes of medication which should be authorized, shall describe
the beneficial and detrimental physical and mental effects of such medication,
and shall recommend whether such medication should be self-administered or
administered by authorized personnel.
(5) The subject of the petition
shall be afforded an opportunity to present evidence, to call witnesses on
behalf of the subject, and to cross-examine adverse witnesses.
(i) (1) Written treatment plan. The court shall not order
assisted outpatient treatment unless an examining physician appointed by the appropriate
director develops and provides to the court a proposed written treatment plan.
The written treatment plan shall include case management services or assertive
community treatment teams to provide care coordination. The written treatment
plan also shall include all categories of services, as set forth in paragraph
one of subdivision (a) of this section, which such physician recommends that
the subject of the petition should receive. If the written treatment plan
includes medication, it shall state whether such medication should be self-administered
or administered by authorized personnel, and shall specify type and dosage
range of medication most likely to provide maximum benefit for the subject. If
the written treatment plan includes alcohol or substance abuse counseling and
treatment, such plan may include a provision requiring relevant testing for
either alcohol or illegal substances provided the physician`s clinical basis
for recommending such plan provides sufficient facts for the court to find (i)
that such person has a history of alcohol or substance abuse that is clinically
related to the mental illness; and (ii) that such testing is necessary to
prevent a relapse or deterioration which would be likely to result in serious
harm to the person or others. In developing such a plan, the physician shall
provide the following persons with an
opportunity to actively participate in the development of
such plan: the subject of the petition; the treating physician; and upon the
request of the patient, an individual significant to the patient including any relative,
close friend or individual otherwise concerned with the welfare of the subject.
If the petitioner is a director, such plan shall be provided to the court no
later than the date of the hearing on the petition.
(2) The court shall not order
assisted outpatient treatment unless a physician testifies to explain the
written proposed treatment plan. Such testimony shall state the categories of
assisted outpatient treatment recommended, the rationale for each such
category, facts which establish that such treatment is the least restrictive
alternative, and, if the recommended assisted outpatient treatment includes
medication, the types or classes of medication recommended, the beneficial and
detrimental physical and mental effects of such medication, and whether such medication
should be self-administered or administered by an authorized professional. If
the petitioner is a director such testimony shall be given at the hearing on
the petition.
(j) Disposition.
(1) If after hearing all relevant
evidence, the court finds that the subject of the petition does not meet the
criteria for assisted outpatient treatment, the court shall dismiss the
petition.
(2) If after hearing all relevant
evidence, the court finds by clear and convincing evidence that the subject of
the petition meets the criteria for assisted outpatient treatment, and there is
no appropriate and feasible less restrictive alternative, the court shall be
authorized to order the subject to receive assisted outpatient treatment for an
initial period not to exceed six months. In fashioning the order, the court
shall specifically make findings by clear and convincing evidence that the
proposed treatment is the least restrictive treatment appropriate and feasible
for the subject. The order shall state the categories of assisted outpatient
treatment, as set forth in subdivision (a) of this section, which the subject
is to receive, and the court may not order treatment that has not been
recommended by the examining physician and included in the written treatment
plan for assisted outpatient treatment as required by subdivision (i) of this
section.
(3) If after hearing all relevant
evidence the court finds by clear and convincing evidence that the subject of
the petition meets the criteria for assisted outpatient treatment, and the
court has yet to be provided with a written proposed treatment plan and
testimony pursuant to subdivision (i) of this section, the court shall order
the director of community services to provide the court with such plan and
testimony no later than the third day, excluding Saturdays, Sundays and
holidays, immediately following the date of such order. Upon receiving such
plan and testimony, the court may order assisted outpatient treatment as provided
in paragraph two of this subdivision.
(4) A court may order the patient to
self-administer psychotropic drugs or accept the administration of such drugs
by authorized personnel as part of an assisted outpatient treatment program. Such
order may specify the type and dosage range of such psychotropic drugs and such
order shall be effective for the duration of such assisted outpatient treatment.
(5) If the petitioner is the
director of a hospital that operates an assisted outpatient treatment program,
the court order shall direct the hospital director to provide or arrange for
all categories of assisted outpatient treatment for the assisted outpatient
throughout the period of the order. For all other persons, the order shall
require the director of community services of the appropriate local
governmental unit to provide or arrange for all categories of assisted
outpatient treatment for the assisted outpatient throughout the period of the order.
(6) The director or his or her
designee shall apply to the court for approval before instituting a proposed
material change in the assisted outpatient treatment order unless such change
is contemplated in the order. Non-material changes may be instituted by the
assisted outpatient treatment program without court approval. For the purposes
of this subdivision, a material change shall mean an addition or deletion of a category
of assisted outpatient treatment from the order of the court, or any deviation
without the patient`s consent from the terms of an existing order relating to
the administration of psychotropic drugs. Any such application for approval
shall be served upon those persons required to be served with notice of a
petition for an order authorizing assisted outpatient treatment.
(k) Applications for additional periods of treatment. If the
director determines that the condition of such patient requires further
assisted outpatient treatment, the director shall apply prior to the expiration
of the period of assisted outpatient treatment ordered by the court for a
second or subsequent order authorizing continued assisted outpatient treatment
for a period not to exceed one year from the date of the order. The procedures
for obtaining any order pursuant to this subdivision shall be in accordance
with the provisions of the foregoing subdivisions of this section, provided
that the time period included in subparagraphs (i) and (ii) of paragraph four
of subdivision (c) of this section shall not be applicable in determining the
appropriateness of additional periods of assisted outpatient treatment. Any
court order requiring periodic blood tests or urinalysis for the presence of
alcohol or illegal drugs shall be subject to review after six months by the physician
who developed the written treatment plan or another physician designated by the
director, and such physician shall be authorized to terminate such blood tests
or urinalysis without further action by the court.
(l) Application for an order to stay, vacate or modify. In
addition to any other right or remedy available by law with respect to the
order for assisted outpatient treatment, the patient, mental hygiene legal service,
or anyone acting on the patient`s behalf may apply on notice to the appropriate
director and the original petitioner, to the court to stay, vacate or modify
the order.
(m) Appeals. Review of an order issued pursuant to this
section shall be had in like manner as specified in section 9.35 of this
article.
(n) Failure to comply with assisted outpatient treatment.
Where in the clinical judgment of a physician, the patient has failed or has
refused to comply with the treatment ordered by the court, and in the physician`s
clinical judgment, efforts were made to solicit compliance, and, in the
clinical judgment of such physician, such patient may be in need of involuntary
admission to a hospital pursuant to section 9.27 of this article, or for whom
immediate observation, care and treatment may be necessary pursuant to section
9.39 or 9.40 of this article, such physician may request the director, the
director`s designee, or persons designated pursuant to section 9.37 of this
article, to direct the removal of such patient to an appropriate hospital for
an examination to determine if such person has a mental illness for which
hospitalization is necessary pursuant to section 9.27, 9.39 or 9.40 of this
article.
Furthermore, if such assisted outpatient refuses to take
medications as required by the court order, or he or she refuses to take, or
fails a blood test, urinalysis, or alcohol or drug test as required by the
court order, such physician may consider such refusal or failure when determining
whether the assisted outpatient is in need of an examination to determine
whether he or she has a mental illness for which hospitalization is necessary.
Upon the request of such physician, the director, the director`s designee, or
persons designated pursuant to section 9.37 of this article, may direct peace
officers, when acting pursuant to their special duties, or police officers who
are members of an authorized police department or force or of a sheriff`s
department to take into custody and transport any such person to the hospital operating
the assisted outpatient treatment program or to any hospital authorized by the
director of community services to receive such persons. Such law enforcement
officials shall carry out such directive.
Upon the request of such physician, the director, the
director`s designee, or person designated pursuant to section 9.37 of this
article, an ambulance service, as defined by subdivision two of section three thousand
one of the public health law, or an approved mobile crisis outreach team as
defined in section 9.58 of this article shall be authorized to take into
custody and transport any such person to the hospital operating the assisted
outpatient treatment program, or to any other hospital authorized by the
director of community services to receive such persons. Such person may be
retained for observation, care and treatment and further examination in the
hospital for up to seventy-two hours to permit a physician to determine whether
such person has a mental illness and is in need of involuntary care and
treatment in a hospital pursuant to the provisions of this article. Any
continued involuntary retention in such hospital beyond the initial seventy-two
hour period shall be in accordance with the provisions of this article relating
to the involuntary admission and retention of a person. If at any time during
the seventy-two hour period the person is determined not to meet the
involuntary admission and retention provisions of this article, and does not
agree to stay in the hospital as a voluntary or informal patient, he or she
must be released. Failure to comply with an order of assisted outpatient
treatment shall not be grounds for involuntary civil commitment or a finding of
contempt of court.
(o) Effect of determination that a person is in need of
assisted outpatient treatment. The determination by a court that a patient is
in need of assisted outpatient treatment under this section shall not be construed
as or deemed to be a determination that such patient is incapacitated pursuant
to article eighty-one of this chapter.
(p) False petition. A person making a false statement or
providing false information or false testimony in a petition or hearing under
this section is subject to criminal prosecution pursuant to article one hundred
seventy-five or article two hundred ten of the penal law.
(q) Exception. Nothing in this section shall be construed to
affect the ability of the director of a hospital to receive, admit, or retain patients
who otherwise meet the provisions of this article regarding
receipt, retention or admission.
(r) Educational materials. The office of mental health, in consultation
with the office of court administration, shall prepare educational and training
materials on the use of this section, which shall be made available to local
governmental units as defined in article forty-one of this chapter, providers
of services, judges, court personnel, law enforcement officials and the general
public.
* NB Repealed
* S 9.63
Transportation of persons to or between hospitals.
In carrying out the transportation of any person to or
between a hospital, including a comprehensive psychiatric emergency program, pursuant
to the provisions of this article appropriate attempts shall be made to elicit
the cooperation of the person to be transported, prior to resorting to
compulsory means of transportation.
* NB Reverts to S 9.61
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