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RHODE ISLAND GENERAL LAWS
Last updated December 2003
TITLE 40.1 – Mental health, retardation, and hospitals
CHAPTER 40.1-5 – Mental
Health Law
§ 40.1-5-1 Short title. – This chapter shall be known as the
"Mental Health Law".
§ 40.1-5-2 Definitions. – Whenever used in this chapter, or in
any order, rule, or regulation made or promulgated pursuant to this chapter, or
in any printed forms prepared by the department or the director, unless
otherwise expressly stated, or unless the context or subject matter otherwise
requires:
(1)
"Alternatives to admission or certification" means alternatives to a
particular facility or treatment program, and shall include, but not be limited
to, voluntary or court-ordered outpatient treatment, day treatment in a
hospital, night treatment in a hospital, placement in the custody of a friend
or relative, placement in a nursing home, referral to a community mental health
clinic and home health aide services, or any other services that may be deemed
appropriate.
(2)
"Care and treatment" means psychiatric care, together with such medical,
nursing, psychological, social, rehabilitative, and maintenance services as may
be required by a patient in association with the psychiatric care provided
pursuant to an individualized treatment plan recorded in the patient's medical
record.
(3)
"Department" means the state department of mental health,
retardation, and hospitals.
(4)
"Director" means the director of the state department of mental
health, retardation, and hospitals.
(5)
"Facility" means a state hospital or psychiatric inpatient facility
in the department, a psychiatric inpatient facility maintained by a political
subdivision of the state for the care and/or treatment of the mentally
disabled, a general or specialized hospital maintaining staff and facilities
for such purpose, any of the several community mental health services
established pursuant to chapter 8.5 of this title, and any other facility
within the state providing inpatient psychiatric care and/or treatment and
approved by the director upon application of this facility. Included within
this definition shall be all hospitals, institutions, facilities, and services
under the control and direction of the director and the department, as provided
in this chapter. Nothing contained herein shall be construed to amend or repeal
any of the provisions of chapter 16 of title 23.
(6)
"Indigent person" means a person who has not sufficient property or
income to support himself or herself, and to support the members of his or her
family dependent upon him or her for support, and/or is unable to pay the fees
and costs incurred pursuant to any legal proceedings conducted under the
provisions of this chapter.
(7)
(i) "Likelihood of
serious harm" means:
(A) A substantial risk of physical harm to the person
himself or herself as manifested by behavior evidencing serious threats of, or
attempts at, suicide,
(B) A substantial risk of physical harm to other persons as
manifested by behavior or threats evidencing homicidal or other violent
behavior, or
(C) A substantial risk of physical harm to the mentally
disabled person as manifested by behavior which has created a grave, clear, and
present risk to his or her physical health and safety.
(ii) In determining whether there exists a likelihood of
serious harm the physician and the court may consider previous acts, diagnosis,
words or thoughts of the patient. If a patient has been incarcerated, or
institutionalized, or in a controlled environment of any kind, the court may
give great weight to such prior acts, diagnosis,
words, or thoughts.
(8)
"Mental disability" means a mental disorder in which the capacity of
a person to exercise self control or judgment in the conduct of his or her
affairs and social relations, or to care for his or her own personal needs, is
significantly impaired.
(9)
"Mental health professional" means a psychiatrist, psychologist, or
social worker and such other persons, including psychiatric nurse clinicians,
as may be defined by rules and regulations promulgated by the director.
(10)
"Patient" means a person certified or admitted to a facility
according to the provisions of this chapter.
(11)
"Physician" means a person duly licensed to practice medicine or
osteopathy in this state.
(12)
"Psychiatric nurse clinician" means a licensed professional
registered nurse with a master's degree in psychiatric nursing or related field
who is currently working in the mental health field as defined by the American
nurses association.
(13)
"Psychiatrist" means a person duly licensed to practice medicine or
osteopathy in this state who has in addition completed
three (3) years of graduate psychiatric training in a program approved by the
American medical association or American osteopathic association.
(14)
"Psychologist" means a person certified pursuant to chapter 44 of
title 5.
(15)
"Social worker" means a person with a masters or further advanced
degree from a school of social work which is accredited by the council of
social work education.
§ 40.1-5-5 Admission of patients
generally – Rights of patients – Patients' records – Competence
of patients.
(a) Admissions. Any person who is in need of care and treatment in a facility, as
herein defined, may be admitted or certified, received, and retained as a
patient in a facility by complying with any one of the following admission procedures
applicable to the case:
(1) Voluntary admission.
(2) Emergency certification.
(3) Civil court certification.
(b) Forms.
The director shall prescribe and furnish forms for use in admissions and
patient notification procedures under this chapter.
(c) Exclusions. No defective delinquent, mentally retarded person,
or person under the influence of alcohol or drugs shall be certified to a
facility, as herein defined, solely by reason of that condition, unless the
person also qualified for admission or certification under the provisions of
this chapter.
(d) Examining physician. For purposes of certification, no examining physician shall
be related by blood or marriage to the person who is applying for the admission
of another, or to the person who is the subject of the application; nor shall
he or she have any interest, contractually, testamentarily,
or otherwise (other than reasonable and proper charges for professional
services rendered), in or against the estate or assets of the person who is the
subject of the application; nor shall he or she be a manager, trustee, visitor,
proprietor, officer, stockholder, or have any pecuniary interest, directly or
indirectly, or, except as otherwise herein expressly provided, be a director,
resident physician, or salaried physician, or employee in any facility to which
it is proposed to admit the person.
(e) Certificates. Certificates, as required by this chapter, must provide a factual
description of the person's behavior which indicates that the person concerned
is mentally disabled, creates a likelihood of serious harm, and is in need of
care and treatment in a facility as defined in this chapter. They shall further
set forth such other findings as may be required by the particular
certification procedure used. Certificates shall also show that an examination
of the person concerned was made within five (5) days prior to the date of
admission or certification, unless otherwise herein provided. The date of the
certificate shall be the date of the commencement of the examination, and in
the event examinations are conducted separately or over a period of days, then
the five (5) day period above referred to (unless otherwise expressly provided)
shall be measured from the date of the commencement of the first examination.
All certificates shall contain the observations upon which judgments are based,
and shall contain such other information as the director may by rule or
regulation require.
(f) Rights of patients. No patient admitted or certified to any facility under any
provision of this chapter shall be deprived of any constitutional, civil or
legal right, solely by reason of such admission or certification nor shall the
certification or admission modify or vary any constitutional or civil right,
including but not limited to the right or rights:
(1) To privacy and dignity;
(2) To civil service or merit rating or ranking and
appointment;
(3) Relating to the granting, forfeiture or denial of a
license, permit, privilege or benefit pursuant to any law;
(4) To religious freedom;
(5) To be visited privately at all reasonable times by his
or her personal physician, attorney, and clergyperson, and by other persons at
all reasonable times unless the official in charge of the facility determines
either that a visit by any of the other persons or a particular visitation time
would not be in the best interests of the patient and he or she incorporates a
statement for any denial of visiting rights in the individualized treatment
record of the patient;
(6) To be provided with stationery, writing materials, and
postage in reasonable amounts and to have free unrestricted, unopened, and
uncensored use of the mails for letters;
(7) To wear one's own clothes, keep and use personal
possessions, including toilet articles, to keep and be allowed to spend a
reasonable sum of money for canteen expenses and small purchases, to have
access to individual storage space for his or her private use, and reasonable
access to telephones to make and receive confidential calls; provided, however,
that any of these rights may be denied for good cause by the official in charge
of a facility or a physician designated by him or her. A statement of the
reasons for any denial shall be entered in the individualized treatment record
of the patient;
(8) To seek independent psychiatric examination and opinion
from a psychiatrist or mental health professional of his or her choice;
(9) To be employed at a gainful occupation insofar as the
patient's condition permits, provided however, that no patient shall be
required to perform labor;
(10) To vote and participate in political activity;
(11) To receive and read literature;
(12) To have the least possible restraint imposed upon the
person consistent with affording him or her the care
and treatment necessary and appropriate to his or her condition;
(13) To have access to the mental health advocate upon
request;
(14) To prevent release of his or her name to the advocate
or next of kin by signing a form provided to all patients for that purpose at
the time of admission.
(g) Records.
A facility shall maintain for each patient admitted pursuant to this chapter, a
comprehensive medical record. The record shall contain a recorded
individualized treatment plan, which shall at least monthly be reviewed by the
physician of the facility who is chiefly responsible for the patient's care,
notations of the reviews to be entered in the record. The records shall also
contain information indicating at the time of admission or certification what
alternatives to admission or certification are available to the patient, what
alternatives have been investigated, and why the investigated alternatives were
not deemed suitable. The medical record shall further contain such other
information as the director may by rule or regulation require.
(h) Competence. A person shall not, solely by reason of his or her admission or
certification to a facility for examination or care and treatment under the
provisions of this chapter thereby be deemed incompetent to manage his or her
affairs, to contract, to hold, or seek a professional, occupational, or vehicle
operator's license, to make a will, or for any other purpose. Neither shall any
requirement be made, by rule, regulation, or otherwise, as a condition to
admission and retention, that any person applying for admission shall have the
legal capacity to contract, it being sufficient for the purpose, that the
person understand the nature and consequence of making the application.
§ 40.1-5-6 Voluntary admission. – (a) General. Any individual of lawful age may
apply for voluntary admission to any facility provided for by this law seeking
care and treatment for alleged mental disability. The application shall be in
writing, signed by the applicant in the presence of at least one witness, who shall
attest to the application by placing his or her name and address thereon. If
the applicant has not yet attained his or her eighteenth birthday, the
application shall be signed by him or her and his or her parent, guardian, or
next of kin.
(b) Period of treatment. If it is determined that the applicant is in need of care
and treatment for mental disability and no suitable alternatives to admission
are available, he or she shall be admitted for a period not to exceed thirty
(30) days. Successive applications for continued voluntary status may be made
for successive periods not to exceed ninety (90) days each, so long as care and
treatment is deemed necessary and documented in accordance with the
requirements of this chapter, and no suitable alternatives to admission are
available.
(c) Discharge.
(1) A voluntary patient shall be discharged no later than the end of the
business day following of his or her presenting a written notice his or her
intent to leave the facility to the medical official in charge or the medical
official designated by him or her, unless that official or another qualified
person from the facility files an application for the patient's civil court
certification pursuant to § 40.1-5-8. The notice shall be on a form prescribed
by the director and made available to all patients at all times. If a decision
to file an application for civil court certification is made, the patient
concerned and his or her legal guardian(s), if any, shall receive immediately,
but in no event later than twelve (12) hours from the making of the decision,
notice of the intention from the official in charge of the facility, or his or
her designee, and the patient may, in the discretion of the official, be
detained for an additional period not to exceed two (2) business days, pending
the filing and setting down for hearing of the application under § 40.1-5-8.
(2) A voluntary patient who gives notice of his or her
intention or desire to leave the facility may at any time during the period of
his or her hospitalization prior to any certification pursuant to § 40.1-5-8,
following the giving of the notice, submit a written communication withdrawing
the notice, whereby his or her voluntary status shall be considered to continue
unchanged until the expiration of thirty (30) or ninety (90) days as provided
in subsection (b). In the case of an individual under eighteen (18) years of
age, the notice or withdrawal of notice may be given by either of the persons
who made the application for his or her admission, or by a person of equal or
closer relationship to the patient, who shall, as well, receive notice from the
official in charge indicating a decision to present an application for civil
court certification. The official may in his or her discretion refuse to
discharge the patient upon notice given by any person other than the person who
made the application, and in the event of such a refusal the person giving
notice may apply to a justice of the family court for release of the patient.
(d) Examination at facility. The medical official in charge of a facility shall ensure
that all voluntary patients receive preliminary physical and psychiatric
examinations within twenty-four (24) hours of admission. Furthermore, a
complete psychiatric examination shall be conducted to determine whether the
person qualifies for care and treatment under the provisions of this chapter.
The examination shall begin within forty-eight (48) hours of admission and
shall be concluded as soon as practicable, but in no case shall extend beyond
five (5) days. The examination shall include an investigation with the
prospective patient of (1) what alternatives for admission are available and
(2) why those alternatives are not suitable. The alternatives for admission
investigated and reasons for unsuitability, if any, shall be recorded on the
patient's record. If it is determined that the patient does not belong to the
voluntary class in that a suitable alternative to admission is available, or is
otherwise ineligible for care and treatment, he or she shall be discharged.
(e) Rights of voluntary patients. A voluntary patient shall be informed in writing of his or
her status and rights as a voluntary patient immediately upon his or her
admission, and again at the time of his or her periodic review(s) as provided
in § 40.1-5-10, including his or her rights pursuant to § 40.1-5-5(f). Blank
forms for purposes of indicating an intention or desire to leave a facility
shall be available at all times and on and in all wards and segments of a
facility wherein voluntary patients may reside.
§ 40.1-5-7 Emergency certification. – (a) Applicants. (1) Any physician, who after
examining a person, has reason to believe that the person is in need of
immediate care and treatment, and is one whose continued unsupervised presence
in the community would create an imminent likelihood of serious harm by reason
of mental disability, may apply at a facility for the emergency certification
of the person thereto. The medical director, or any other physician employed by
the proposed facility for certification may apply under this subsection if no
other physician is available and he or she certifies this fact. If an
examination is not possible because of the emergency nature of the case and
because of the refusal of the person to consent to the examination, the
applicant on the basis of his or her observation may determine, in accordance
with the above, that emergency certification is necessary and may apply therefor. In the event that no physician is available, a
qualified mental health professional or police officer who believes the person
to be in need of immediate care and treatment, and one whose continued
unsupervised presence in the community would create an imminent likelihood of
serious harm by reason of mental disability, may make the application for
emergency certification to a facility. Application shall in all cases be made
to the facility which in the judgment of the applicant at the time of
application would impose the least restraint on the liberty of the person
consistent with affording him or her the care and
treatment necessary and appropriate to his or her condition.
(2) Whenever an applicant, not employed by a community
mental health center established pursuant to chapter 8.5 of this title, has
reason to believe that the institute of mental health is the appropriate
facility for the person, the application shall be directed to the community
mental health center that serves the area in which the person resides, if the
person is a Rhode Island resident, or the area in which the person is
physically present, if a nonresident, and the qualified mental health
professional(s) at the center shall make the final decision on the application
to the institute of mental health or may determine whether some other
disposition should be made.
(b) Applications. An application for certification hereunder shall be in writing and
filed with the facility to which admission is sought. The application shall be
executed within five (5) days prior to the date of filing and shall state that
it is based upon a personal observation of the prospective patient by the
applicant within the five (5) day period. It shall include a description of the
applicant's credentials and the behavior which constitutes the basis for his or
her judgment that the prospective patient is in need of immediate care and
treatment and that a likelihood of serious harm by reason of mental disability
exists, and shall include, as well, any other relevant information which may
assist the admitting physician at the facility to which application is made.
Whenever practicable, prior to transporting or arranging for the transporting
of a prospective patient to a facility, the applicant shall telephone or
otherwise communicate with the facility to describe the circumstances and known
clinical history to determine whether it is the proper facility to receive the
person, and to give notice of any restraint to be used or to determine whether
restraint is necessary.
(c) Confirmation; discharge; transfer. Within one hour after reception at a facility, the
person regarding whom an application has been filed under this section shall be
seen by a physician. As soon as possible, but in no event later than
twenty-four (24) hours after reception, a preliminary examination and
evaluation of the person by a psychiatrist or a physician under his or her
supervision shall begin. The psychiatrist shall not be an applicant hereunder.
The preliminary examination and evaluation shall be completed within
seventy-two (72) hours from its inception by the psychiatrist. If the
psychiatrist determines that the patient is not a candidate for emergency certificaion, he or she shall be discharged. If the
psychiatrist(s) determines that the person who is the subject of the
application is in need of immediate care and treatment and is one whose
continued unsupervised presence in the community would create an imminent
likelihood of serious harm by reason of mental disability, he or she shall
confirm the admission for care and treatment under this section of the person to
the facility, provided the facility is one which would impose the least
restraint on the liberty of the person consistent with affording him or her the
care and treatment necessary and appropriate to his or her condition and that
no suitable alternatives to certification are available. If at any time the
official in charge of a facility or his or her designee determines that the
person is not in need of immediate care and treatment, or is not one whose
continued unsupervised presence in the community would create an imminent
likelihood of serious harm by reason of mental disability, or suitable
alternatives to certification are available, he or she shall immediately
discharge the person. In addition, the official may arrange to transfer the
person to an appropriate facility, if the facility to which he or she has been
certified is not one which imposes the least restraint on the liberty of the
person consistent with affording him or her the care
and treatment necessary and appropriate to his or her condition.
(d) Custody.
Upon the request of an applicant under this section, to be confirmed in
writing, it shall be the duty of any peace officer of this state or of any
governmental subdivision thereof to whom request has been made, to take into
custody and transport the person to the facility designated, the person to be
expeditiously presented for admission thereto.
(e) Ex parte court order. An applicant under this section may present a petition to
any judge of the district court or any justice of the family court in the case
of a person who is the subject of an application, who has not yet attained his
or her eighteenth birthday, for a warrant directed to any peace officer of the
state or any governmental subdivision thereof to take into custody the person
who is the subject of the application and immediately transport the person to a
designated facility. The application shall set forth that the person who is to
be certified is in need of immediate care and treatment and his or her
continued unsupervised presence in the community would create an imminent
likelihood of serious harm by reason of mental disability, and the reasons why
an order directing a peace officer to transport the person to a designated
facility if necessary.
(f) Notification of rights. No person shall be certified to a facility under the
provisions of this section unless appropriate opportunity is given to apply for
voluntary admission under the provisions of § 40.1-5-6 and unless he or she, or
a parent, guardian or next of kin, has been informed in writing, on a form
provided by the department, by the official in charge of the facility (1) that
he or she has a right to the voluntary admission; and (2) that a person cannot
be certified until all available alternatives to certification have been
investigated and determined to be unsuitable; and (3) that the period of
hospitalization or treatment in a facility cannot exceed ten (10) days under
this section, except as provided in subsection (g) of this section.
(g) Period of treatment. A person shall be discharged no later than ten (10) days
measured from the date of his or her admission under this section, unless an
application for a civil court certification has been filed and set down for
hearing under the provisions of § 40.1-5-8, or the person remains as a
voluntary patient pursuant to § 40.1-5-6.
§ 40.1-5-8 Civil court
certification. – (a)
Petitions. A verified petition may be filed in the district court, or
family court in the case of a person who has not reached his or her eighteenth
(18th) birthday for the certification to a facility of any person who is
alleged to be in need of care and treatment in a facility, and whose continued
unsupervised presence in the community would create a likelihood of serious
harm by reason of mental disability. The petition may be filed by any person
with whom the subject of the petition may reside, or at whose house he or she
may be, or the father or mother, husband or wife, brother or sister, or the
adult child of any such person, the nearest relative if none of the above are
available, or his or her guardian, or the attorney general, or a local director
of public welfare, or the director of the department of mental health,
retardation, and hospitals, the director of the department of human services,
or the director of the department of corrections, the director of the
department of health, the warden of the adult correctional institutions, the
superintendent of the boys training school for youth, or his or her designated
agent, or the director of any facility or his or her designated agent whether
or not the person shall have been admitted and is a patient at the time of the
petition. A petition under this section shall be filed only after the
petitioner has investigated what alternatives to certification are available
and determined why the alternatives are not deemed suitable.
(b) Contents of petition. The petition shall state that it is based upon a personal
observation of the person concerned by the petitioner within a ten (10) day
period prior to filing. It shall include a description of the behavior which
constitutes the basis for the petitioner's judgment that the person concerned
is in need of care and treatment and that a likelihood of serious harm by
reason of mental disability exists. In addition, the petitioner shall indicate
what alternatives to certification are available, what alternatives have been
investigated, and why the investigated alternatives are not deemed suitable.
(c) Certificates and contents thereof. A petition hereunder shall be accompanied by the
certificates of two (2) physicians unless the petitioner is unable to afford or
is otherwise unable to obtain the services of a physician or physicians
qualified to make the certifications. The certificates shall be rendered
pursuant to the provisions of § 40.1-5-5 except when the patient is a resident
in a facility the attending physician and one other physician from the facility
may sign the certificates, and shall set forth that the prospective patient is
in need of care and treatment in a facility and would likely benefit therefrom, and is one whose continued unsupervised presence
in the community would create a likelihood of serious harm by reason of mental
disability together with the reasons therefor. The
petitions and accompanying certificates shall be executed under penalty of
perjury, but shall not require the signature of a notary public thereon.
(d) Preliminary hearing. (1) Upon a determination that the petition sets forth facts
constituting reasonable grounds to support certification, the court shall
summon the person to appear before the court at a preliminary hearing,
scheduled no later than five (5) business days from the date of filing. This
hearing shall be treated as a priority on the court calendar and may be
continued only for good cause shown. In default of an appearance, the court may
issue a warrant directing a police officer to bring the person before the
court.
(2) At the preliminary hearing, the court shall serve a copy
of the petition upon the person and advise him or her of the nature of the
proceedings and of his or her right to counsel. If the person is unable to
afford counsel, the court forthwith shall appoint the mental health advocate
for him or her. If the court finds that there is no probable cause to support
certification, the petition shall be dismissed, and the person shall be
discharged unless the person applies for voluntary admission. However, if the
court is satisfied by the testimony that there is probable cause to support
certification, a final hearing shall be held not less than seven (7) days nor
more than twenty-one (21) days after the preliminary hearing unless continued
at the request of counsel for the person, and notice of the date set down for
hearing shall be served on the person. Copies of the petition and notice of the
date set down for hearing shall also be served immediately upon the person's
nearest relatives or legal guardian, if known, and to any other person
designated by the patient in writing to receive copies of notices. The preliminary
hearing can be waived by a motion of the patient to the court if the patient is
a resident of a facility.
(e) Petition for examination. (1) Upon motion of either the petitioner or the person, or
upon its own motion, the court may order that the person be examined by a
psychiatrist appointed by the court. The examination may be conducted on an
outpatient basis, and the person shall have the right to the presence of
counsel while it is being conducted. A report of the examination shall be
furnished to the court, the petitioner, and the person, and his or her counsel
at least forty-eight (48) hours prior to the hearing.
(2) If the petition is submitted without two (2) physicians'
certificates as required under subsection (c), the petition shall be accompanied
by a motion for a psychiatric examination to be ordered by the court. The
motion shall be heard on the date of the preliminary hearing set by the court
pursuant to subsection (d) or as soon thereafter as counsel for the subject
person is engaged, appointed, and ready to proceed. The motion shall be
verified or accompanied by affidavits and shall set forth facts demonstrating
the efforts made to secure examination and certification by a physician or
physicians and shall indicate the reasons why the efforts failed.
(3) After considering the motion and such testimony as may
be offered on the date of hearing the motion, the court may deny the
application and dismiss the petition, or upon finding (i)
that there is a good cause for the failure to obtain one or more physician's
certificates in accordance with subsection (c) and (ii) that there is probable
cause to substantiate the allegations of the petition, the court shall order an
immediate examination by two (2) qualified psychiatrists, pursuant to subsection
(e)(1).
(f) Professional assistance. A person with respect to whom a court hearing has been
ordered under this section shall have and be informed of a right to employ a
mental health professional of his or her choice to assist him or her in
connection with the hearing and to testify on his or her behalf. If the person
cannot afford to engage such a professional, the court shall, on application,
allow a reasonable fee for the purpose.
(g) Procedure.
Upon receipt of the required certificates and/or psychiatric reports as
applicable hereunder, the court shall schedule the petition for final hearing
unless, upon review of the reports and certificates, the court concludes that
the certificates and reports do not indicate with supporting reasons, that the person
who is the subject of the petition is in need of care and treatment, that his
or her unsupervised presence in the community would create a likelihood of
serious harm by reason of mental disability, and that all alternatives to
certification have been investigated and are unsuitable, in which event the
court may dismiss the petition.
(h) Venue.
An application for certification under this section shall be made to, and all
proceedings pursuant thereto shall be conducted in, the district court, or
family court in the case of a person who has not yet reached his or her
eighteenth (18th) birthday, of the division or county in which the subject of
an application may reside or may be, or when the person is already a patient in
a facility, in the district court or family court of the division or county in
which the facility is located, subject, however, to application by any
interested party for change of venue because of inconvenience of the parties or
witnesses or the condition of the subject of the petition or other valid
judicial reason for the change of venue.
(i) Hearing. A hearing scheduled under this section shall be
conducted pursuant to the following requirements:
(1) All evidence shall be presented according to the usual
rules of evidence which apply in civil, non jury cases. The subject of the
proceedings shall have the right to present evidence in his or her own behalf,
and to cross examine all witnesses against him or her, including any physician
who has completed a certificate or filed a report as provided hereunder. The
subject of the proceedings shall have the further right to subpoena witnesses
and documents, the cost of such to be borne by the court where the court finds
upon an application of the subject that the person cannot afford to pay for the
cost of subpoenaing witnesses and documents.
(2) A verbatim transcript or electronic recording shall be
made of the hearing which shall be impounded and obtained or examined only with
the consent of the subject thereof (or in the case of a person who has not yet
attained his or her eighteenth (18th) birthday, his or her parent, guardian, or
next of kin) or by order of the court.
(3) The hearing may be held at a location other than a
court, including any facility where the subject may be then a patient, where it
appears to the court that holding the hearing at an other
location would be in the best interests of the subject thereof.
(4) The burden of proceeding and the burden of proof in a
hearing held pursuant to this section shall be upon the petitioner. The
petitioner has the burden of demonstrating that the subject of the hearing is
in need of care and treatment in a facility, is one whose continued
unsupervised presence in the community would create a likelihood of serious
harm by reason of mental disability, and what alternatives to certification are
available, what alternatives to certification were investigated, and why these
alternatives were not deemed suitable.
(5) The court shall render a decision within forty-eight
(48) hours after the hearing is concluded.
(j) Order.
If the court at a final hearing finds by clear and convincing evidence that the
subject of the hearing is in need of care and treatment in a facility, and is
one whose continued unsupervised presence in the community would, by reason of
mental disability, create a likelihood of serious harm, and that all
alternatives to certification have been investigated and deemed unsuitable, it
shall issue an order committing the person to the custody of the director for
care and treatment or to an appropriate facility. In either event and to the
extent practicable, the person shall be cared for in a facility which imposes
the least restraint upon the liberty of the person consistent with affording
him or her the care and treatment necessary and
appropriate to his or her condition. No certification shall be made under this
section unless and until full consideration has been given by the certifying
court to the alternatives to in-patient care, including, but not limited to, a
determination of the person's relationship to the community and to his or her
family, of his or her employment possibilities, and of all available community
resources, alternate available living arrangements, foster care, community
residential facilities, nursing homes, and other convalescent facilities. A
certificate ordered pursuant to this section shall be valid for a period of six
(6) months from the date of the order. At the end of that period the patient
shall be discharged, unless he or she is discharged prior to that time, in
which case the certification shall expire on the date of the discharge.
(k) Appeals.
(1) A person certified under this section shall have a right to appeal from a
final hearing to the supreme court of the state within thirty (30) days of the
entry of an order of certification. The person shall have the right to be
represented on appeal by counsel of his or her choice or by the mental health
advocate if the supreme court finds that he or she
cannot afford to retain counsel. Upon a showing of indigency
the supreme court shall permit an appeal to proceed
without payment of costs, and a copy of the transcript of the proceedings below
shall be furnished to the subject of the proceedings or to his or her attorney
at the expense of the state. The certifying court shall advise the person of
all his or her rights pursuant to this section immediately upon the entry of an
order of certification.
(2) Appeals under this section shall be given precedence,
insofar as practicable, on the supreme court dockets.
The district and family courts shall promulgate rules with the approval of the supreme court to insure the expeditious transmission of the
record and transcript in all appeals pursuant to this chapter.
§ 40.1-5-9 Right to treatment
– Treatment plan. – (a) Any person who is a patient in a facility pursuant to
this chapter shall have a right to receive the care and treatment that is
necessary for and appropriate to the condition for which he or she was admitted
or certified and from which he or she can reasonably be expected to benefit.
Each patient shall have an individualized treatment plan. This plan shall be
developed by appropriate mental health professionals, including a psychiatrist,
and implemented as soon as possible – in any event no later than five (5)
days after a patient's voluntary admission or involuntary court certification.
Each individual treatment plan shall be made in accordance with the
professional regulations of each facility, and by way of illustration and not
limited to the following, shall contain:
(1) A statement of the nature of the specific problems and
specific needs of the patient;
(2) A statement of the least restrictive treatment
conditions necessary to achieve the purposes of certification or admission;
(3) A description of intermediate and long-range treatment
goals;
(4) A statement and rationale for the plan of treatment for
achieving these intermediate and long-range goals.
(b)
The individualized treatment plan shall become part of the patient's record in
accordance with § 40.1-5-5(g), and the subject of periodic review in accordance
with § 40.1-5-10. In implementing a treatment plan on behalf of any patient the
official in charge of any facility or his or her designee(s) may, when it is
warranted authorize the release of the patient for such periods of time and
under such terms and conditions as they deem appropriate.
§ 40.1-5-10 Periodic institutional
review proceedings. – (a) In general. Each patient admitted or certified
to a facility pursuant to the provisions of this chapter shall be the subject
of a periodic review of his or her condition and status to be conducted by a
review committee composed of at least one psychiatrist and other mental health
professionals involved in treating the patient. The committee shall be composed
of no fewer than three (3) persons and shall be appointed by the director of
the facility or his or her designated agent. The reviews shall minimally
involve an evaluation of the quality of care which the patient is receiving,
including an evaluation of the patient's treatment plan, and the making of any
recommendations for the improvement of the care or for the revision of the
treatment plan, including alternative available living arrangements, foster
care, community residential facilities, nursing homes, and other convalescent
facilities. At every fourth review, one member of the committee shall be a
member of the hospital's utilization review committee appointed by that
committee's chairperson.
(b) Frequency.
The review proceedings shall take place at least once within each ninety (90)
day period during which a person is a patient in the facility.
(c) Results of review. The results of each review shall be entered in the
patient's medical record, presented orally to the patient within twenty-four
(24) hours and confirmed by written notice to the patient and his or her
guardian, or with the patient's consent, to his or her next of kin, within
seventy-two (72) hours. In the event the director of the facility is not a
member of the committee the notice shall be transmitted to him or her as well.
Where the committee determines that further care in the facility is required,
the notice to the patient shall include an explanation of the patient's rights
to pursue discharge as elsewhere provided in this chapter.
§ 40.1-5-11 Discharge – Recertification. – (a) The official in charge of any facility or his or
her designated agent, on having his or her reasons noted on the patient's
records, shall discharge any patient certified or admitted pursuant to the
provisions of this chapter, when:
(1) Suitable alternatives to certification or admission are
available;
(2) The patient is, in the judgment of the official,
recovered;
(3) The patient is not recovered, but discharge, in the
judgment of the official, will not create a likelihood of serious harm by
reason of mental disability.
(b)
When a patient discharge is requested and if the discharge is denied, the
reasons therefor shall be stated in writing and noted
in the patient's record and a copy thereof shall be given to the person
applying for the release.
(c)
At the expiration of the six (6) month period set forth in § 40.1-5-8(j), or
any subsequent six (6) month period following recertification
pursuant to this section the patient shall be unconditionally released unless a
recertification petition is filed by the official in
charge of a facility or his or her designated agent within no less than fifteen
(15) days and no more than thirty (30) days prior to the scheduled expiration
date of a six (6) month period. A hearing must be held pursuant to the petition
and a decision rendered before the expiration of the six (6) month period. A recertification hearing shall follow all of the procedures
set forth in § 40.1-5-8 and recertification may be
ordered only if the petitioner proves by clear and convincing evidence that the
conduct and responses of the patient during the course of the previous six (6)
month period indicate that the patient is presently in need of care and
treatment in a facility; is one whose continued unsupervised presence in the
community would create a likelihood of serious harm by reason of mental
disability; and that all alternatives to recertification
have been investigated and deemed unsuitable.
§ 40.1-5-12 Habeas corpus and other
remedies. – Nothing
in this chapter shall be construed as abrogating any rights of a person
certified or someone acting on his or her behalf to petition for writ of habeas
corpus and/or other relief. In addition, petitions may be specifically based
upon, but not limited to, the following grounds:
(1) An alleged insufficiency or illegality of the
proceedings leading to the patient's certification not previously litigated on
appeal;
(2) Although the certification proceedings were proper the
patient's continued detention or hospitalization or the form of his or her
hospitalization is not warranted under the provisions of this chapter;
(3) The absence of a planned and adequate treatment program
to meet the needs of the patient.
§ 40.1-5-13 Mental health advocate.
– There is
hereby created the office of mental health advocate.
§ 40.1-5-17 Assistance
of indigents. – If the mental health advocate, after examination and investigation of a
financial statement of a person subject to the provisions of this chapter, is
satisfied that the person submitting the financial statement is indigent, the
mental health advocate or one of his or her assistants shall represent the
person.
§ 40.1-5-18 Confidentiality
of information received. – The mental health advocate, his or her assistants, and every
employee of his or her office are hereby expressly prohibited from divulging to
any individual not officially connected with his or her office any information
obtained by the mental health advocate, his or her assistants or any employee
of that office in the regular course of their duty or from any financial
statement submitted from the permanent records of that office, which would
reveal any of the information relative to the financial status of any person
submitting a financial statement; every request for information directed to the
mental health advocate shall be denied if the request would necessitate that
individual to divulge any information which is herein declared to be held
confidential by the mental health advocate.
§ 40.1-5-19 False
statements and representations. – Whoever knowingly makes a false statement or representation
to the mental health advocate, his or her assistants or any employee of his or
her office to obtain the legal services of the mental health advocate or one of
his or her assistants under this chapter, either for him or herself or for any
other person, shall, upon conviction, be punished by a fine of not less than
fifty dollars ($50.00) nor more than three hundred dollars ($300), or by
imprisonment not longer than thirty (30) days, or both a fine and imprisonment;
and each false statement or representation shall constitute a separate and
distinct offense.
§ 40.1-5-20 Exemption
from court fees or charges. – Any client represented by the mental health advocate or his
or her assistants under the provisions of this chapter shall not be required to
pay any fees to the district, superior, family, or supreme courts or the clerks
thereof, or any fees or charges for the services or travel of sheriffs or deputy
sheriffs for serving any writ, citation, subpoena, or other process or for
making copies of the writs.
§ 40.1-5-22 Duties of the mental
health advocate. – The mental health advocate shall perform the following duties:
(1)
Insure that each person in treatment and, in proper cases, others interested in
the person's welfare, is apprised of his or her rights under this chapter.
(2)
Review periodically the procedures established by facilities to carry out
provisions of this chapter.
(3)
Assist any patient to obtain needed legal assistance concerning problems not
related to the provisions of this chapter by referring the persons to
appropriate lawyer referral services, public or private, depending upon the
person's ability to pay, and assist the persons in the preparation and
transmission of correspondence, forms and other communications.
(4)
Review complaints of persons and investigate those where it appears that a
person may be in need of assistance from the mental health advocate.
(5)
Investigate and report to the director or person in charge of any facility, any
occurrences, conditions, or practices with respect to procedure, personnel, or
facilities which reflect inadequacies with reference to the provisions of this
chapter.
(6)
Act as counsel for all indigent persons and to assist other than indigents to
secure counsel relating to the application of the provisions of this chapter,
including, but not limited to, judicial proceedings hereunder.
(7)
Take all possible action including, but not limited to, programs of public
education, legislative advocacy, and formal legal action, to secure and ensure
the legal, civil, and special rights of persons who are subject to the
provisions of this chapter.
(8)
Establish a formal liaison between the mental health advocate and community
based mental health clinics and other community facilities.
§ 40.1-5-23 Access to information.
– The mental
health advocate shall have access to the following information:
(1)
The names of all persons in treatment, and the date and place where treatment
was begun, unless the patient specifically objects in writing. The patient
shall be informed of his or her right to so object at the time of his or her
admission.
(2)
All written protests and withdrawals of protests of involuntary treatment.
(3)
All current records required to be maintained under the provisions of this
chapter, pertaining to individualized treatment plans and notices of denials of
special rights, provided that the patient in treatment or guardian gives
written permission.
§ 40.1-5-24 Rights and powers of
mental health advocate. – The mental health advocate shall have the following rights
and powers:
(1)
To communicate privately by mail or orally with any person in treatment.
(2)
To inspect all records relating to persons in treatment provided that the
person in treatment or his or her guardian gives written permission.
(3)
To take whatever steps are appropriate to see that persons are made aware of
the services of the mental health advocate's office, its purpose, and how it
can be contacted. Officials in charge of each facility shall cooperate with the
mental health advocate in this respect.
(4)
To take such actions as he or she deems appropriate to protect the rights of
those criminally insane patients included within the forensic unit of the
department of mental health, retardation, and hospitals and those previously
considered to be within the authority of the interstate compact on the mentally
disordered offender.
(5)
To take necessary action to protect the rights of clients of community mental
health centers.
(6)
To provide legal representation for indigent persons receiving inpatient
treatment for substance abuse.
§ 40.1-5-26 Disclosure of
confidential information and records. – (a) The fact of admission or
certification and all information and records compiled, obtained, or maintained
in the course of providing services to persons under this chapter shall be
confidential.
(b)
Information and records may be disclosed only:
(1) To any person, with the written consent of the patient
or his or her guardian.
(2) In communications among qualified medical or mental
health professionals in the provision of services or appropriate referrals, or
in the course of court proceedings. The consent of the patient, or his or her
guardian, must be obtained before information or records may be disclosed by a
professional person employed by a facility to a professional person not
employed by the facility who does not have the medical responsibility for the
patient's care.
(3) When the person receiving services, or his or her
guardian, designates persons to whom information or records may be released, or
if the person is a minor, when his or her parents or guardian make the
designation.
(4) To the extent necessary for a recipient to make a claim,
or for a claim to be made on behalf of a recipient for aid, insurance, or
medical assistance to which he or she may be entitled.
(5) To proper medical authorities for the purpose of
providing emergency medical treatment where the person's life or health are in
immediate jeopardy.
(6) For program evaluation and/or research, provided that
the director adopts rules for the conduct of the evaluations and/or research.
The rules shall include, but need not be limited to, the requirement that all
evaluators and researchers must sign an oath of confidentiality, agreeing not
to divulge, publish, or otherwise make known, to unauthorized persons or the
public, any information obtained in the course of the evaluation or research
regarding persons who have received services such that the person who received
the services is identifiable.
(7) To the courts and persons designated by judges thereof
in accordance with applicable rules of procedure. The records and files
maintained in any court proceeding pursuant to this chapter shall be
confidential and available only to the person who was the subject of the
proceeding or his or her attorney.
(8) To the state medical examiner in connection with the
investigation of a fatality of a current or former patient to the extent
necessary to assist the medical examiner in determining the cause of death.
(9) To the director of health in accordance with and to the
extent authorized by the provisions of chapter 37.3 of title 5 and all
applicable federal laws and regulations, provided however that with respect to
any information obtained, the department complies with all state and federal
confidentiality laws, including but not limited to, chapter 37.3 of title 5 and
specifically § 5-37.3-4(c), and that the name or name(s) of the patient(s) who
is or are determined by the director of health to be immaterial to the request,
inquiry or investigation remain unidentifiable. Any treatment facility which
provides information to the director of health in accord with a request under
this subsection is not liable for wrongful disclosure arising out of any
subsequent disclosure by the director of health.
§ 40.1-5-27 Release of
information to patient's family. – Nothing in this chapter shall prohibit the release of
information to a patient's attorney, his or her guardian or conservator, if
any, or a member of the patient's family the information that the person is
presently a patient in the facility or that the person is seriously physically
ill, if the official in charge of the facility or his or her designated agent
determines that the release of the information is in the best interests of the
person. Upon the death of a patient, his or her guardian or conservator, if
any, and a member of his or her family shall be notified.
§ 40.1-5-27.1 Disclosure by mental
health professional. – (a) Notwithstanding §§ 40.1-5-26 and 40.1-5-27, a mental
health professional providing care and treatment to an adult person with a
mental disability as defined in § 40.1-5-2(8) may provide certain information
to a family member or other person if this family member or other person lives
with and provides direct care to the mentally disabled person, and without such
direct care there would be significant deterioration in the mentally disabled person's
daily functioning, and such disclosure would directly assist in the care of the
mentally disabled person. Disclosure can be made only at the written request of
the family member or person living with the mentally disabled person.
(b)
Prior to the disclosure, the mentally disabled person shall be informed in
writing of the request, the name of the person requesting the information, the
reason for the request, and the specific information being provided. Prior to
disclosure the mentally disabled person shall be provided the opportunity to
give or withhold consent. If the mentally disabled person withholds consent,
the information shall not be disclosed and the family member or other person
shall be provided the opportunity to appeal. Disclosures shall be limited to
information regarding diagnosis, admission to or discharge from a treatment
facility, the name of the medication prescribed, side effects of such
prescribed medication.
(c)
On or before
§ 40.1-5-28 Notice of disappearance
of patient. – When
disclosure is necessary for the protection of the patient or others due to his
or her unauthorized disappearance from the facility, and his or her whereabouts
is unknown, notice of the disappearance, along with relevant information, shall
be made to relatives and governmental law enforcement agencies designated by
the physician in charge of the patient or the professional person in charge of
the facility, or his or her professional designee.
§ 40.1-5-29 Record of disclosure.
– When any
disclosure of information or records is made, the physician in charge of the
patient or the professional person in charge of the facility or his or her
designee shall promptly cause to be entered into the patient's medical record
the date and circumstances under which the disclosure was made, the names, and
relationships to the patient, if any, of the person or agencies to whom the
disclosure was made, and the information disclosed.
§ 40.1-5-30 Statistical data.
– Nothing in
this chapter shall be construed to prohibit the compilation and publication of
anonymous statistical data for use by government or researchers under
standards.
§ 40.1-5-32 Transfer of patients.
– (a) No
transfer of a patient already in a facility shall be made to a facility or
section of a facility maintained for patients certified upon an order of a
court or judge having criminal jurisdiction in a proceeding arising out of a
criminal offense. The official in charge of a facility or his or her designated
agent shall have reasonable discretion to order or permit transfers within a
facility for reason of finances, adequacy of personnel, and upon conditions set
forth in rules or regulations promulgated by the director pursuant hereto.
(b)
A patient certified to any facility pursuant to the provisions of this chapter
may be transferred, with his or her consent or that of his or her guardian, to
any facility within or without the state or to an institution operated by the
veterans' administration or to any agency of the United States government for the
treatment of mental disability at a facility under its jurisdiction, within or
without the state, when deemed in the interest of the patient and approved by
the transferring and receiving facilities. A transfer as above described may be
accomplished without the consent of a patient or his or her guardian only upon
prior application to, and a hearing in, the district court (or family court in
the case of a patient under eighteen (18) years of age) and a specific finding
by the court that the proposed transfer is in the best interests of the patient
and is to a facility which will afford the patient the care and treatment
necessary and appropriate to his or her condition.
(c)
A patient received on voluntary admission may be transferred as provided in
subsection (b) with his or her consent; and if the patient shall not yet have
attained his or her eighteenth birthday, with the consent of his or her parent,
guardian, next of kin, or person who signed for his or her admission. A
voluntary patient may be transferred to another facility without his or her
consent only upon the filing of a petition for certification to the facility,
and a finding of probable cause at a preliminary hearing in accordance with §
40.1-5-8.
(d)
Patients transferred to facilities without the state or to the veterans'
administration or the United States public health service, or another agency
operated by the United States government, shall be subject to the rules and
regulations of the facility or institution to which they are transferred, and
the person or official in charge thereof, in connection with the care and
treatment of the patient, being vested with the same powers as persons in
charge of similar facilities within the state, provided that no such transfer
shall be made to a facility maintained for the purpose of patients committed
upon an order of a court or judge having criminal jurisdiction in a proceeding
arising out of a criminal offense. Transfers of patients between states which
have entered into the interstate compact on mental health shall be pursuant to
and in accordance with said compact whenever applicable.
§ 40.1-5-33 Payment for care and
treatment. – For
the purposes of this chapter, facilities shall be maintained by the state for
the care, treatment, and maintenance of the mentally disabled, and the patients
may be maintained and treated in the facilities or in foster family care, and
may receive the services conditioned upon prompt and regular payments for the
care, maintenance, and treatment or for the services in amounts as fixed by the
director. In the discretion of the director the rates so fixed may be the
reimbursement rates or in excess thereof. A preference shall be given to
persons whose estate, or the person or persons legally liable for their
support, cannot sufficiently pay for the care and treatment, or for the
services in licensed private facilities or from sources outside the department.
The director in his or her discretion may accept payments for services at less
than the reimbursement rates, but the acceptance of the lesser payments shall
not release the patient, his or her estate, or relatives, if they have
sufficient financial ability, from the obligation to make up the difference
between the amount fixed, accepted, or paid and the full reimbursement rates.
§
40.1-5-34 Exclusiveness of this chapter.
– Where under any provision of any existing law, except in the case
of a person held under criminal process, or under process of the family court
for an act which would be considered a crime if committed by an adult, any
person with mental disability, as defined in this chapter, shall have recourse
to or be dealt with as provided in this chapter, exclusively. This section
shall prevail notwithstanding the provisions of §
§ 40.1-5-35 Support of poor or
indigent patients. – The director may maintain without charge or defray the expense of care
and treatment of such poor or indigent persons as are mentally disabled
patients under treatment in accordance with the provisions of this chapter, who
may have been admitted or certified to any facility under the provisions
hereof. No person shall be denied care and treatment under the provisions of
this chapter at any facility maintained by the state because he or she is
unable to pay for the care and treatment.
§ 40.1-5-36 Guardians ad litem.
– (a) At any
hearing hereunder or upon application thereto, the district court or family
court in the case of a patient under eighteen (18) years of age may appoint
guardians ad litem to represent any patient in matters concerning the
provisions of this chapter. It shall be the duty of the guardian ad litem to
make an investigation of the facts, and to report the facts to the court with
his or her recommendations if any.
(b)
The guardian ad litem shall be paid for his or her services, in an amount to be
approved by the court, and the guardian ad litem's
services shall be paid from the estate of the patient, or if so ordered by the
court, shall be paid by the state, and reimbursement shall be had by the state
from the estate and assets of the patient, in the same manner as reimbursement
for care and treatment is had by the state.
(c)
A party aggrieved by a final order of the court may seek review thereof in the
supreme court by writ of certiorari in accordance with the procedures contained
in § 42-35-16.
§ 40.1-5-37 Service of process on
patients. – No
civil process or notice shall be served upon any patient, unless the officer or
person charged with the service shall apply to the physician in charge of the
facility or his or her designated agent where the patient is confined, and
receive a statement from the physician that service of the process or notice
will not be injurious to the mental health of the patient, and the statement
shall be annexed to his or her return of service. In the event that the
physician in charge or his designated agent shall state that it would be
injurious to the mental health of the patient, the process or notice shall not
be served on the patient and the statement shall be set forth in his or her
return, and the court shall order notice of the process or notice to be
published and shall appoint a guardian ad litem to represent the interests of
the patient, whether the patient be otherwise represented or not.
§ 40.1-5-38 Conspiracy to admit
person improperly. – Any person who knowingly and willfully conspires with any other person
unlawfully to improperly cause to be admitted or certified to any facility, any
person not covered by the provisions of this chapter, shall on conviction therefor, be fined not exceeding five thousand dollars
($5,000) or imprisoned not exceeding five (5) years at the discretion of the
court.
§ 40.1-5-39 Deprivation of rights of
persons admitted to facilities. – Any person who willfully withholds from or denies to any
person admitted to a facility as defined in this chapter, any of his or her
rights as granted in this chapter, shall, on conviction thereof, be fined not
exceeding two thousand dollars ($2,000) or imprisoned not exceeding two (2)
years at the discretion of the court.
§ 40.1-5-40 Disciplinary action
against employees of facilities. – Any employee of any facility who shall deny to or
withhold from any patient any right granted him or her by this chapter shall,
independently of the above criminal sanctions, be subject to such disciplinary
action as the officer in charge shall see fit to impose, after notice, a
hearing, and finding of a violation of the right.
§ 40.1-5-40.1 Duty to report.
– Any
employee who has reasonable cause to believe that an assault or a battery has
been committed upon a patient shall make an immediate report, including the
identity of parties and witnesses and details of the incident, to the director
of the department of mental health, retardation, and hospitals or his or her designee.
The director of the department shall cause the report to be investigated
immediately and further shall notify the mental health advocate and appropriate
law enforcement agencies of the investigation. Any person who fails to make a
report shall be guilty of a misdemeanor punishable by a fine of not more than
five hundred dollars ($500.00).
§ 40.1-5-40.2 Immunity from
liability for reporting patient abuse. – Any person who, in good faith, makes
a report pursuant to § 40.1-5-40.1, excluding any perpetrator or conspirator of
the acts, shall have immunity from any liability, civil or criminal, that might
be incurred as a result of having made the report.
§ 40.1-5-41 Immunity of physicians
and surgeons from liability. – Nothing contained herein shall be deemed to contravene the
provisions of § 5-37-14, and no physician or surgeon licensed to practice in
this state, having met the requirements either of the statute or of this
chapter, shall be made to answer in any court for his or her participation in any
proceeding under this chapter except upon a showing of actual fraud; provided
further, that no physician or surgeon shall be made to answer in any court for
any damage or injury to any person or thing arising out of a patient's
enjoyment and/or exercise of rights protected by this chapter including,
without limitation, discharge, where the enjoyment and/or exercise of the
rights, or any of them, are in contravention of either the written orders or
prescription or advice of a physician or surgeon.
CHAPTER 40.1-8.5
– Community Mental Health Services
§ 40.1-8.5-1 Policy and purpose.
– (a) The
state recognizes that children and adults with mental disability are entitled
to appropriate, accessible, and adequate mental health services in the least
restrictive environment which appropriately can serve their needs.
(b)
The state recognizes private, nonprofit community mental health centers which
provide mental health services to children and adults with mental disabilities
and it is the policy of the state to support these mental health centers as an
adjunct and alternative to inpatient services. The state shall fund community
mental health centers and, shall provide a mechanism by which the state and
local governments share responsibility for assuring community mental health
services to mentally disabled children and adults and/or those who are unable
to pay for mental health services.
§ 40.1-8.5-2 Definitions. – As used in this chapter:
(1)
"Audit" means an annual financial accounting of a center's financial
situation, conducted by a certified public accountant, within one hundred
twenty (120) days from the end of the center's fiscal year, and which includes,
for the year reviewed and the immediate preceding year, full financial
disclosure of the center's assets, liabilities, fund balances, revenues, and
expenditures by program, and a verification of matchable
funds for the year reviewed.
(2)
"Board" means the community mental health board created pursuant to
this chapter as the governing body of the community mental health center.
(3)
"Center" means the community mental health center which is a local,
nonprofit entity organized and incorporated pursuant to the laws of the state,
governed by a board, and recognized by the department of mental health, retardation
and hospitals as the community mental health center for a designated mental
health service area.
(4)
"Department" means the state department of mental health, retardation
and hospitals.
(5)
"Director" means the director of the state department of mental
health, retardation and hospitals.
(6)
"Fiscal year" means the fiscal year used by the state.
(7)
"Matching grant funds" means state funds in an amount up to and not
more than four dollars ($4.00) for each dollar of matchable
funds, certified and budgeted in accordance with this chapter. Matching grant
funds excludes, but may be in addition to, other funds provided by the state
for mental health services.
(8)
"Mental disability" means any mental disorder in which the capacity
of the person to exercise self-control or judgment in the conduct of his/her
affairs and social relations or to care for his/her personal needs is impaired.
(9)
"Mental health services" means those services provided to mentally
disabled children and adults and shall include but not be limited to
psychiatric, medical, nursing, psychological, social, rehabilitative and
support services provided in the prevention, diagnosis, treatment and follow-up
of mental disabilities, and in addition, may include those services designed to
prevent mental disabilities or be of a consultative, informational or
educational nature about mental disabilities.
(10)
"Mental health service area" herein also referred to as "service
area", means the geographical area within the boundaries of cities and towns,
as designated by the director.
(11)
"Participating municipalities" means those cities and towns which
provide funds to a particular community mental health center for mental health
services and which receive matching grant fund supported services from that
community mental health center.
§ 40.1-8.5-3 Matchable
funds. – (a) Matchable funds are those dollars received, whether through
a grant by a center for the general provision of mental health services,
excluding funds for capital expenditures, and received from one or more of the
following:
(1) Individual or business charitable gifts;
(2) Community fund raising net dollars;
(3) Unrestricted donations;
(4) A participating municipality.
(b)
The director may authorize a center to include as matchable
funds those federal funds the center received directly from the federal
government for the provision of mental health services when:
(1) The director determines that without the inclusion of
such federal funds provided mental health services to the uninsured or to high
risk populations in the center's service area will be seriously deficient or
disrupted; and
(2) Such federal funds are not subject to statutory or
regulatory restrictions or requirements that would prevent their use as matchable funds.
§ 40.1-8.5-4 Community mental health
boards – Composition. – Each community mental health center shall be governed by a
board composed of at least nine (9) members of recognized ability and/or
interest in the problems of mental health and substance abuse. Community mental
health boards referred to in this chapter shall be incorporated under the laws
of
§ 40.1-8.5-5 Powers and duties of
community mental health boards. – Subject to the provisions of this section and the rules and
regulations of the director, each board shall:
(1)
Identify the mental health service needs of its service area population;
(2)
Assess the mental health services available to meet
the mental health needs within its service area;
(3)
Review and evaluate the mental health services provided by its center;
(4)
Assure that the mental health services offered by its center with matchable funds and match address the identified mental
health service needs of the service area to the maximum extent possible within
the limits of the appropriated and allocated matching grant funds;
(5)
Be available to the department to plan and coordinate the development and
delivery of mental health services within its service area;
(6)
Prepare and approve a plan and budget, prepared in accordance with department
requirements, for the delivery of mental health services to be provided by its
center with resources, including, but not limited to, matchable
funds and matching grant funds; such plan and budget to be submitted annually
to the department for its approval.
(7)
Develop and implement a mechanism by which its center's consumers and family
members of its consumers participate in the overall goals, objectives and
methods of the center, as reflected in its plan;
(8)
Solicit public and private financial support for mental health services
provided by its center;
(9)
Promote and approve contractual agreements with other state, federal, local and
private agencies, e.g. social service, judicial, health, and education
entities, as it deems necessary;
(10)
Employ the executive administrator of its center and, in the event such a
position is vacant, assume the functions of that position;
(11)
Arrange for and review its center's audit;
(12)
Assure that funds available pursuant to this chapter are used to provide mental
health services to those who do not have the ability to pay and that each
client's eligibility to receive public or private assistance be
exhausted prior to the expenditure of state and local monies available pursuant
to this chapter.
§ 40.1-8.5-6 Appropriation and
allocation of matching grant funds. – (a) The state's
appropriations for the department shall be sufficient to provide matching grant
funds as defined in this chapter.
(b)
Matching grant funds shall be allocated annually to each board by the
department, in accordance with this chapter, and shall be based on the plan and
budget for the funding period submitted to the department by the board and the matchable funds received and certified in its audit for the
next to last year preceding the funding year.
§ 40.1-8.5-7 Power and duties of
director. – In
addition to the powers and duties delineated elsewhere in this chapter and
other powers and duties already conferred by law, the director shall:
(1)
Promulgate administrative and fiscal regulations necessary to carry out the
requirements of this chapter;
(2)
Plan and coordinate with the assistance of the boards the development and
delivery of comprehensive mental health services within each service area;
(3)
Establish guidelines for general evaluation procedures to assure program
quality;
(4)
Review each board's overall plan and budget and approve the expenditure of
department funds;
(5)
Provide consultative staff services to each board, as needed;
(6)
Require assurances from each board that no persons within its area are denied
service on the basis of race, creed, color, gender, age, disability, or sexual
preference;
(7)
Require assurances from each board that no person will be denied service based
on the person's ability to pay, contingent upon the availability of resources;
(8)
Require assurances from each board that hiring of staff, full or part-time, is
done without discrimination on the basis of race, creed, color, gender, age,
disability, sexual preference or political affiliation and is in compliance
with state and federal laws;
(9)
Provide qualified department personnel under the supervision of the director to
monitor implementation of this chapter.
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