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TITLE 33 MENTALLY ILL AND MENTALLY RETARDED PERSONS

Part 1—Definitions

33-1-101 Definitions.

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

(1) "Alcohol abuse" means a condition characterized by the continuous or episodic use of alcohol resulting in social impairment, vocational impairment, psychological dependence or pathological patterns of use;

(2) "Alcoholism" means alcohol abuse which results in the development of tolerance or manifestations of alcohol abstinence syndrome upon cessation of use;

(3) "Commissioner" means the commissioner of the department of mental health and mental retardation;

(4) "County of residence" means that county in which the individual has resided continuously for as long as sixty (60) days immediately prior to that individual's hospitalization or admission;

(5) "Department" means the department of mental health and mental retardation;

(6) "Developmental center" means a public or private institution or part thereof, within the state of Tennessee, equipped to provide inpatient care and treatment including training, for the mentally retarded, or any similarly equipped institution under the supervision of the department of mental health and mental retardation;

(7) "Drug abuse" means a condition characterized by the continuous or episodic use of a drug or drugs resulting in social impairment, vocational impairment, psychological dependence or pathological patterns of use;

(8) "Drug dependence" means drug abuse which results in the development of tolerance or manifestations of drug abstinence syndrome upon cessation of use;

(9) "Hospital" means a public or private hospital or institution, or part thereof, within the state of Tennessee, equipped to provide inpatient care and treatment for the mentally ill, or any similarly equipped state hospital under the supervision of the department of mental health and mental retardation;

(10) "Indigent person" means a person whose property or estate is insufficient to pay any part of the person's maintenance in a state institution for the mentally ill or mentally retarded, and who does not have any responsible relatives able to pay for any part of the person's maintenance;

(11) "Licensed physician" means a graduate of an accredited medical school authorized to confer upon graduates the degree of Doctor of Medicine (M.D.) who is duly licensed in Tennessee, or an osteopathic physician who is a graduate of a recognized osteopathic college authorized to confer the degree of Doctor of Osteopathy (D.O.) and who is licensed to practice osteopathic medicine in Tennessee;

(12) "Licensed psychologist" means an individual licensed as a psychologist under the laws of Tennessee;

(13) "Maintenance" includes the cost of all institutional and professional services received by a patient or resident;

(14) "Mentally ill individual" means an individual who suffers from a psychiatric disorder, alcoholism, or drug dependence, but excluding an individual whose only mental disability is mental retardation;

(15) "Mentally retarded individual or mentally deficient individual" means an individual who has significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, and manifested during the developmental period;

(16) "Patient" means an individual under evaluation, care or treatment in a psychiatric hospital, mental health center, or other facility for the mentally ill;

(17) "Resident" means an individual under evaluation, care, training, or treatment in a developmental center or other facility for the mentally retarded;

(18) "Resident of Tennessee" means an individual who has lived continuously in Tennessee for a period of sixty (60) days and who has not acquired residence in another state by living continuously therein for at least sixty (60) days subsequent to residing in Tennessee. Time spent in a public institution for the care of the mentally ill or for the mentally retarded or on leave of absence therefrom shall not be counted in determining the question of residence in Tennessee or in another state;

(19) "Responsible relatives" means the spouse, if there be such, of the mentally ill patients receiving care and service in mental health programs under the jurisdiction of the department of mental health and mental retardation, and the parent or parents of unmarried mentally ill patients or mentally retarded residents who have not attained the age of eighteen (18) and are receiving care and service in mental health programs of the department of mental health and mental retardation, or any relative who declares himself to be financially responsible for the care and service of a mentally ill patient or mentally retarded resident. Any financial responsibility incurred prior to April 30, 1973 which would not be a financial responsibility under the terms of this item is abrogated to the extent that such responsibility is subject to any pending claim by the state that remains unsatisfied on April 30, 1973;

(20) "Superintendent" means the individual in charge of a public or private hospital or developmental center or treatment resource, or the individual's designee;

(21) "Treatment resource" means any public or private facility, service, or program providing treatment or rehabilitation services for mental illnesses including, but not limited to, detoxification centers, licensed hospitals, community mental health centers, clinics or programs, halfway houses, and rehabilitation centers;

(22) "Community mental health agency" means a private entity qualified as a tax exempt organization under Internal Revenue Code 501(c)(3) or a public entity created by private act of the general assembly which was a grantee of the department of mental health and mental retardation for fiscal year 1995- 1996. If any such entity underwent a corporate name change or corporate restructuring since July 1, 1995, then the successor or surviving corporation shall be deemed to be a "community mental health agency", for purposes of this definition; and

(23) "Community mental health center" means a private entity qualified as a tax exempt organization under Internal Revenue Code 501(c)(3) or a public entity created by private act of the general assembly; provided, that prior to July 1, 1992, such entity must have been an approved provider in Tennessee under the Medicaid Clinic Option and a grantee of the department of mental health and mental retardation. If any such entity underwent a corporate name change or corporate restructuring since July 1, 1992, then the successor or surviving corporation shall be deemed to be a community mental health center for purposes of this definition.

CHAPTER 2 FACILITIES AND SERVICES

Part 6 – Appropriate and Effective Care

33-2-604 Pilot systems.

Before statewide implementation of the system, the commissioner may improve implementation of pilot systems in any regions of the state. If the commissioner approves implementation of a pilot system, then:

(1) The system must operate in conformity with department rules;

(2) The commissioner must notify entities likely to be affected by the system, including courts, law enforcement, physicians, and hospitals of establishment of the system;

(3) If a person is a patient in a state-operated mental health institute that serves the system, and the person requires involuntary care and treatment under 33-6-104, then a commitment to a state-operated mental health institute by a civil court under 33-6-104, may occur only if the community mental health center from the person's catchment area provides a sworn affidavit to the court which states that all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person;

(4) If a person is not a patient in a state-operated mental health institute and requires involuntary care and treatment in a state-operated mental health institute that serves the system, then admission or commitment under 33-6-103, or 33-6-104,is valid only if the mandatory prescreening authority provides one (1) of the certificates for each set of certificates of need required by 33-6-103(d) and (h) and 33-6-104;

(5) A state-operated mental health institute that serves the system may not admit a patient under 33-6-101, unless a physician provided by a mandatory prescreening authority within the system recommends the admission; and

(6) The system must participate in deliberations to transfer a mentally ill patient to or from its service area under 33-3-301, and must recommend transfer of a mentally ill patient from a licensed private facility in its service area to a state-operated facility or the transfer is invalid.

CHAPTER 3 GENERAL RULES APPLICABLE TO PATIENTS AND RESIDENTS

33-3-101 Right to liberty.

No person shall be deprived of his liberty on the grounds that he is, or is supposed to be, mentally ill, mentally retarded, or in need of mental treatment, except in accordance with the provisions of this title.

33-3-102 Wrongful hospitalization or admission – Instituting wrongful action – Penalties – Immunity.

(a) Any individual who:

(1) Without probable cause for believing a person to be mentally retarded or mentally ill, causes or conspires with or assists another to cause the hospitalization or admission of any such person under this title; or

(2) Causes or conspires with or assists another to cause the denial to any person of any right accorded to such person under this title;

commits a Class E felony.

(b) Any individual who without probable cause for believing a person to be mentally retarded or mentally ill executes a petition, application, or certificate pursuant to this title, by which such individual secures or attempts to secure the apprehension, detention, hospitalization, admission, or restraint of any such person, and any physician or psychologist who knowingly makes any false certificate or application pursuant to such chapters as to the mental condition of any person, commits a Class E felony.

(c) The commissioner of mental health and mental retardation or the superintendent of any hospital or developmental center or treatment resource acting pursuant to the provisions of this title shall be entitled to rely in good faith upon the representations made for admission by any individual or any certification with respect to any individual made by a licensed physician, licensed psychologist, or any court.

(d) All persons acting in good faith, reasonably and without negligence in connection with the preparation of petitions, applications, certificates or other documents or the apprehension, detention, discharge, examination, transportation or treatment of an individual under the provisions of this title shall be free from all liability, civil or criminal, by reason of such acts.

33-3-103 Furnishing false information – Misdemeanor.

It is a Class C misdemeanor for any person knowingly to furnish false information for the purpose of securing the hospitalization or admission of any individual to any public facility for the mentally ill or mentally retarded.

33-3-104 Rights of patients or residents.

The following rights of patients and residents apply, whenever appropriate, to both the mentally ill and the mentally retarded:

(1) Visitors; Mail. Every patient or resident shall be entitled to:

(A) Receive visitors during regular visiting hours;

(B) Communicate by sealed mail or otherwise with the patient's or resident's attorney, physician, minister, family, and the courts; and

(C) Receive uncensored mail from the patient's or resident's attorney or personal physician. All other incoming mail or communications may be read before being delivered to the patient or resident, if the superintendent believes such action is necessary for the medical welfare of the patient or resident who is the intended recipient. However, any mail or other communication which is not delivered to the patient or resident for whom it is intended shall be returned immediately to the sender. The superintendent of the hospital or developmental center has the right to make reasonable rules and regulations regarding visitors and visiting hours and the use of telephone and telegraph facilities;

(2) Care and Treatment. Any person who is mentally ill or mentally retarded is entitled to humane care and treatment, and, to the extent that facilities, equipment and personnel are available, to medical care and other professional services in accordance with the highest standard of accepted medical practice. The superintendent shall keep records detailing all such care and treatment received by any such person and such records shall be made available, upon that person's written authorization or that of the patient's or resident's guardian, to the patient's or resident's attorney or personal physician. Such records shall be preserved by the superintendent until such person has been discharged from the hospital or developmental center and for such additional time as the commissioner may direct, but in no event less than ten (10) years. The records may be generated in, maintained in or transferred in whole or in part to any recording medium, including an electromagnetic medium, that assures accurate preservation of the record. If a record is transferred from one medium to another, the source record may be destroyed upon determination by the superintendent that the reproduced record is true and correct and will be accurately preserved. The reproduced record is deemed to be the original record.

(3) Education and Training. Every individual shall be entitled to education and training suitable to the patient's or resident's age and attainments and capacity to learn;

(4) Restraints Restricted. No mechanical restraint, including isolation shall be applied in the care, training, or treatment of any mentally ill or mentally retarded person unless required by the patient's or resident's medical or treatment needs. The superintendent shall designate professionals whose qualifications are specified in departmental regulations who may prescribe such restraint. Such restraint shall be removed whenever the condition justifying its use no longer exists. Any use of a mechanical restraint, together with the reasons therefor, and the duration of its use, shall be made a part of the medical or habilitation record of the patient or resident;

(5) Civil Rights. No patient or resident hospitalized or admitted pursuant to this title shall, solely by reason of such hospitalization or admission, be denied the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, give informed consent to treatment, and vote, unless such patient or resident has been adjudicated incompetent by a court of competent jurisdiction and has not been restored to legal capacity. If the superintendent of the hospital or developmental center in which any such patient or resident is hospitalized or admitted is of the opinion that such patient or resident is unable to exercise any of the aforementioned rights, the superintendent shall notify immediately the patient or resident and the patient's or resident's attorney, parent, guardian, legal custodian, spouse or other nearest known adult relative of the fact, and the superintendent may file for the appointment of a limited guardian under title 34, chapter 4, part 1 and shall notify those persons as to whether the superintendent intends to do so;

(6) Expiration of Previously Imposed Restrictions. Any individual who, by reason of a judicial decree ordering that individual's hospitalization or admission entered under the laws of Tennessee prior to July 1, 1965, is considered to be mentally incompetent and is denied the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, and vote solely by reason of such decree shall, upon the expiration of one (1) year immediately following July 1, 1965, be considered to have been restored to legal capacity unless, within such one-year period, affirmative action is commenced to have such individual adjudicated mentally incompetent by a court of competent jurisdiction;

(7) Notice of Transfer Between Institutions. Whenever an individual is transferred from one (1) institution to another by order of the department of mental health and mental retardation, notice thereof shall be given, in advance when possible, by the department to:

(A) The patient or resident; and

(B) In writing by registered mail to the individual's parent, guardian, legal custodian, spouse or adult next of kin, or, if none be known, to the individual's nearest known relative or a friend whose address is known and, if the individual was hospitalized or admitted under a court order, to the court which ordered the individual's hospitalization or admission;

(8) Release Procedures Statement. Any patient or resident, and the patient's or resident's parent, guardian, legal custodian, spouse or other nearest known adult relative, shall receive, upon admission of the patient or resident to the hospital or developmental center, a written statement outlining in simple, nontechnical language all release procedures provided by this title, setting out all rights accorded to patients or residents by this title, and describing procedures provided by law for adjudication of incompetency and appointment of a guardian for the individual. The superintendent shall provide reasonable means and arrangements for assisting patients or residents in making and presenting requests for release, including petitions to the proper court;

(9) Habeas Corpus. Any patient or resident in a public or private institution for the mentally ill or mentally retarded shall be entitled to prosecute a writ of habeas corpus upon proper petition by the patient or resident or a friend to any court generally empowered to issue the writ of habeas corpus in the county in which the patient or resident is detained; and

(10) Confidential Records. (A) All applications, certificates, records, reports and all legal documents, petitions and records made or information received pursuant to this title and directly or indirectly identifying a patient or resident or former patient or resident under this title or prior law of this state shall be kept confidential and shall not be disclosed by any person except insofar as:

(i) Any of the following may consent:

(a ) The individual identified who is sixteen (16) years of age or over;

(b ) The legal guardian on behalf of the adult individual identified;

(c ) The parent, guardian or custodian of a minor; or

(d ) The executor, administrator or personal representative on behalf of a deceased patient or resident or former patient or resident;

(ii) Disclosure may be necessary to carry out the provisions of this title;

(iii) Disclosure may be necessary to assure service or care to the individual by the least drastic means that are suitable to the individual's liberty and interests; or

(iv) A court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make such disclosure would be contrary to public interest or to the detriment of either party to the proceedings.

(B) Nothing in this subdivision (10) shall prohibit disclosure, upon proper inquiry, of information as to the current medical condition of a patient or resident to any members of the family of a patient or resident or to a patient's or resident's relatives or friends. The department may promulgate rules to implement this subdivision (10), including rules on the form and content of consent and disclosure, scope of permissible disclosure, and definitions of terms. This subdivision (10) does not preclude making reports of harm or granting access to records if making reports of harm or granting access to records are expressly required by title 37, chapter 1, parts 4 and 6, and title 71, chapter 6. A violation of this subdivision (10) is a Class C misdemeanor. Court clerks shall keep separate records of adjudications of incompetence and of restoration of competence. Such records shall be open for inspection by members of the public.

(C) Nothing in this subdivision (10) shall prohibit disclosure to the law enforcement agency having jurisdiction where an offense occurred of felonious acts of bodily harm or sexual offenses that appear to have been committed on the premises of a facility whose records are made confidential by this subdivision. If the felonious act involves a sexual offense governed by title 37, chapter 1, part 6 and title 71, chapter 6, part 1, in a locality having a sex abuse crime unit, then disclosure for law enforcement investigative purposes shall be made only to that unit of the law enforcement agency. This does not limit the requirements of disclosure of reports of harm and access under subdivision (10)(B) to records required by title 37, chapter 1, parts 4 and 6 and title 71, chapter 6, part 1 for investigations by the department of human services. Permissible disclosure of a felonious act for the purpose of conducting a necessary investigation includes:

(i) The name of, and providing access to, witnesses or potential witnesses of such offense;

(ii) The name of, and providing access to, suspects or potential suspects of such offense; and

(iii) The scene of, and providing access to, where such offense occurred.

(D)(i) Notwithstanding the provisions of subdivisions (10)(A) and (B), in any case where a person is known to have been accused of physically or sexually abusing or neglecting a minor child, the minor child's record shall not be accessible to the person accused of such abuse or neglect except:

(a ) By an order of the court pursuant to subdivision (10)(A)(iv); or

(b ) Where the minor child's mental health treatment professional has determined in the course of such treatment that the release of the minor child's record to the accused person would not be harmful to the child and the accused person is the parent, guardian or custodian of the minor child.

(2) If the court permits access to the minor child's record pursuant to subdivision (10)(D)(i)(a), the court shall have jurisdiction to issue any necessary orders which shall control the access and the use of the information by the person seeking access including the issuance of injunctive relief.

33-3-105 Restraints and treatment – Treatment of physical disorders prior to admission.

(a)(1) Any patient or resident admitted to a state developmental center or state mental hospital pursuant to the provisions of 33-5-101 or 33-6-101 may be held under such restraint and given such standard treatment including surgery as may be necessary for the welfare of the patient or resident in accordance with the terms of this title. However, such treatment and surgery may be performed on such patients or residents only if the consent of the patient or resident or the parent, guardian, legal custodian, spouse, or adult next of kin is first obtained.

(2) An order of hospitalization or admission entered pursuant to 33-3-201, 33-5-305, 33-6-104 shall constitute the authority for the superintendent of a hospital or developmental center in which a patient or resident is hospitalized or admitted to give such standard treatment including surgery as may be necessary for the welfare of the patient or resident. However, such treatment and surgery may be performed on such patients and residents only if:

(A) The consent of the patient or resident or the parent, guardian, legal custodian, spouse, or adult next of kin is obtained; or

(B) If such treatment and surgery is necessary to the welfare and best interests of the patient and the procedures set out by department rules are followed for administering treatment without consent.

(3) With regard to patients who are minors, nothing in this subsection shall authorize the administration of electroconvulsive therapy or other convulsive therapies, nor shall it authorize the performance of lobotomies or other surgical procedures for intervention or alteration of a mental, emotional or behavioral disorder in violation of 33-3-201.

(b) In any admission proceeding under this title, where it appears that the person suffers from a physical disorder that requires immediate medical attention and which the developmental center, psychiatric hospital, or treatment resource cannot appropriately provide, the person first shall be taken to a physician or hospital for treatment of the medical condition. When the person has received appropriate medical attention and treatment, the person may then be transported to the appropriate facility for treatment of the person's mental condition.

33-3-106 Escape of patient or resident – Aiding and abetting escape – Supplying patient or resident with harmful substances – Receiving gifts or bribes from patients or residents – Sexual relations with female patient or resident – Penalties.

(a)(1) If any patient or resident hospitalized or admitted under court order escapes from a hospital or developmental center, after thirty (30) days' absence the person shall be dropped from the records of the institution. If afterwards the person is taken into custody, the person may be returned to the institution without further court proceedings, upon an order by the court.

(2) If any patient or resident hospitalized or admitted under court order escapes, absconds or leaves a hospital or developmental center without the knowledge, permission or consent of the hospital or developmental center, the hospital or developmental center shall immediately verbally and subsequently in writing, notify the committing court.

(3) The committing court shall be notified of the policy regarding special and weekend passes and the court must be given an opportunity to register its objection to granting such passes.

(b) Any person who:

(1) Counsels, causes, influences, aids or assists any patient or resident to escape from any state hospital or developmental center for the mentally ill or mentally retarded in which the patient or resident has been hospitalized or admitted under court order, or shall attempt to do so;

(2) Harbors or conceals any patient or resident who has escaped therefrom;

(3) Incites any patient or resident, whether within the institution or elsewhere, to hurt or injure any person, or attempts to do so; or

(4) Without the permission of the superintendent, gives or sells to any patient or resident, whether on the premises of the institution or elsewhere, knowing such person to be a patient or resident, any firearms, intoxicating drinks, drugs or any other harmful articles;
commits a Class E felony.

(c) Any hospital or developmental center employee or official who receives from any patient or resident anything of value as a gift or for a consideration commits a Class C misdemeanor.

(d) Any person who aids or abets in the commission of any of the foregoing offenses, or aids or abets in a prohibited attempt, is guilty as if such person were a principal and shall be punished as a principal.

(e) Any person, not her husband, who has sexual intercourse with a female patient or resident of a state hospital or developmental center or with a female who has been ordered by a court to be hospitalized or admitted therein, knowing her to be a patient or resident or to have been ordered hospitalized or admitted, is guilty of a Class C felony.

33-3-107 Notice to court, legal custodian and guardian or next of kin of death of patient or resident – Disposal of unclaimed property after discharge or death.

(a) Upon the death of a patient or resident hospitalized or admitted under court order in any institution under the supervision of the department of mental health and mental retardation, the superintendent of the institution shall mail written notice of the death and the cause thereof to the court which entered the order of hospitalization or admission, and the time, place, and cause of death shall be entered in the records of the case. Such notice shall be mailed within ten (10) days of the death of the patient or resident.

(b) Notice of such death shall also be given promptly to the guardian, legal custodian, or next of kin of the individual. The administrator, executor or personal representative of the deceased person, or if there is none, one (1) or more of the heirs at law or next of kin, shall be notified by registered mail of any personal property owned by the deceased and left at the institution at the time of the deceased's death. Notice of an administrator, executor or personal representative shall be directed to the probate court of the county wherein that individual is qualified to administer the estate of the deceased. Notice to the next of kin or heirs at law shall be addressed to the last known address of such person or persons.

(c) The superintendent shall thereafter keep such personal property for twelve (12) months following the date of such notice or notices, at the expiration of which time, if it has not been claimed, the superintendent shall sell or otherwise dispose of the property, with the approval of the commissioner, and deposit the proceeds from such sale or disposition in a fund, maintained under the supervision of the superintendent for the purpose of providing needy patients or residents in the institution with comforts and necessities they are unable to provide for themselves.

(d) If, after diligent search and inquiry, the name of none of the persons required to be notified in subsection (b) can be ascertained so that the required notice cannot be given, or the persons notified do not open the estate or otherwise proceed to dispose of the estate in a lawful manner, any property owned and left by any deceased patient or resident in the institution shall be kept for twelve (12) months after the death of the patient or resident and if unclaimed, be disposed of as provided in subsection (c) of this section.

(e) Upon the death of any patient or resident who was admitted voluntarily to any institution under the supervision of the department, the superintendent of the institution shall dispose of the person's property under subsections (b)- (d) as if the person were admitted under a court order. The superintendent shall notify the next of kin of the cause of death, and the time, place, and cause of death shall be entered in the records of the case.

(f) When any patient or resident is released or discharged and leaves any personal property in the institution, the superintendent shall promptly notify such former patient or resident by registered mail addressed to that person's last known address of the fact that property belonging to that person has been left at the institution. Such property shall be kept for twelve (12) months from the date of the notice and if not claimed at the expiration of that time, disposed of as provided in subsection (c) of this section.

33-3-108 Professional not to be related or to have financial interest.

IF

(1) A certificate of need for commitment to care and treatment as a patient or resident is authorized or required to be made by a physician, psychologist, or other professional under this title, AND

(2)(A) It is made by such a professional who is the spouse, parent, grandparent, brother, sister, child, aunt, uncle, nephew, or niece of the individual who is the subject of the petition, application or certificate, OR

(B) It is made by a professional who has an ownership interest in a private facility in which the individual is to be detained, THEN

(3) It shall not be considered under this title.

33-3-109 Commitment to private facility – Certificate by disinterested professional.

(a) If a person is proposed to be committed to a private facility under this title, at least one (1) of the required certificates of need shall be from a professional who is not an employee of the private facility.

(b) For purposes of this section, employment as a faculty member by a school of medicine at a university or college associated with a hospital shall not constitute employment at a private facility.

33-3-110 Certificate of need – Basis – Contents – Violation.

(a) A certificate of need for commitment to care and treatment as a patient or resident shall not be considered unless it is based on personal observation and examination of the individual made by such professional not more than three (3) days prior to the making of the certificate. Such certificate shall set forth in detail the facts and reasoning on which the opinions and conclusions are based.

(b) The execution of a certificate concerning the mental condition of an individual by a professional who has not personally observed and examined him is punishable as a violation of 33-3-102(b).

33-3-111 Informing patients of rights – Acknowledgement.

An admitting physician or the superintendent of the hospital or treatment resource shall orally inform a patient who is admitted for diagnosis, observation and treatment of a mental illness under the provisions of this section outlining in simple, non-technical language all rights accorded to patients or residents by this title. Such statement shall include those rights contained in 33-3-104 as well as the right to release. In addition, if the patient is a minor, such statement shall include those rights contained in 33-3-201. Each such statement shall also be provided to the patient in writing at the time of admittance. The patient shall sign on the line provided for the signature, acknowledging that the patient has been verbally informed of the patient's rights. The patient's signature shall be acknowledged by at least one (1) disinterested witness. Such witness shall sign in the presence of the admitting physician or supervisor and the patient. Failure to so inform any patient is a Class A misdemeanor.

33-3-112 Department officers, employees and licensees to disclose interest in mental health facilities – Conflict of interest – Penalty.

(a)(1) IF

(A) A person is an officer or employee of the department; OR

(B) A person is an officer or employee of a licensee of the department; AND

(C) The person or the person's spouse, parent, grandparent, brother, sister, or child has an ownership interest in a residential facility which is not publicly held or an ownership interest in a business which is not publicly held that owns or manages a residential facility that provides mental health or mental retardation services to persons; OR

(D) Any individual or combination of individuals named in subdivision (a)(1)(C), has an ownership interest of at least thirty-five percent (35%) in a residential facility which is publicly held that provides mental health or mental retardation services to persons; OR

(E) Any individual or combination of individuals named in subdivision (a)(1)(C), has an ownership interest of at least thirty-five percent (35%) in a business that is publicly held that owns or manages a residential facility that provides mental health or mental retardation services to persons;

(2) THEN

(A) The person must disclose the interest to the department or licensee; AND

(B) The person may not serve in a capacity of decision making or influence or responsibility for the direct referral or placement of persons to any residential facility that provides mental health or mental retardation services.

(b) If a person violates subsection (a), the commissioner shall assess a civil penalty of one thousand five hundred dollars ($1,500) per incident against such person for each violation. A penalty shall be assessed only after an informal hearing is held in the same manner as an informal hearing is held prior to the suspension of a license under 4-4-322(d). If services to a recipient of mental health or mental retardation services have been provided in violation of this section, the commissioner may:

(1) Require transfer of the recipient of services to another provider of services as soon as is reasonably practical;

(2) Authorize the recipient of services to remain with the provider of services if the commissioner determines it to be in the best interests of the recipient of services to remain with the provider of services;

(3) Restrict the referral of other recipients of services to such provider of services; or

(4) Impose such sanctions listed in subdivisions (b)(1)-(4), above, in any combination or impose any other appropriate sanctions in the discretion of the commissioner.

(c) On March 22, 1996, any officer or employee who is not in conformity with subsection (a) shall conform to its terms. After March 22, 1996, any person to whom this section applies must disclose such information before being hired or as a part of a contract entered into with a provider of mental health or mental retardation services. Failure to disclose such information shall subject the person to removal from the position held and the contract to cancellation or renegotiation.

(d) If a person is relieved of such decision making authority or responsibility under this section, the personnel records of the officer or employee shall state that the officer or employee was relieved of such authority or responsibility solely to conform to this section.

Part 2-- Provisions for Minors

33-3-201 Electroconvulsive or convulsive therapy – Lobotomies prohibited.

(a) No mental health professional, hospital, treatment resource, or other person or facility may administer electroconvulsive therapy or other form of convulsive therapy to any person under the age of eighteen (18) years except upon prior written authorization by a court based upon a hearing at which it is shown that such treatment is necessary for the minor's health or safety except for emergency treatment as set forth in subsection (g).

(b) If proceedings for the minor's commitment under 33-6-104 are pending, the hearing to determine the necessity of administering electroconvulsive therapy or other forms of convulsive therapy may be held only after adequate written notice has been given to the minor and his attorney informing them of the nature of the treatment sought and the facts upon which the claim is based that such treatment is necessary for the minor's health or safety. The hearing may either be consolidated with the hearing for the minor's commitment under 33-6-104, or may be convened at another time.

(c) If no proceedings for the minor's commitment under 33-6-104 are pending, the hearing to determine the necessity of administering electroconvulsive therapy or other forms of convulsive therapy shall be convened in the juvenile court where the minor resides or may be found upon petition of a mental health professional, hospital or treatment resource seeking authorization to administer such treatment. The petition shall be verified and shall state the nature of the treatments for which authorization is sought, and the facts upon which the petitioner relies to support his claim that such treatment is necessary for the minor's health or safety. The court shall, upon receipt of the petition, appoint counsel to defend against the petition and the petition will be served personally upon both the minor and his attorney. In no case shall the minor's attorney be a person who has previously advised the parties seeking authorization to administer electroconvulsive therapy or other forms of convulsive therapy, nor shall the attorney be a person who has previously advised the minor's parents or the parents' business.

(d) Whenever authorization is sought for the administration to a minor of electroconvulsive therapy or other forms of convulsive therapy, the court shall appoint an independent psychiatrist who shall receive reimbursement in an amount fixed by the court. No electroconvulsive therapy or other convulsive therapy may be authorized for any minor except upon the testimony of an independent psychiatrist that he has examined the minor and is of the opinion that such therapy is necessary for the minor's health or safety. The independent psychiatrist's testimony that such therapy is necessary for the minor's health or safety shall not be regarded as determinative, and the court shall consider any other evidence, including other expert testimony, offered in opposition to the authorization of such therapy.

(e) Any decision of the court under this section shall be reviewable de novo upon expedited appeal to the circuit court, and the decision of the court from which an appeal is taken shall be stayed pending disposition of the appeal in circuit court.

(f) Lobotomies or other surgical procedures for intervention or alteration of a mental, emotional or behavioral disorder shall not be performed on minors, and the courts of this state are hereby prohibited from ordering or authorizing the performance of any such procedure upon any minor.

(g)(1) Electroconvulsive or convulsive therapy may be initiated prior to a court hearing, if the petitioner files a petition with the court having jurisdiction of the minor's commitment under 33-6-104, if such a proceeding is pending; or otherwise files a petition in the juvenile court where the minor resides or may be found. The petition shall be verified by the mental health professional, hospital or treatment resource seeking authorization to administer such treatment and shall state the nature of the treatments for which authorization is sought, and the facts upon which the petitioner relies to support his claim that such treatment is necessary for the minor's health or safety. In addition, attached to the petition shall be an affidavit from a child psychiatrist, who must be certified by the American Board of Psychiatry and Neurology as a child psychiatrist, stating that:

(A) The minor is fourteen years of age or older;

(B) His life is in imminent peril;

(C) All other accepted methods of treatment have been exhausted;

(D) The minor is suffering from a psychosis or mania which has resulted in acute physical exhaustion or starvation bordering on serious collapse;

(E) Electroconvulsive or convulsive therapy is necessary to save the minor's life due to potential suicide, or to prevent irreparable injury resulting from conditions such as starvation, dehydration, or physical exhaustion bordering on serious collapse to the extent such conditions are life threatening; and

(F) There is insufficient time to complete the procedure provided by subsections (b)-(d) of this section, and therefore treatment prior to a court hearing is necessary.

(2) The affidavit must provide the specific factual, medical and clinical basis supporting the requirements of subdivisions (A)-(F) of subdivision (g)(1). The child psychiatrist must have personally examined the minor within seventy-two (72) hours of the filing of the petition. The child psychiatrist shall not be in a professional practice or association with the attending physician, nor have any direct financial interest in any private hospital in which the minor is to be detained or receive therapy. Once the petition and affidavit have been filed, electroconvulsive or convulsive therapy may be initiated, but must be discontinued immediately when any of the conditions set forth herein are no longer met.

(3) The court hearing upon a petition under this subsection must be held within seven (7) calendar days of the filing of the petition. Upon the filing of the petition the court shall appoint counsel to represent the minor at such hearings, unless the minor already has an attorney due to a pending commitment under 33-6-104. The petition shall be served personally upon both the minor and his attorney. The minor's attorney shall not be a person who has previously advised the parties seeking authorization to administer electroconvulsive therapy or other forms of convulsive therapy, nor shall the attorney be a person who has previously advised the minor's parents or the parents' business. The child psychiatrist whose affidavit accompanied the petition shall be a witness at the hearing, and his testimony may be used in place of a court-appointed independent psychiatrist. The child psychiatrist's testimony shall not be regarded as conclusive, and the court shall consider any other evidence, including other expert testimony, offered in opposition to the authorization of such therapy.

(4) At the hearing the court shall determine:

(A) Whether retrospectively all of the standards for initiating therapy prior to a court hearing under this subsection were fully complied with, and if not, which standards were not met; and

(B) Whether prospectively electroconvulsive therapy or other forms of convulsive therapy are necessary for the minor's health or safety.

(5) Nothing in this subsection shall be construed to modify or alter subsections (e), (f) and (h) of this section.

(h) A minor may not waive any right created by this section, nor may any such right be waived by any other person acting on the minor's behalf.

(i) Under this section, the attorney for the petitioner, the attorney appointed by the court to defend the minor, and the psychiatrist who testifies at the hearing, whether he is the board-certified child psychiatrist or the court-appointed independent psychiatrist, shall be reimbursed by the department of mental health and mental retardation in an amount fixed by the court. All court costs under this section shall be paid by the department of mental health and mental retardation.

33-3-202 Status, services and facilities for autistic persons.

(a) Autism is hereby recognized as a developmental disability requiring special treatment by mental health and mental retardation professionals. The commissioner of mental health and mental retardation shall recognize that separate status, appropriately diagnose and plan and develop appropriate services to address the needs of autistic persons.

(b) In developing such services the commissioner of mental health and mental retardation shall establish in Nashville a residential group home for autistic adolescents which will provide services specific to the individual needs through the development of an individual plan of service.

33-3-203 Temporary legal custody of minors – Commitment, treatment and discharge.

(a) IF AND ONLY IF

(1) A minor is the subject of a proceeding under title 37, chapter 1, AND

(2) The minor is mentally ill, AND

(3) The minor needs care, training, or treatment because of the mental illness, AND

(4) All available less drastic alternatives to committing the minor to the temporary legal custody of the department of children's services are unsuitable to meet the minor's needs for care, training, or treatment for the mental illness, THEN

(5) A juvenile court may commit the minor to the temporary legal custody of the department in proceedings conducted in conformity with §§ 33-3-602 – 33-3-608 and §§ 33-3-610 – 33-3-619, 33-3-623 and 33-104(e)-(h), to meet the minor's needs for care, training, or treatment for the mental illness.

(b) IF

(1) A juvenile court commits a minor to the temporary legal custody of the department under subsection (a), THEN

(2) The department shall provide the necessary care, training, or treatment for the minor in the least drastic alternative way which is available and suitable to meet the minor's needs, AND

(3) Community mental health centers and community programs which receive grants or contracts from the department to provide such services to minors shall, at the direction of the department, provide the community-based services necessary to meet the minor's needs for treatment in the least drastic alternative to hospitalization, AND

(4) IF AND ONLY IF

(A) Placing the minor in inpatient care in a hospital or treatment resource is the least drastic alternative way which is available to the department and is suitable to meet the minor's needs, THEN

(B) The department shall apply for the minor's admission to a hospital or treatment resource under § 33-6-101 or § 33-6-103 or shall initiate proceedings under § 33-6-104.

(c) If an evaluation under § 37-1-128(d) shows that a minor may be subject to commitment to the temporary legal custody of the department, the juvenile court may direct any person it determines to be suitable for the purpose to file a complaint under this section.

(d) If a minor no longer meets the standards under which the minor was hospitalized or admitted to a treatment resource under subsection (b)(4), the minor shall be discharged under § 33-6-109, and the minor shall remain in the custody of the department until the department's custody is terminated under this section.

(e) If a minor no longer meets the standards under which the minor was committed to the custody of the department under subsection (a), the department shall make a full report of the status of the minor to the committing court. If the committing court objects to the termination of the department's custody, the court shall set a hearing on the matter within fifteen (15) days of the date of the report, with such hearing to be held at the earliest possible date. The department shall retain custody pending the outcome of the hearing. If the court does not set a hearing, the department's custody terminates at the end of the fifteenth day after the date of the report unless the court has approved an earlier termination.

(f) If the court sets a hearing to review the status of the minor under subsection (e), the minor shall have the same rights as in the original commitment proceeding under §§ 33-3-605, 33-3-608, 33-3-610 – 33-3-616 and 33-3-623. If and only if the court finds on the basis of clear, unequivocal, and convincing evidence that the minor is subject to commitment to the custody of the department under subsection (a), the court may order that the minor remain in the temporary legal custody of the department. If the court does not so find, the department's custody terminates at the end of the hearing.

(g) Proceedings under this section may be held only by judges who are lawyers or by referees.

(h) For purposes of this section only, "department" means the department of children's services.

Part 3-- Transfers of Patients and Residents

33-3-301 Transfer between facilities.

(a) The commissioner may authorize the transfer of a person who is lawfully in a facility of the department of mental health and mental retardation to other departmental facilities or to a private facility under this section. The commissioner shall give due consideration to the relationship of the person to family, guardian, and friends so as to maintain relationships and encourage visitation beneficial to the person. If a person whose transfer is authorized has been admitted or committed by court order, a certified copy of the court order shall be sent to the institution to which the person is transferred.

(b)(1) If the commissioner determines:

(A) That a person could more properly be cared for and treated in a facility other than the one in which such person is a resident or patient; and

(B) That the transfer is in the person's best interest,
the commissioner may authorize the person to be transferred for an indefinite period to another departmental facility. The person may be transferred to a secure facility if and only if, in addition, the commissioner determines that the person is substantially likely to injure such person or others if not treated in a secure facility. Notwithstanding any other provisions of this section, any transfer to a developmental center authorized under this section shall not exceed forty-five (45) days unless such transfer complies with departmental rules.

(2) Before such a transfer is authorized, the person shall be given a physical examination by a licensed physician and a mental assessment and evaluation by a qualified professional, and complete written reports of the examination, assessment, and evaluation shall be forwarded to the commissioner by the superintendent who recommends the transfer. The reports and the superintendent's recommendation shall each include a certification that the transfer is in the person's best interests and a statement of the reasons for the conclusion.

(3) The superintendent, upon recommending such a transfer, shall immediately give personal notice of the recommendation by telephone or otherwise to the person's spouse or parent or adult child and legal guardian, if any, and to the person. No person may be transferred less than twenty-four (24) hours after the notices required by this subdivision have been given, unless the person's spouse or parent or adult child or legal guardian, if any, have agreed to the transfer or unless a diligent attempt by the superintendent to give notice is unsuccessful.

(4) The commissioner, upon authorizing such a transfer, shall immediately give to the person's spouse or parent or adult child and legal guardian, if any, and to the person written notice of the decision and a complaint form for review of transfer in the circuit court under part 7 of this chapter. The person may then be transferred immediately.

(c)(1) If the commissioner determines, upon the recommendation of the superintendent who requests a transfer,

(A) that a person requires emergency care and treatment that cannot be provided by the transferring facility and

(B) that the transfer is in the person's best interest, the commissioner may authorize the person to be transferred immediately to another departmental facility. The person may be transferred to a secure facility if and only if, in addition, the commissioner determines that the person is substantially likely to injure such person or others if not treated in a secure facility.

(2) If the commissioner approves the emergency transfer, the commissioner shall so notify the superintendents of the transferring and receiving facilities. The superintendent of the transferring facility shall then have the person transferred immediately.

(3) Within seventy-two (72) hours after the transfer, the superintendent of the receiving facility shall determine whether the transfer was appropriate. If the superintendent determines that the transfer was not appropriate, the superintendent shall return the person to the sending facility. If the superintendent determines that the transfer was appropriate, the superintendent shall immediately give the resident or patient written notice of such decision.

(4) Such a transfer shall not exceed thirty (30) days, at which time the superintendent shall return the person to the facility from which such person came.

(5) If the superintendent of the receiving facility determines that the person requires treatment beyond the thirty (30) day period, the superintendent shall so notify the person in writing and apply for indeterminate transfer under subsection (b). The person shall remain in the receiving facility unless the commissioner denies the application for transfer. If the commissioner denies the application, the superintendent of the receiving facility shall have the person transferred to the sending facility immediately.

(d) A person may be transferred from a state facility to a licensed private facility or from a licensed private facility to a state facility, upon proper application, approval of the sending and receiving facilities, and written notice to the committing court, if the person is committed. Once transferred, the person is lawfully admitted to the receiving facility, and such facility may retain the person under the authority of the admission or order applicable to the facility from which such person was transferred.

33-3-302 Transfer to veteran’s administration facilities.

Upon receipt of a certificate of the veterans' administration of the United States that facilities are available for the care or treatment of any individual heretofore ordered hospitalized pursuant to § 33-6-104 in any hospital for the care or treatment of the mentally ill and that such individual is eligible for care or treatment in a veterans' hospital or institution of such agency located in this state, the commissioner may cause his transfer to such veterans' hospital or institution of the United States for hospitalization in this state. No person shall be transferred to a veterans' hospital or institution of the United States if he is confined pursuant to conviction of a criminal offense, or if he has been acquitted of the charge solely on the ground of mental illness unless prior to the transfer the court originally ordering confinement of such person enters an order for the transfer after appropriate motion and hearing. Any person transferred to a veterans' hospital or institution of the United States shall be considered to be hospitalized by the veterans' administration of the United States pursuant to the original order of hospitalization.

33-3-303 Transfer of nonresidents.

(a) The commissioner is authorized to provide for and to authorize the transportation and transfer from Tennessee to their respective states of residence mental patients or residents who are residents of states not party to the Interstate Compact on Mental Health, if such nonparty states have reciprocal statutes conferring similar authority.

(b)(1) Subject to the availability of suitable accommodations, such nonresident patient or resident may be hospitalized or admitted under the provisions of this title for observation, diagnosis and treatment, but in no case for a period longer than thirty (30) days, pending his transfer to his state of residence.

(2) However, the commissioner may at his discretion, designate certain nonresident mentally ill patients or residents, not to exceed a total of one hundred (100), as "commissioner's patients or residents," such patients or residents to be persons who because of their nonresidency in Tennessee are not entitled to hospitalization or admission in this state, but who, having families residing in Tennessee, may be eligible for psychiatric hospitalization or admission, care and treatment for compassionate reasons.

Part 4-- Transfers From Department of Correction

33-3-401 Mentally ill or retarded minors in youth development centers.

(a) If the superintendent of a youth development center of the department of children's services determines, on the basis of a written report of a licensed physician or licensed psychologist designated as a health service provider, that a minor in that youth development center is:

(1) Mentally ill or mentally retarded; and

(2) In need of residential care and treatment for that condition which cannot be provided by the department of children's services and which can be provided at a residential facility of the department of mental health and mental retardation; the superintendent of the youth development center shall order the minor's transfer and shall notify the person of the decision and the reason therefor in writing not less than twenty-four (24) hours in advance of the proposed transfer.

(b)(1) If the person does not object to the transfer within twenty-four (24) hours of the notification of the proposed transfer, the person shall be transferred to the appropriate residential program of the department of mental health and mental retardation which is designated by the commissioner of mental health and mental retardation as having available suitable accommodations. The department of children's services shall retain legal custody of the minor after the minor has been transferred to an appropriate residential program of the department of mental health and mental retardation.

(2) If the person does object to the transfer within twenty-four (24) hours of the notification of the proposed transfer, the superintendent of the youth development center shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter, and the person shall remain in the youth development center pending the decision of the transfer committee.

33-3-402 Mentally ill or retarded adult inmates.

(a) If the director of an institution of the department of correction determines, on the basis of a written report of a licensed physician or a licensed clinical psychologist, that an adult in the director's custody is:

(1) Mentally ill or mentally retarded; and

(2) In need of residential care and treatment for that condition which cannot be provided at an appropriate institution of the department of correction and which can be provided at an appropriate residential program of the department of mental health and mental retardation;

the director shall order the person's transfer and shall notify the person of the decision and the reasons therefor in writing not less than twenty-four (24) hours in advance of the proposed transfer.

(b)(1) If the person is competent and waives in writing the right to a transfer hearing, such person shall be transferred to the custody of the commissioner at a secure facility which is designated by the commissioner as having available suitable accommodations.

(2) If the person does not so waive the right to a hearing, the director shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter, and the person shall remain in the institution of the department of correction pending the decision of the transfer committee.

33-3-403 Emergency residential care and treatment.

(a) If the director of an institution of the department of correction determines, on the basis of a written report of a licensed physician or a licensed psychologist designated as a health service provider, that a person in the director's custody is:

(1) Mentally ill; and

(2) In need of emergency residential care and treatment for that condition which cannot be provided at an appropriate institution of the department of correction and which can be provided at an appropriate residential program of the department of mental health and mental retardation;

the director shall immediately have the person transferred to the custody of the commissioner at a facility designated by the commissioner.

(b) When a person is transferred from the department of correction to the department of mental health and mental retardation under this section, the superintendent of the receiving facility shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter unless the person is returned to the department of correction before the scheduled hearing date.

33-3-404 Transfer committees – Appointment of members.

A transfer committee consists of five (5) persons. If the person to be transferred is a child, as that term is defined in § 37-1-102, then the commissioner of children's services shall appoint two (2) members of the committee, neither of whom may be the transferring superintendent. If the person to be transferred is an adult, then the commissioner of correction shall appoint two (2) members of the committee, neither of whom may be the transferring director. The commissioner of mental health and mental retardation shall appoint three (3) members to review transfers of adults and two (2) members to review transfers of minors. The executive director of the Tennessee children's services commission or the director's designee shall be a member of a transfer committee which reviews transfers of minors. The committee members shall serve at the pleasure of the appointing commissioners. The commissioners may appoint alternate committee members.

33-3-405 Transfer committee – Chair – Vice Chair – Voting – Hearings – Rights of transferees – Evidence.

(a) The committee may elect a chair and a vice chair. The committee shall act by majority vote. No member of the committee is disqualified to participate in a hearing by virtue of prior knowledge of the case. The chair may postpone the hearing for a reasonable time upon request of the person whose transfer is proposed to permit that person to obtain counsel and witnesses. In the hearing, the committee shall receive all relevant evidence. The transferee shall be permitted to speak on such person's own behalf and by counsel and to present witnesses.

(b) Transfer committee proceedings under this part are not governed by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

33-3-406 Approval or disapproval of transfer.

(a) If the committee determines that the transfer meets the standards for a transfer under this part, it shall approve the transfer. The chair shall immediately give the person written notice of the committee's decision and a summary of the factual basis for the decision and a complaint form for review of the transfer in the circuit court under part 7 of this chapter.
(b) If the transfer committee determines that the transfer does not meet the standards for a transfer under this part, it shall disapprove the transfer, and if the person has already been transferred, shall order the person returned to the transferring facility. The chair shall immediately give the person written notice of the committee's decision and a summary of the factual basis for the decision.

33-3-407 When person may be transferred.

The person shall be transferred five (5) days after the receipt of the committee's notice if such person has not filed a complaint under part 7 of this chapter. The person may be transferred immediately after receipt of the notice if such person is competent and consents in writing to the transfer.

33-3-408 Determination of appropriateness of transfer.

(a) Within five (5) days, excluding Saturdays, Sundays, and legal holidays, after any transfer made without objection by the transferee under § 33-3-401 or § 33-3-402, or any transfer under § 33-3-403, the superintendent of the receiving facility of the department of mental health and mental retardation shall determine whether the transfer was appropriate under this part. If the transfer was based on mental illness, the superintendent's decision shall be based on the advice of a licensed physician. If the transfer was based on mental retardation, the superintendent's decision shall be based on the advice of a licensed physician or a licensed clinical psychologist.

(b)(1) If the superintendent determines that the transfer of an adult inmate was not appropriate, the superintendent shall immediately transfer the person back to the custody of the department of correction.

(2) If the superintendent of the receiving department of mental health and mental retardation facility determines that the transfer of a minor offender was not appropriate, the superintendent shall immediately transfer the minor back to the youth development center or other appropriate program as designated by the commissioner of children's services.

(3) If the superintendent determines that the transfer was appropriate, the superintendent shall immediately give the person written notice of the decision.

33-3-409 Return of transferee from public facility.

(a) If the superintendent of a receiving facility of the department of mental health and mental retardation or, upon approval by the commissioner of the department of mental health and mental retardation, the superintendent of a private facility which operates a program of the department of mental health and mental retardation determines more than five (5) days, excluding Saturdays, Sundays, and legal holidays, after a person has been transferred that a person no longer meets the standards for a transfer under this part or that residential care and treatment in the facility is no longer advisable or beneficial, the superintendent shall order the person's return to the department of correction or the department of children's services.

(b) The superintendent shall notify the person of the decision in writing not less than seventy-two (72) hours in advance of the proposed transfer. If the person does not object within seventy-two (72) hours of the notice to the proposed return, the person shall be returned to the department of correction or the department of children's services. If the person objects within seventy-two (72) hours of the notice, the superintendent shall convene a transfer committee to review the decision not less than seven (7) days nor more than fourteen (14) days thereafter. The person shall remain at the facility pending the decision of the transfer committee.

(c) If the transfer committee determines that the person no longer meets the standards for a transfer under this part or that residential care and treatment in the facility is no longer advisable or beneficial, it shall approve the transfer.

(d) The decision of a transfer committee approving or disapproving a transfer under this section is final. The judicial remedy and procedures under part 7 of this chapter do not apply to the transfer committee decision.

33-3-410 Return of transferee from private facility.

(a) If the superintendent of a private facility which operates a program of the department of mental health and mental retardation determines that residential care and treatment of a transferee in the facility is no longer advisable or beneficial, the superintendent shall notify the transferee and the commissioner of the department of mental health and mental retardation of the determination and of the basis for it.

(b) If the commissioner, after receipt of the notice, determines that an emergency exists and that the determination appears to be correct, the commissioner shall order the transfer immediately to a facility of the department. Within seven (7) days after the transfer, the commissioner shall have a transfer committee composed only of three (3) persons appointed by the commissioner hold a hearing to determine whether residential care and treatment of a transferee in the transferring facility is no longer advisable or beneficial. If the committee determines that the superintendent was correct, it shall approve the transfer. Otherwise, the committee shall order the person returned to the transferring facility or to another appropriate facility.

(c) If the commissioner, after receipt of the notice, determines that an emergency does not exist and that the determination appears to be correct, the commissioner shall have a transfer committee composed only of three (3) persons appointed by the commissioner hold a hearing not less than seven (7) nor more than fourteen (14) days after receipt of the notice to determine whether residential care and treatment of a transferee in the transferring facility is no longer advisable or beneficial. If the committee determines that the superintendent was correct, it shall approve the transfer. Otherwise, the committee shall disapprove the transfer. The person shall remain in the transferring facility until the committee has made its determination.

33-3-411 Runaways – Custody.

(a) If an adult transferee runs away from a department of mental health and mental retardation institution or a program of the department which is operated by a private contractor for the department and is taken into custody within thirty (30) days after running away, the transferee shall be returned to the custody of the commissioner at a facility designated by the commissioner. If an adult transferee runs away from such an institution or program and is taken into custody more than thirty (30) days after running away, the transferee shall be returned to the custody of the commissioner of correction at a facility of the department of correction designated by the commissioner of correction.

(b) If a minor transferee runs away from a department of mental health and mental retardation institution or a program of the department which is operated by a private contractor for the department and is taken into custody within thirty (30) days after running away, the transferee shall be returned to a facility designated by the commissioner of mental health and mental retardation. If a minor transferee runs away from such an institution or program and is taken into custody more than thirty (30) days after running away, the transferee shall be returned to the youth development center or other appropriate program as designated by the commissioner of children's services.

33-3-412 Emergency residential care and treatment for minors in youth development centers.

(a) If the superintendent of a youth development center of the department of children's services determines, on the basis of a written report of a licensed physician or a licensed psychologist designated as a health service provider, that a minor in that youth development center is:

(1) Mentally ill; and

(2) In need of emergency residential care and treatment for that condition which cannot be provided at the youth development center and which can be provided by an appropriate residential program of the department of mental health and mental retardation; the superintendent of the youth development center shall immediately have the minor transferred to a facility of the department of mental health and mental retardation designated by the commissioner of the department of mental health and mental retardation.

(b) When a minor in the custody of the department of children's services is transferred to a facility of the department of mental health and mental retardation under this section, the superintendent of the receiving facility shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter, unless the person is returned to the youth development center or other appropriate program of the department of children's services before the scheduled hearing date.

Part 5-- Judicial Procedures Generally

33-3-501 Patient or resident not released during pendency of proceedings – Exceptions.

(a) Notwithstanding any other provisions of this title, no patient or resident with respect to whom proceedings for hospitalization or admission under a court order have been commenced shall be released or discharged during the pendency of such proceedings, unless ordered by the court upon application of the patient or resident or the patient's or resident's parent, guardian, legal custodian, spouse or adult next of kin, or upon the report of the superintendent that the patient or resident may be discharged with safety to such patient or resident and to others.

(b) This provision does not limit the duties to release residents and patients imposed by §§ 33-5-101, 33-6-101 and 33-6-103.

33-3-502 Record of proceedings – Copy of court order with patient’s or resident’s history to hospital or developmental center.

(a) In all judicial proceedings pursuant to this title the clerk of the court wherein such proceedings are held shall keep a careful and accurate record of the proceedings in a proper book provided for that purpose.

(b)(1) Whenever, in a judicial proceeding pursuant to this title, a person has been ordered hospitalized or admitted, the clerk of the court shall immediately communicate with the superintendent of the hospital or developmental center, informing him of the action of the court.

(2) A copy of the court order shall be forwarded to the hospital or developmental center, along with a personal and family history of the patient or resident which the clerk shall complete, and any other forms or documents required by regulations of the commissioner of mental health and mental retardation.

(3) The department of mental health and mental retardation shall furnish a supply of all necessary forms to the clerks of the various courts from time to time as needed.

(c) The clerk may communicate with the superintendent of the hospital or developmental center by telephone or telegraph, which shall be included in the costs and expenses of the case.

33-3-503 Costs of proceedings.

(a) The reasonable costs necessarily incurred in judicial proceedings under this title shall be paid by the subject of the proceedings or the subject's estate or by the subject's responsible relatives and shall be a charge upon the estate or estates of such persons liable.

(b) The reasonable costs necessarily incurred in judicial proceedings filed by the superintendent of a facility of the department to have a guardian appointed for a person under the limited guardianship law, compiled in title 34, chapter 4, part 1, shall be paid by the subject of the proceedings in conformity with that law.

(c)(1) If a subject of proceedings under this title is indigent, and does not have responsible relatives, able to pay such costs, or, if a subject of limited guardianship proceedings filed by the superintendent of a facility of the department is indigent under the limited guardianship law, compiled in title 34, chapter 4, part 1, the state shall pay such costs.

(2) For this purpose, the supreme court shall prescribe by rule the nature of costs for which reimbursement may be allowed, and such limitations on and conditions for such reimbursement of costs as it deems appropriate in the public interest, subject to the provisions of this section. Such rules shall also specify the form and content of applications for reimbursement of costs to be filed under this section. No reimbursement to an attorney under this subsection shall exceed one hundred dollars ($100) for each day of in-court proceedings, with a maximum compensation for any one (1) proceeding of five hundred dollars ($500). The administrative director of the courts shall administer the provisions of this subsection and rules promulgated hereunder, and shall audit and review all applications for reimbursement of costs. Upon finding payment to be in order, the administrative director of the courts shall process the payment thereof out of money appropriated for that purpose.

(d) In any case where the subject of the proceedings is judicially determined not to be involuntarily hospitalized, committed, or transferred, the costs may be taxed against the person who seeks hospitalization, commitment, or transfer of the subject of the proceedings.

(e) Those costs incurred by the state in providing legal counsel shall be minimized insofar as is possible and practicable by the appointment by the court of counsel from any legal aid or legal services group functioning in the county in which the proceedings are held if such group is supported in whole or in part from federal, state, county, or municipal moneys. Costs incurred by the state in providing medical evaluations in all proceedings to which this section applies shall be minimized insofar as is possible and practicable by the appointment of physicians employed by the department.

(f) The court may require any petitioner to file an undertaking with surety to be approved by the court in such amount as the court may consider proper, to insure the payment of costs and expenses and to save harmless the respondent by reason of costs incurred, including attorney's fees, if any, and damages suffered by the respondent as a result of any such action.

(g) Witnesses subpoenaed to appear in proceedings held pursuant to this title shall be paid fees and mileage as provided by law for witnesses generally.

33-3-504 Physician, psychologist, or other person, as witness.

A physician, or psychologist, or person designated by the commissioner under § 33-6-103(f)(2), who makes an application or conducts an examination under this title is a competent and compellable witness at any judicial proceeding conducted under it.

Part 6-- Judicial Procedures for Commitment

33-3-601 Application of part – Commitment where community-based system approved.

(a) This part governs only proceedings under commitment statutes which designate their use.

(b) If the commissioner has approved implementation of a community-based system under chapter 2, part 6 of this title, for a region of the state and has notified entities likely to be affected by its implementation, then the following conditions apply with respect to involuntary hospitalization of mentally ill persons:

(1) If a person is a patient in a state-operated mental health institute that serves the system, and the person requires involuntary care and treatment under § 33-6-104, then a commitment to a state-operated mental health institute by a civil court under § 33-6-104, may occur only if the community mental health center from the person's catchment area provides a sworn affidavit to the court which states that all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person; and

(2) If a person is not a patient in a state-operated mental health institute and requires involuntary care and treatment in a state-operated mental health institute that serves the system, then admission or commitment under § 33-6-103 or § 33-6-104, is valid only if the mandatory prescreening authority for the system provides one (1) of the certificates for each set of certificates of need required by §§ 33-6-103(d) and (h) and 33-6-104.

33-3-602 Contents of complaint for commitment.

A complaint for commitment shall be sworn and shall show that the defendant is subject to involuntary care and treatment under the commitment statute on which the complaint is based and shall be accompanied either by a sworn statement by the plaintiff that the defendant has refused to be examined by certifying professionals or by certificates of need as required by the commitment statute showing:

(1) That the certifying professionals have examined the defendant within three (3) days of the date of the certificate;

(2) That they are of the opinion that the defendant is subject to involuntary care and treatment under the commitment statute; and

(3) The factual foundation for their conclusions on each item of the commitment statute.

33-3-603 Jurisdiction and venue.

(a) The complaint may be filed in a county in which the defendant resides or may be found. If the defendant is in a developmental center, hospital, or treatment resource, the complaint shall be filed where the individual is, and jurisdiction of the proceedings may be transferred for good cause to the court of residence. This venue requirement does not apply to complaints filed in accordance with § 33-7-301 or § 33-7-303.

(b) Except as otherwise expressly provided in this title, only the following courts have jurisdiction over the complaint:

(1) Chancery court;

(2) Circuit court;

(3) Juvenile courts in proceedings held by judges who are lawyers or by referees;

(4) Probate court in counties having a population of more than four hundred thousand (400,000) according to the 1980 federal census or any subsequent federal census; and

(5) Court of general sessions in counties having a metropolitan form of government and having a population of more than four hundred thousand (400,000) according to the 1990 federal census or any subsequent federal census; provided, that the jurisdiction conferred by this subdivision is conferred only for petitions concerning mandatory outpatient treatment.

33-3-605 Service on defendant.

Upon receipt of a complaint, the clerk shall have a copy of the complaint with a notice of the time and place of the hearing, the defendant's right to counsel, and the standards for commitment which apply to the proceeding served on the defendant by personal service if the person is at liberty or by mail if the person is not at liberty and shall send a copy by mail to the defendant's attorney, the head of any institution or treatment resource in which the defendant is and to the defendant's guardian or legal custodian, if any, and to the spouse, parent, or adult next of kin if there is no guardian. If mailing addresses are unknown, notice may be given by any other reasonable means. When a proceeding is instituted under § 33-3-203, the clerk shall also send a copy of the complaint and the notice to the department of mental health and mental retardation by mailing the same to the superintendent of the state mental health institute in the court's region.

33-3-606 Time for hearing.

The hearing shall be held as soon as possible but not more than twenty (20) days after the complaint was filed except that the court may continue the hearing for up to ten (10) days for good cause and may continue the hearing for as long as necessary to impanel a jury if the defendant demands a jury trial.

33-3-607 Examination of defendant – Detention and release.

If the complaint includes or is accompanied by a sworn statement by the plaintiff that the defendant has refused to be examined by certifying professionals and the court finds that probable cause exists to believe that the defendant is subject to involuntary care and treatment and has refused to be examined by a certifying professional, the court shall order a law enforcement officer to take the defendant into custody for an examination by two (2) certifying professionals who meet the requirements of the commitment statute. The defendant may be detained for the period required to complete the examinations, but not more than forty-eight (48) hours. Upon completion of the examinations, the individual shall be released, and the certifying professionals shall report their findings to the court. For good cause the court may order further examination, including independent examination, as to the mental condition of the individual and may continue the hearing until the report of the examination is made to the court.

33-3-608 Attorney – Notification of representation – Appointment by court.

The defendant's attorney shall notify the court of the representation immediately after accepting it. If the defendant does not employ an attorney, the court shall appoint an attorney to represent the defendant not less than five (5) days in advance of the hearing. An attorney representing the defendant shall not serve as guardian ad litem. If the court determines that the defendant is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the defendant's guardian ad litem.

33-3-609 Jury trial.

Either party may demand a jury trial on the issues.

33-3-610 Place of hearing.

The hearing shall be conducted in a place where the court is usually held or in a physical setting not likely to have a harmful effect on the mental condition of the defendant. No hearing shall be conducted in a jail or other custodial facility for the detention of individuals charged with or convicted of criminal offenses. The court shall determine the place of the hearing and may exclude the public from the hearing on motion of the defendant if the interests of the defendant and the public would best be served by such exclusion.

33-3-611 Transportation to hearing.

The head of a facility in which the defendant is found shall arrange for suitable transportation of the individual to the court where the hearing is to be held except that the sheriff shall provide transportation if the defendant has been committed in connection with criminal charges.

33-3-612 Evidence – Witnesses – Continuances – Presence or exclusion of defendant.

(a) The court shall give the defendant, the plaintiff, legal custodian, and all other persons to whom notice is required to be given an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses.

(b) The defendant shall be present at the hearing unless the defendant waives such presence in writing. Notwithstanding any provision to the contrary in this title, if the defendant's attorney shows that the defendant's physical health would be endangered by being at the hearing, the court may order a continuance until such risk is terminated, and the defendant shall not be discharged during such continuance unless the hospital determines that the defendant no longer meets the commitment standards applicable in the hearing which has been continued. If the court determines that the defendant's conduct at the hearing is so violent or otherwise disruptive that it creates a serious risk of harm to the defendant or others at the hearing or so disrupts the proceedings that they cannot be conducted in a proper manner, the court may order the defendant restrained or excluded to the extent necessary to the proper conduct of the proceedings. If the defendant is not present at or is excluded from the hearing, the court shall make a written fact finding as to why the hearing is held in defendant's absence.

33-3-613 Conduct of hearing.

The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure.

33-3-614 Names of examining professionals – Availability to defendant.

If the names of examining professionals who certified the individual's need for care and treatment did not accompany the complaint, they shall be made available to the defendant and counsel prior to the hearing.

33-3-615 Testimony of professionals – Depositions or affidavits.

(a) The testimony of a certifying professional may be made by deposition or affidavit only with the consent of the defendant's counsel. If such testimony is given by deposition or affidavit, the court shall make a specific finding of fact that the defendant or the defendant's counsel has consented, and the defendant's right of cross-examination of the certifying professional shall be preserved.

(b) If consent is not given for testimony by deposition or affidavit, a professional who would be qualified as a certifying professional under the commitment statute may testify instead of a certifying professional if the person has examined the defendant within ten (10) days of the hearing, and the person shall testify as to each point of the commitment statute.

33-3-616 Place of detention.

No defendant shall be detained at a jail or other custodial facility for the detention of individuals charged with or convicted of criminal offenses, unless the defendant is under arrest for the commission of a crime.

33-3-617 Requisites for commitment.

IF AND ONLY IF

(1) the certificates required by law have been filed with the court showing the need for involuntary care and treatment, AND

(2) the court finds on the basis of clear, unequivocal and convincing evidence that defendant is subject to involuntary care and treatment under the statute under which the commitment is sought, THEN

(3) the court shall commit the person under the commitment statute on which the complaint is based.

33-3-618 Dismissal of proceedings – Release of defendant.

(a) If the court does not commit the defendant to involuntary care and treatment, the court shall enter an order dismissing the proceedings for involuntary care and treatment.

(b) If the defendant is being held involuntarily under this title, the court shall order the immediate release of the defendant unless the defendant is in the custody of the head of a facility under another law or is being held on charges of the commission of a criminal offense or of juvenile delinquency.

33-3-619 Disclosure of information to treating facility.

If a commitment to involuntary care and treatment is entered, the certifying professionals shall disclose to the hospital or treatment resource or mental retardation facility which admits the person on its request such information as they may have as to the history of the case, including the diagnosis or nature of the mental condition, its duration, former treatment of the defendant, and all other particulars relating to the defendant's condition which may aid the facility in providing appropriate care and treatment.

33-3-623 Appeals.

Appeals from proceedings for involuntary care and treatment shall be taken under the general law governing appeals.

Part 7-- Judicial Procedures for Review of Transfers

33-3-701 Commencement of proceedings.

Judicial proceedings for the determination of whether a person may be transferred to a facility or continues to be eligible for treatment in a facility to which that person was transferred under part 3 or 4 of this chapter, may be commenced by filing a complaint in circuit court where the receiving department of mental health and mental retardation facility is located. The person or a parent, guardian, legal custodian, spouse or responsible adult relative of the person may initiate such proceedings.

33-3-702 Notice of complaint and hearing.

Upon receipt of a complaint the clerk shall mail notice of the filing and of the time and place of the hearing to the transferee and the plaintiff and shall mail such notice and a copy of the complaint to the superintendents of the transferring facility and of the receiving facility and to the legal custodian. If mailing addresses are unknown, notice may be given by any other reasonable means.

33-3-703 When hearings held – Continuances.

The hearing shall be held as soon as possible after the complaint was filed. At the request of counsel for the transferee the hearing shall be continued for up to ten (10) days for preparation of the case.

33-3-704 Transferee’s attorney.

The transferee's attorney shall notify the court of the representation immediately after accepting it. If the transferee or others on the transferee's behalf do not employ an attorney for the transferee, the court shall appoint an attorney to represent the transferee. An attorney representing the transferee shall not serve as guardian ad litem. If the court determines that the transferee is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the transferee's guardian ad litem.

33-3-705 Jury trial.

Either party may demand a jury trial on the issues.

33-3-706 Place of hearings – Exclusion of public.

The hearing shall be conducted in a place where the court is usually held or in a physical setting not likely to have a harmful effect on the mental condition of the transferee. No hearing shall be conducted in a jail or other custodial facility for the detention of individuals charged with or convicted of criminal offenses unless the transferee is being held in connection with such offenses. The court shall determine the place of the hearing and may exclude the public from the hearing on motion of the transferee if the interests of the transferee and the public would best be served by such exclusion.

33-3-707 Hearings – Parties – Evidence – Witnesses – Conduct.

(a) The court shall give the plaintiff, the transferee, and all other persons to whom notice is required to be given an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses.

(b) The transferee shall be present at the hearing unless the transferee waives such presence in writing. Notwithstanding any provision to the contrary in this title, if the transferee's attorney shows that the transferee's physical health would be endangered by being at the hearing, the court may order a continuance until such risk is terminated. If the court determines that the transferee's conduct at the hearing is so violent or otherwise disruptive that it creates a serious risk of harm to the transferee or others at the hearing or so disrupts the proceedings that they cannot be conducted in a proper manner, the court may order the transferee restrained or excluded to the extent necessary to the proper conduct of the proceedings. If the transferee is not present at or is excluded from the hearing, the court shall make a written fact finding as to why the hearing is held in the transferee's absence.

33-3-708 Hearings informal.

The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure.

33-3-709 Testimony of examining professionals – Depositions and affidavits.

The testimony of an examining professional may be made by deposition or affidavit only with the consent of the transferee's counsel. If such testimony is given by deposition or affidavit, the court shall make a specific finding of fact that the transferee's counsel has consented, and the transferee's right of cross-examination of the examining professional shall be preserved. If consent is not given for testimony by deposition or affidavit, a professional who would be qualified as an examining professional under the commitment statute may testify instead of an examining professional if the person has examined the transferee within ten (10) days of the hearing.

33-3-710 Findings by court or jury.

If the court finds by a preponderance of the evidence under the transfer statute that the transferee is subject to transfer or continues to be eligible for care and treatment in a facility to which the person was transferred, the court shall so declare. If the court finds otherwise, the court shall order the person's transfer from the receiving facility to the transferring facility or shall order that the person not be transferred to the proposed facility. Findings of a jury with respect to the transfer criteria shall be reported by special verdict.

33-3-711 Limitations on filing complaint.

No complaint under this part may be filed by or on behalf of a transferee within six (6) months after a hearing on a previous complaint under this part.

Part 8-- Habeas Corpus

33-3-801 Determinations of mental condition – Disposition.

(a) During any proceeding to determine whether to release a patient or resident seeking such release by means of a writ of habeas corpus under this section or § 33-3-101, or otherwise, the court shall also, if the issue is raised in the responsive pleading, determine whether the person seeking release is presently mentally ill or mentally retarded and in need of mental treatment.

(b) If the court should determine that the patient or resident was not admitted or committed pursuant to the provisions governing such procedures under this title, or was not afforded due process of law, but that the patient or resident is presently mentally ill or mentally retarded and because of such illness poses a likelihood of serious harm to himself or others, the court may order such patient or resident returned to the hospital or developmental center where the patient or resident was located on the date of the filing of the petition for not more than fifteen (15) days, exclusive of Saturdays, Sundays or holidays, provided a petition under § 33-5-305 or § 33-6-104 is filed and disposed of within such period of time, unless the case is continued on request of petitioner; otherwise the patient or resident shall be released.

(c) Should the court issuing the writ of habeas corpus determine both that the person seeking release was not legally admitted or committed for any reason and is not mentally retarded or is not mentally ill and in need of mental treatment, or, although legally admitted or committed is no longer mentally ill or mentally retarded and in need of mental treatment, as the case may be, the court shall enter an order discharging such person, and, if not the same court which ordered his commitment or admission, shall transmit a certified copy of such order to that court. Upon receipt of the certified copy of such order the court shall enter an order finding that such person has been discharged by order of the court which issued the writ of habeas corpus.

Part 9-- Guardianship Provisions

33-3-901 Designation of limited guardians for patients or residents.

The commissioner shall designate employees of the department whom courts may appoint, regardless of whether they reside in the same county as the ward, as limited guardian for a patient or resident in a state institution under title 34, chapter 4, part 1 if the court determines that no other person or legally qualified organization will serve for the person and that it is for the best interests of the patient or resident that the person be appointed.

33-3-902 Bond.

If the total value of the assets which are turned over to an employee for a ward does not exceed five thousand dollars ($5,000) exclusive of the burial fund, the court shall not require a bond.

33-3-903 Duration of guardianship.

An employee serving as guardian under this part may serve under these provisions only so long as the employee continues to be an employee of the department and for up to ninety (90) days after the ward leaves the state facility.

33-3-904 Funds and assets received by guardian.

(a) All funds received by a guardian appointed under this part shall be handled as state funds, and they shall be accountable as all other state funds and shall be audited annually by the state. All earnings on the funds shall inure to the benefit of the ward. The department shall file a copy of the annual audit with the appointing court.

(b) All other assets received by a guardian appointed under this part shall be handled as state property except that the guardian may dispose of them in the exercise of the guardianship free of laws governing the disposition of state property and shall keep a record of the disposition of all such property and the reason for the disposition.

(c) Upon termination of the guardianship, all assets remaining in the estate shall be paid over to the ward or to the ward's legal representative.

33-3-905 Annual report.

An employee serving as guardian shall file the annual report required by the Limited Guardianship Law with the appointing court on a form approved by the commissioner.

33-3-906 Designation of trustees for patients or residents – Audit.

(a) The commissioner may designate employees of the department to serve as trustees for patients or residents if the terms of the trust have been approved in writing by the commissioner and the attorney general.

(b) All assets, funds, and other property held as a part of the corpus of trust and income from it shall be audited annually by the state.

33-3-907 Qualifications of guardians and trustees.

No employee may be appointed under this part as guardian or trustee for a person unless the employee has sufficient background to understand the handicapping condition of the person. No employee may be required to accept an appointment as guardian or trustee as a condition of employment unless such duties are a normal part of the employee's duties and the employee can serve in good conscience and without conflict of interest. No employee may be appointed as guardian or trustee of a resident or patient who is in the institution in which the employee works.

33-3-908 Coercion of trustee or guardian – Penalty.

An employee who attempts to coerce a guardian or trustee serving under this part to take any particular action as guardian or trustee shall be dismissed

CHAPTER 6 SERVICES TO MENTALLY ILL PERSONS

Part 1-- Services Generally

33-6-101 Voluntary hospitalization – Release – Minors.

(a)(1)(A) Any person sixteen (16) years of age or over; or

(B) The spouse, parent, legal custodian, or legal guardian on behalf of a person less than eighteen (18) years of age,
may apply for admission to a public or private hospital or treatment resource for diagnosis, observation and treatment of a mental illness.

(2) Upon such application, if an examination by an admitting physician determines the need for hospitalization, the superintendent of a public hospital shall admit and the superintendent of a private hospital or treatment resource, as defined in § 33-1-101, may admit the person. The superintendent shall notify the parent, guardian, or legal custodian of a minor patient of the admission. Except in the circumstances of an emergency under § 33-6-103, admission is subject to the availability of suitable accommodations. The admitting physician shall have on hand at all times for public inspection the definition of "suitable accommodations" which shall have been determined by the board of the institution involved.

(3) No person less than eighteen (18) years of age may be admitted under this section for more than one (1) six-month period in any twelve-month period unless the admissions review committee, as defined herein, approved further hospitalization.

(4) The admissions review committee consists of four (4) persons. Two (2) members shall be appointed from the hospital or treatment resource by the superintendent and two (2) members shall be appointed from the community contiguous to the hospital or treatment resource by the president of the Tennessee Association of Mental Health Centers. The members appointed by the president of the Tennessee Association of Mental Health Centers shall not be employees or staff members of the hospital or treatment resource. The committee members shall be specially trained in child mental health.

(5) The admissions review committee shall approve continued hospitalization by a vote of at least three (3) of its members. If the committee recommends the patient's continued hospitalization for a period not to exceed six

(6) months, it shall so declare; otherwise the patient shall be released, unless, prior to the committee's decision, a petition for judicial hospitalization has been filed under § 33-6-104. Committee members shall serve voluntarily, but shall be reimbursed by the hospital or treatment resource for their travel and per diem living expenses.

(b) A patient who is sixteen (16) years of age or over, or the guardian of a patient under guardianship, or the patient's spouse, or the parent or legal custodian or guardian of a minor patient, may at any time request the patient's release by filing a written application with the superintendent. If a competent patient cannot file a written request, any person acting on the patient's behalf may file the request with the patient's consent.

(c) IF

(1) the superintendent receives a request for discharge, AND

(2) the superintendent does not admit the patient under § 33-6-103, THEN

(3) the superintendent shall release a minor patient within twenty-four (24) hours and an adult patient within twelve (12) hours after receipt of the request, or at the time stated in the minor or adult patient's request, whichever is later.

(d) The superintendent shall notify the parent, guardian, or legal custodian of a minor patient's impending release. If the superintendent has reason to believe that the minor patient is likely to be dependent and neglected upon release, then the superintendent shall so notify the department of children's services before the release.

33-6-102 Outpatient treatment.

If a person is sixteen (16) years of age or over, the person may apply to a public or private facility or professional for outpatient diagnosis, evaluation, and treatment for mental illness. The facility or professional may provide treatment and rehabilitation without obtaining the consent of the person's parent, legal guardian, or custodian.

33-6-103 Custody and hospitalization procedures.

(a) IF AND ONLY IF

(1) a person is mentally ill, AND

(2) the person poses an immediate substantial likelihood of serious harm, as defined in § 33-6-104, because of the mental illness, THEN

(3) the person may be detained under subsection (b) to obtain examination for certification of need for care and treatment.

(b) IF

(1) an officer authorized to make arrests in Tennessee or a licensed physician has reason to believe that a person is subject to detention under subsection (a), THEN

(2) the officer or physician may take the person into custody without a civil order or warrant for immediate examination under subsection (d) for certification of need for care and treatment.

(c) IF AND ONLY IF

(1) a person is mentally ill, AND

(2) the person poses an immediate substantial likelihood of serious harm, as defined in § 33-6-104, because of the mental illness, AND

(3) the person needs care, training, or treatment because of the mental illness, AND

(4) all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person, THEN

(5) the person may be admitted and detained by a hospital or treatment resource for emergency diagnosis, evaluation, and treatment under this section.

(d) IF

(1)(A) a licensed physician takes a person into custody under this section, OR

(B) a person is brought to such a physician for examination under this section, THEN

(2) the physician shall immediately examine the person and decide whether the person is subject to admission to a hospital or treatment resource under subsection (c), AND

(3)(A) IF

(i) the person is not subject to admission, THEN

(ii) the physician shall release the person, AND

(B) IF

(i) the person is subject to admission, THEN

(ii) The physician shall complete a certificate of need for such emergency diagnosis, evaluation, and treatment showing the factual foundation for the conclusions on each item of subsection (c).

(4) Except in counties with a population in excess of two hundred eighty thousand (280,000) according to the 1990 federal census or any subsequent federal census, if the evaluation of the person takes place in an area of the state that has in place a community-based screening agency designated by the commissioner under chapter 2, part 6 of this title and the proposed placement of the person is a state-operated mental health institute or treatment resource under contract with the state to provide inpatient bed capacity, then, if the evaluating physician is not an agent of the community-based screening agency, transportation of the person to the mental health institute may not begin without the written concurrence of the community-based screening agency with the conclusion of the physician that the person is subject to admission under subsection (c). The written concurrence must be, in content and form, a certificate of need.

(e)(1)(A) Except as provided in subdivision (e)(2), if the person is subject to admission under subsection (c) and is already at the hospital or treatment resource in which it is proposed to place the person, further proceedings shall be under subsection (g). If the person is subject to admission under subsection (c), then the individual(s) who have certified the person's eligibility for admission shall give the original(s) of the certificate(s) to the transportation agent for the area and turn the person over to the custody of the transportation agent who has the duty to transport the person to a hospital or treatment resource which has available accommodations for admitting the person.

(B) Officials and agencies included in this subsection within the county or area whose expertise or resources may be affected by transportation of persons under this section shall by agreement designate a transportation agent or transportation agents for a county or area. On May 17, 1993, the county executive for a county or county executives for an area shall notify the following of a meeting to develop a plan for transportation of persons from the county or area: hospital administrators whose hospitals evaluate persons under this section; the executive director of the community-based screening agency serving the area, and if there is none, then the executive director of a community mental health center serving the area; the sheriff; the chief executive officer of any ambulance service; the superintendent of the regional, state-operated mental health institute; and the superintendent of a treatment resource under contract with the state to provide inpatient bed capacity. Designation of a transportation agent or agents shall be in force by October 1, 1993. The plan shall include a primary transportation agent and a secondary transportation agent which will transport persons if the primary transportation agent is unavailable. Agreements to designate transportation agents may be amended each year but there must always be a transportation agent. Nothing in this subsection (e) shall prohibit the involvement or incorporation of caregivers in the transportation plan. Any agreement to designate a transportation agent must take into account funding of the transportation agent as well as which characteristics of a particular transportation agent are best suited to the different clinical conditions of persons who are eligible for admission under this section. The development of the plan shall specifically provide for transportation by the sheriff of persons who have been determined to be a threat to others by the physician evaluating the person to be transported. If the plan designates persons to be transported by an ambulance service, the plan may allow for transportation by the ambulance service to be in a motor vehicle other than an ambulance. If the parties in a county or area are unable to reach agreement on a transportation agent, then the county executive shall designate a transportation agent as the primary transportation agent and designate a transportation agent as the secondary transportation agent to transport persons if the primary transportation agent is unavailable, utilizing available local government resources. Once a transportation plan has been agreed upon, the county executives shall notify the officials and agencies listed above of the plan and its terms. The plan and its implementation are discretionary functions under § 29-20-205.

(C) Before the transportation agent begins to transport the person, the transportation agent shall notify the hospital or treatment resource to which it is proposed to place the person, telling it where the transportation agent is and the best estimate of anticipated time of arrival at the hospital or treatment resource; then the transportation agent may transport the person. If the transportation agent has complied with this subdivision (C) and arrives at the hospital or treatment resource within the anticipated time of arrival, then the transportation agent must remain at the hospital or treatment resource only long enough for the person to be evaluated for admission under subsection (g), but not longer than one (1) hour and forty- five (45) minutes. After this time, the person becomes the responsibility of the evaluating hospital or treatment resource. If the transportation agent has not arrived within the anticipated time of arrival, the transportation agent must remain at the hospital or treatment resource as long as it takes to complete the evaluation under subsection (g).

(D) The provisions of this subsection do not apply in any county having a population in excess of eight hundred thousand (800,000) according to the 1990 federal census or any subsequent federal census.

(2) In any county having a population in excess of two hundred eighty thousand (280,000) according to the 1990 federal census or any subsequent federal census, if the person is subject to admission under subsection (c) and is already at the hospital or treatment resource in which it is proposed to place the person, further proceedings shall be under subsection (g). If the physician certifies that the person is subject to admission under subsection (c), the physician shall give the sheriff the original of the certificate and turn the person immediately over to the custody of the sheriff who shall transport the person to a hospital or treatment resource which has available accommodations for admitting the person. As an alternative to the transport of the person by the sheriff in all cases and as an alternative to § 33-6-111, the sheriff may create a written transportation policy in conjunction with the county executive and the ambulance service serving the county and allow the person to be transported in accordance with the policy. The policy shall state the circumstances under which the sheriff may allow transport of the person by personnel of the ambulance service if such transport is available. The policy may allow transport of the person by the sheriff alone, by ambulance service personnel alone, by the sheriff accompanied by ambulance service personnel, or by ambulance service personnel accompanied by the sheriff. The creation and implementation of the policy shall be discretionary functions within the meaning and for the purpose of § 29-20-205 of the Governmental Tort Liability Act. The sheriff shall be reimbursed the expenses of such transportation as provided in § 8-21-901. If the person is not admitted to the hospital, the sheriff shall file for the expenses in the general sessions court of the sheriff's county.

(f)(1) If a person is a licensed doctoral level psychologist designated as a health service provider under the law of Tennessee as determined by the board of healing arts and is actively practicing as a psychologist designated as a health service provider, the person may take any action authorized for a physician and perform any duty imposed on a physician by subsections (a)-(e). An officer may take anyone who is in custody under subsection (b) to such a psychologist for examination under subsection (d).

(2)(A) If a person

(i) has a master's degree or doctor's degree in nursing or social work or has a master's degree in psychology, counseling, or marital and family therapy; and

(ii) is licensed or certified to practice in Tennessee in the discipline in subdivision (2)(A), in which the person has the master's or doctor's degree; and

(iii) is a member of a crisis service program which is under contract with the department to implement chapter 2, part 6 of this title; and

(iv) satisfactorily completes a training program approved and provided by the department relative to emergency commitment criteria and procedures;

then the commissioner may designate the person to take all or any action authorized for a physician and perform all or any duty imposed on a physician by subsections (a)-(e), to the extent such duties are within the scope of practice of the profession in which the person is licensed or certified. An officer may take anyone who is in custody after subsection (b) to such a person for examination under subsection (d).

(B) The designated person's authority is valid only within the region of the state designated by the commissioner, in connection with hospitalization of a person at a facility owned or operated by the department, and subject to the continued satisfaction of items (i)-(iv) of subdivision (f)(2)(A). A designated person's authority within such region of the state is valid in connection with hospitalization of a person at a private hospital or treatment resource only if the private hospital or treatment resource files notice of acceptance of the designated person's authority with the commissioner. The commissioner may base designation on criteria consistent with this subdivision (f)(2) in addition to (A)-(D), and may, in the commissioner's discretion, set other limits on a designated person's authority, and may remove designation of authority from a person without cause. The commissioner is not bound to designate a person solely because the person satisfies items (i)-(iv) of subdivision (f)(2)(A). Designation of a person does not vest any property right, and limitations on authority and removal of designation of a person are not covered by the Uniform Administrative Procedures Act, codified in title 4, chapter 5 or title 8, chapter 30.

(C) This subdivision (f)(2) does not affect any property right of an employee of the state who acts in the capacity of employee of the state.

(g) The receiving hospital or treatment resource shall have a licensed physician give the person a physical and mental examination to determine whether the person is subject to admission under subsection (c). Except as provided in the following sentence, if the person is not subject to admission and the transportation agent is under a duty to remain at the hospital or treatment resource under subsection (e), then the transportation agent shall return the person to the county. In counties having a population in excess of two hundred eighty thousand (280,000) according to the 1990 federal census or any subsequent federal census, if the person is not subject to admission, the physician shall release the person, and the sheriff or other authority lawfully transporting the person shall return the person to the county. In counties having a population of six hundred thousand (600,000) or more people according to the 1970 federal census of population or any subsequent federal census, the sheriff is relieved of further transportation duties which shall be assumed by appropriate personnel of the hospital or treatment resource after the person has been delivered to it.

(h) If the person is subject to admission under subsection (c), the physician shall complete a certificate of need for such emergency diagnosis, evaluation, and treatment showing the factual foundation for the conclusions on each item of subsection (c). The individual taking the person to the hospital or treatment resource may then apply for admission for the purpose of emergency diagnosis, evaluation and treatment. The application shall be accompanied by the two (2) certificates of need and shall state the circumstances under which the person was taken into custody and the reasons for doing so.

(i) If the superintendent of a licensed state facility determines that the person is subject to admission under subsection (c), then the superintendent of the state facility shall admit and detain the person for emergency diagnosis, evaluation and treatment.

(j) IF

(1) the superintendent of a licensed private or local public hospital or treatment resource determines that the person is subject to admission under subsection (c), AND

(2) the facility has contracted with the department to serve such persons in the region, THEN

(3) the facility shall admit and detain the person in conformity with its obligations under its contract with the department for emergency diagnosis, evaluation and treatment.

(k) IF

(1) the superintendent of a licensed private or local public hospital or treatment resource determines that the person is subject to admission under subsection (c), AND

(2)(A) a parent, guardian, legal custodian, spouse, or an adult relative of the person, or any other person has made arrangements to pay the cost of care and treatment in a hospital, or treatment resource, OR

(B) such a facility chooses to accept the person despite the fact that no third person has made arrangements to pay the cost, AND

(3) placement in the facility is more appropriate to the needs of the person than placement in a state facility, THEN

(4) the facility may admit and detain the person for emergency diagnosis, evaluation and treatment.

(l) The superintendent, upon admission of the person, shall notify the general sessions judge where the hospital or treatment resource is located by telephone or in person and shall provide the information from the certificates of need and such other information as the court may desire which is in the possession of the hospital or treatment resource bearing on the condition of the person. If the general sessions court finds that there is probable cause to believe that the defendant is subject to admission to a hospital or treatment resource under subsection (c), the court may order the defendant admitted for not more than five (5) days from the date of the order, excluding Saturdays, Sundays, and holidays, for emergency diagnosis, evaluation and treatment pending a probable cause hearing under subsection (u). If the court does not order the defendant admitted, the defendant shall be released. The court shall give notice of the time and place of the probable cause hearing by mail to the defendant, the defendant's attorney, the superintendent of the hospital or treatment resource, and the parent, guardian, spouse or adult next of kin of the defendant.

(m) If the judge is not available and all other provisions of this section have been complied with, the admitting facility may hold the defendant for not more than twenty-four (24) hours pending a court order under subsection (l ), and its staff may render only necessary emergency treatment.

(n) Pending the probable cause hearing under subsection (u), no treatment shall be given that will make the defendant unable to consult with counsel or to prepare a defense in proceedings for involuntary care and treatment. No psychosurgery, convulsive treatments, or insulin treatment shall be undertaken for any psychiatric disorder until an order has been entered, after the subsection (u) probable cause hearing in accordance with the provisions of this section, requiring continued involuntary care and treatment of the defendant.

(o) If the court orders the admission of the defendant for diagnosis, evaluation and treatment, the superintendent shall give personal notice of the order to the defendant and by mail or telephone to the parent, guardian, legal custodian, spouse, or adult next of kin of the defendant. The notice shall state specifically the basis for the defendant's detention and the standards for possible future commitment. The notice shall also inform the defendant of the defendant's right to counsel during the course of proceedings for involuntary care and treatment.

(p) If the defendant is released under § 33-6-109 or this section before the subsection (u) hearing, the superintendent shall notify the court which ordered the defendant's emergency diagnosis, evaluation and treatment. If the defendant is transferred to another facility before the subsection (u) hearing, the court shall transfer the hearing to the general sessions court of the county to which the defendant is transferred, and the hearing shall be held within five (5) days of the defendant's original detention under this section.

(q) Probable cause proceedings under subsection (u) shall be conducted in conformity with §§ 33-3-610 – 33-3-615.

(r) The defendant's attorney shall notify the court of the representation immediately after accepting it. If the defendant does not employ an attorney, the court shall appoint an attorney to represent the defendant not later than two (2) days after the original detention or three (3) days before the date of the hearing, whichever is earlier. An attorney representing the defendant shall not serve as guardian ad litem. If the court determines that the defendant is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the defendant's guardian ad litem.

(s) If the defendant consents in writing to a waiver of hearing, counsel may waive such hearing upon proper notice to the court.

(t) The superintendent shall file with the court, by the time of the probable cause hearing, certificates of need for care and treatment from two (2) licensed physicians or one (1) licensed physician and either one (1) person designated by the commissioner under subdivision (f)(2) or one (1) licensed doctoral-level psychologist designated as a health services provider qualified under subdivision (f)(1), certifying that the defendant satisfies the requirements of § 33-6-104(b)(1)-(4) and that if involuntary treatment is not continued the defendant's condition resulting from mental illness is likely to deteriorate rapidly to the point that the defendant would be again admissible under subsection (c), and showing the factual foundation for the conclusions on each item of the certificates.

(u) If, after the hearing is waived or is completed and the court has completed its consideration of the evidence, including the certificates of the examining professionals, and any other information relevant to the mental condition of the defendant, the court finds probable cause to believe that the defendant is subject to care and treatment under § 33-6-104(b) and that if involuntary treatment is not continued the defendant's condition resulting from mental illness is likely to deteriorate rapidly to the point that the defendant would be again admissible under subsection (c) of this section, the court may order the defendant held for care and treatment pending a hearing under § 33-6-104 but not more than fifteen (15) days after the probable cause hearing unless a complaint is filed under § 33-6-104 within the fifteen (15) days.

(v) If the court does not find both:

(1) That there is probable cause to believe that the defendant is subject to care and treatment under § 33-6-104(b); and

(2) That there is probable cause to believe that if involuntary treatment is not continued the defendant's condition resulting from mental illness is likely to deteriorate rapidly to the point that the defendant would be again admissible under subsection (c), it shall so declare, order the release of the defendant from the hospital or treatment resource, and terminate the proceedings under this section.

(w) If the superintendent determines that the defendant's condition does not support the filing of the certificates required by subsection (t), the superintendent shall release the defendant. The superintendent shall release the defendant five (5) days, excluding Saturdays, Sundays, and holidays, from the date of the general sessions court's original order to hold the defendant unless the general sessions court has ordered the defendant's further care and treatment under subsection (u) or the defendant has been committed under § 33-6-104. The superintendent shall release the defendant not later than fifteen (15) days after the probable cause hearing unless a complaint is filed under § 33-6-104 within the fifteen (15) days.

(x) No defendant shall be detained at a jail or other custodial facility for the detention of individuals charged with or convicted of criminal offenses, unless the defendant is under arrest for the commission of a crime.

(y) If a person who is not a licensed physician executes the first certificate of need in support of hospitalization under subsection (d) or (t), then only a licensed physician may execute the second certificate of need in support of hospitalization under subsection (g) or (t).

33-6-104 "Substantial likelihood of serious harm" defined – Standards for commitment to involuntary care and treatment.

(a) IF AND ONLY IF

(1)(A) a person has threatened or attempted suicide or to inflict serious bodily harm on such person, OR

(B) the person has threatened or attempted homicide or other violent behavior, OR

(C) the person has placed others in reasonable fear of violent behavior and serious physical harm to them, OR

(D) the person is unable to avoid severe impairment or injury from specific risks, AND

(2) there is a substantial likelihood that such harm will occur unless the person is placed under involuntary treatment, THEN

(3) the person poses a "substantial likelihood of serious harm" for purposes of § 33-6-103 and this section.

(b) IF AND ONLY IF

(1) a person is mentally ill, AND

(2) the person poses a substantial likelihood of serious harm because of the mental illness, AND

(3) the person needs care, training, or treatment because of the mental illness, AND

(4) all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person, THEN

(5) the person may be judicially committed to involuntary care and treatment in a hospital or treatment resource in proceedings conducted in conformity with chapter 3, part 6 of this title.

(c) No defendant may be judicially committed under this section unless:

(1) Two (2) licensed physicians; or

(2) One (1) licensed physician and one (1) licensed clinical psychologist qualified as provided in § 33-6-103(f);
file in the commitment proceeding certificates of need for care and treatment certifying that the defendant satisfies the requirements of subdivisions (b)(1)-(4) and showing the factual foundation for the conclusions on each item.

(d) The parent, guardian, legal custodian, spouse, or a responsible adult relative of the person alleged to be in need of care and treatment, a licensed physician, a licensed clinical psychologist who meets the requirements of § 33-6-103(f), a health or public welfare officer, an officer authorized to make arrests in Tennessee, or the head of any institution which the person is in may file a complaint to require involuntary care and treatment of a mentally ill person under this section.

(e) If the department has designated a licensed state facility as having available suitable accommodations, the court shall commit the defendant to the state facility, and the defendant shall be placed in the custody of the commissioner.

(f) If a licensed public hospital or treatment resource other than a state facility has available suitable accommodations, the court may commit the defendant to the public facility.

(g) If a licensed private or local public hospital or treatment resource has contracted with the department to serve such defendants in the region and has available suitable accommodations, the court shall commit the defendant to the facility, and the facility shall admit and detain the defendant in conformity with its obligations under its contract with the department.

(h) IF

(1)(A) a parent, guardian, legal custodian, spouse, or an adult relative of the defendant, or any other person has made arrangements to pay the cost of care and treatment in a licensed private hospital or treatment resources, OR

(B) such a facility chooses to accept the defendant despite the fact that no third person has made arrangements to pay the cost, AND

(2) placement in the facility is more appropriate to the needs of the defendant than placement in a state facility,
THEN

(3) the court may commit the defendant to the facility.

(i) The superintendent of a facility to which a person is committed under this section shall not admit the person until the facility has an available suitable accommodation. If a person is committed to a state facility under this section, the person does not come into the custody of the commissioner until the facility has an available suitable accommodation.

33-6-105 Hospitalization in veterans’ administration facilities.

If an individual ordered to be hospitalized pursuant to § 33-6-104 is eligible for hospital care or treatment by the veterans' administration of the United States within this state, the court, upon receipt of a certificate from such agency showing that facilities are available and that the individual is eligible for care or treatment therein, may order him to be placed in the custody of such agency for hospitalization within this state. With respect to such individuals the appropriate provisions of § 34-5-118, being a part of the Uniform Veterans' Guardianship Law, shall apply.

33-6-106 Transportation of patient to hospital – Temporary detention.

(a) Whenever an individual is about to be hospitalized in a public hospital under the provisions of § 33-6-103 or § 33-6-104, the court shall arrange for the transportation of the individual to the hospital. Whenever practicable, the individual to be hospitalized shall be permitted to be accompanied by one or more of his friends or relatives, who shall travel at their own expense. Any reputable or trustworthy relative or friend of the individual who will assume responsibility for his safe deliverance may be allowed to transport him to the hospital if such relative or friend will do so at his own expense. A female attendant shall always accompany a female patient to the hospital unless she is accompanied by one or more adult relatives.

(b) Pending his removal to a hospital, a patient taken into custody or ordered to be hospitalized pursuant to § 33-6-103 or § 33-6-104 may be detained in his home, or in some suitable facility under such reasonable conditions as the court may fix, but the patient shall not be detained in a nonmedical facility used for the detention of individuals charged with or convicted of criminal offenses. Reasonable measures, including provision for medical care, as may be necessary to assure proper care of an individual temporarily detained pursuant to this section, shall be taken.

33-6-107 Notice of admission to guardian or family.

Whenever an individual is admitted to a hospital under § 33-6-103 or § 33-6-104 on the application of any person other than the individual's parent, guardian, legal custodian, spouse or adult next of kin, the superintendent shall notify immediately the individual's parent, guardian, legal custodian, spouse, or adult next of kin if known.

33-6-108 Initial and subsequent examinations – Release.

(a) Every patient admitted to a hospital pursuant to the provisions of § 33-6-103 or § 33-6-104 shall be examined by the staff of the hospital as soon as practicable after admission.

(b)(1) Any patient hospitalized pursuant to a court order obtained under § 33-6-104, or the patient's attorney, parent, guardian, legal custodian, spouse or adult next of kin, shall be entitled, upon the expiration of ninety (90) days following such order and not more frequently than every six (6) months thereafter, to request, in writing, the superintendent of the hospital in which the patient is hospitalized to have a current examination of the patient's mental condition made by one or more physicians. If the request is timely it shall be granted. The patient shall be entitled at the patient's own expense to have a licensed physician not connected with the hospital to participate in such examination. In the case of any such person who is indigent, the department of mental health and mental retardation shall upon the written request of such patient and with the approval of the commissioner, assist the patient in obtaining a licensed physician to participate in such examination in the patient's behalf. Any such physician so obtained by such indigent patient shall be compensated for services out of any unobligated funds of the department in an amount determined by it to be fair and reasonable.

(2) If, after considering the reports of the physicians and other relevant information, the superintendent determines that the patient is eligible for discharge under § 33-6-109 or § 33-6-201 that the discharge is not subject to judicial review under § 33-6-110, the superintendent shall order the immediate release of the patient and notify the committing court. If one (1) or more of the physicians participating in such an examination reports that the patient no longer meets the standards under which the patient was admitted, the patient may petition the court which ordered the hospitalization for an order directing the patient's release. The patient shall be apprised of the results of such examination reports and shall be furnished true copies of them which shall accompany the patient's petition.

(c) In considering such petition, the court shall consider the testimony of the physicians who participated in the examination of such patient, and their reports accompanying the petition. After considering such testimony and reports, the court shall either:

(1) Reject the petition and order the continued hospitalization of the patient; or

(2) Order the immediate release of the patient. Any physician participating in such examination shall be a competent and compellable witness at any judicial proceeding held pursuant to this title.

(d) The superintendent of a public or private hospital shall, as often as practicable, but not less often than every six (6) months, examine or cause to be examined each patient admitted under this title. If the superintendent determines on the basis of such examination that the patient is eligible for discharge under § 33-6-109 or § 33-6-201, and that the discharge is not subject to judicial review under § 33-6-110, the superintendent shall order the immediate release of the patient and shall notify the person upon whose application the patient was admitted and, if the patient was involuntarily hospitalized, the court which ordered the hospitalization.

33-6-109 Discharge criteria.

(a) IF

(1) a patient admitted to a hospital under any provision of this title other than § 33-6-104 no longer meets the standards under which the admission took place, AND

(2) the patient's detention is not otherwise authorized under the admission statute, THEN

(3) the patient shall be discharged.

(b) IF

(1) a patient was committed involuntarily under § 33-6-104, AND

(2)(A) the patient is not mentally ill, OR

(B)(i) The patient is mentally ill or is suffering a mental illness in remission, AND

(ii) the patient does not pose a likelihood of serious harm as defined in § 33-6-104(a), OR

(C)(i) the patient would pose a likelihood of serious harm as defined in § 33-6-104(a) unless treatment is continued, AND

(ii) voluntary outpatient treatment is a suitable less drastic alternative to commitment because the patient is likely to participate in outpatient treatment without being legally obligated to do so, THEN

(3) IF

(A) the patient is not subject to judicial review under § 33-6-110, THEN

(B) the patient shall be discharged, AND

(4) IF

(A) the patient is subject to judicial review under § 33-6-110,  THEN

(B) the patient shall be discharged in conformity with § 33-6-110.

(c) IF

(1) a patient was committed involuntarily under § 33-6-104, AND

(2) the patient is mentally ill or is suffering a mental illness in remission, AND

(3) the patient would pose a likelihood of serious harm as defined in § 33-6-104(a) unless treatment continues, AND

(4) voluntary outpatient treatment is not a suitable less drastic alternative to commitment because the patient is not likely to participate in outpatient treatment without being legally obligated to do so, THEN

(5) the patient is eligible for discharge only under § 33-6-201.

33-6-110 Discharge procedure.

(a) If a patient is committed involuntarily by a criminal or juvenile court under § 33-6-104 and the court determines at the time of commitment that, due to the nature of the person's criminal conduct which created a serious risk of physical harm to other persons, the patient should not be discharged from the commitment without proceedings under this section to review eligibility for discharge under § 33-6-109 or § 33-6-201, the hospital shall proceed under this section to effect discharge from the commitment.

(b) Any patient who was committed involuntarily on the basis of mental illness between April 23, 1980 and July 1, 1982 and was subject to the discharge procedures of former § 33-313 during that period is subject to discharge only under the procedures of subsections (c)-(g).

(c) When the superintendent determines that the patient is eligible for discharge under § 33-6-109 or § 33-6-201, the superintendent shall notify the committing court of that conclusion, the basis for it, and, if discharge is pursuant to § 33-6-201, the outpatient treatment plan approved by the releasing facility for the patient. Such determination by the superintendent shall constitute a rebuttable presumption of the correctness thereof. The clerk shall send a copy of that complete notice and plan to the patient's counsel and to the district attorney general for the jurisdiction in which the committing court is located. The court may, on its own motion or that of the district attorney general, order a hearing to be held within twenty-one (21) days of the receipt of the superintendent's notice. The court shall send notice of the hearing to the patient, the superintendent, the patient's counsel, the patient's next of kin, and the district attorney general.

(d) If the court does not set a hearing and notify the superintendent within fifteen (15) days of its receipt of the superintendent's notice, the superintendent shall release the person from involuntary commitment under § 33-6-109 or § 33-6-201 as appropriate.

(e) The hearing shall be held within twenty-one (21) days of the court's receipt of notice from the superintendent. The patient shall attend the hearing, unless such presence is waived in writing by counsel before the hearing. If the patient does not have counsel, the court shall appoint counsel to represent the patient throughout the proceedings and any appeal. Patient's counsel shall advocate for the least drastic alternative to commitment, unless directed otherwise by the patient. Compensation of appointed counsel for the patient shall be pursuant to Rule 15 of the Tennessee Supreme Court Rules.

(f) Following the hearing, if the court finds by clear, unequivocal, and convincing evidence that the patient is not eligible for discharge under § 33-6-109 or § 33-6-201, it shall order the patient's return to the hospital under the original commitment. If the court finds otherwise, it shall order the patient's release from involuntary commitment in accordance with the recommendations of the superintendent.

(g) The district attorney general on behalf of the state or the patient may file a notice of appeal of a final adjudication under this section to the Court of Criminal Appeals.

33-6-111 County contracts for ambulance services.

Counties may contract with community mental health centers or contract with or designate ambulance services to assist the sheriff's office by the detention or transportation of persons who are subject to detention or transportation by the sheriff under this chapter. In the performance of the contract or designation the center or ambulance service shall have the same duties as and the same authority as the sheriff under this chapter in the detention or transportation of such persons.

Part 2-- Mandatory Outpatient Treatment

33-6-201 Discharges of involuntarily committed persons subject to mandatory out-patient treatment – Procedure.

(a) IF

(1) a patient was committed involuntarily under § 33-6-104, AND

(2) the hospital staff determines preliminarily that the patient will need to participate in outpatient treatment on discharge and that there is a likelihood that the discharge will be subject to the outpatient treatment obligation of this section, THEN

(3) IF

(A) the patient refuses to give consent to disclose information which is legally confidential under this Code to the proposed outpatient treating professional, THEN

(B) the hospital and treating professional may exchange patient information as necessary to carry out this section.

(b) IF

(1) on the basis of a review of the patient's history before and during hospitalization, the hospital staff concludes that:

(A) the patient is mentally ill or is suffering a mental illness in remission, AND

(B) the patient's condition resulting from mental illness is likely to deteriorate rapidly to the point that the patient will pose a likelihood of serious harm as defined in § 33-6-104(a) unless treatment is continued; and

(C) the patient is likely to participate in outpatient treatment with a legal obligation to do so; and

(D) the patient is not likely to participate in outpatient treatment unless legally obligated to do so; and

(E) mandatory outpatient treatment is a suitable less drastic alternative to commitment; THEN

(2) the patient shall be eligible for discharge subject to the obligation to participate in any medically appropriate outpatient treatment, including psychotherapy, medication, or day treatment, under a plan approved by the releasing facility and the outpatient treating professional.

(c) IF

(1) the patient requests judicial review of the treatment plan within 48 hours after being advised of the patient's eligibility for release under it, THEN

(2) the hospital shall notify the court where the hospital is located which has the same jurisdiction as the committing court that the patient is eligible for discharge subject to the obligation to participate in outpatient treatment under the plan agreed to by the releasing facility and the outpatient treating professional, AND

(3) the court shall hold a hearing within seven days of receipt of the request to determine whether the treatment plan is medically appropriate and legally permissible, AND

(4) the court shall either approve the plan or approve the plan as modified by the releasing facility and the outpatient treating professional to correct deficiencies found by the court.

(d) IF

(1)(A) the patient does not request judicial review of the discharge plan, OR

(B) the court approves an outpatient treatment plan after a hearing under subsection (c), THEN

(2) IF

(A) the patient is subject to judicial review under § 33-6-110, THEN

(B) the patient shall be discharged in conformity with § 33-6-110, AND

(3) IF

(A) the patient is not subject to judicial review under § 33-6-110, THEN

(B) the hospital shall discharge the patient, AND

(4) The hospital shall notify the committing court that the patient has been discharged subject to the obligation to participate in the outpatient treatment.

(e) After discharge the treating professional may change the treatment plan to meet the patient's treatment needs. If the treating professional changes the treatment plan, the patient's obligation to participate in the treatment continues.

(f) If the patient is indigent and is not eligible for payment for service under any other governmentally or privately funded system, the department shall provide for the outpatient services through its authority under §§ 33-1-201 and 33-1-202. If (1) the patient is not indigent or (2) the patient is eligible for payment for services under any other governmentally or privately funded system, the patient is liable to pay for the services.

(g) IF

(1) a patient who has been discharged subject to the obligation to participate in outpatient treatment is admitted to a hospital or treatment resource before the obligation terminates; THEN

(2) the obligation to participate in outpatient treatment is suspended, AND

(3) the obligation resumes on discharge unless it has been terminated under § 33-6-207 or the discharge is under § 33-6-109(b).

33-6-202 Commencement of proceedings to determine noncompliance – Jurisdiction – Court orders.

IF

(1) the parent, guardian, spouse, responsible adult relative, or treating professional of a patient, the person who initiated the commitment proceeding of the patient, or the head of the discharging facility files an affidavit with the court which committed the patient or any court which has jurisdiction under § 33-6-104 in the county where the patient is being treated or is staying showing that:

(A) the patient is required to be participating in outpatient treatment under § 33-6-201; and

(B) the patient is, without good cause, out of compliance with the treatment plan; and

(C) the treating professional believes the non-compliance is not likely to be corrected voluntarily, THEN

(2) the court shall have jurisdiction to conduct original proceedings to enforce the outpatient treatment obligation, AND

(3) the court may order the patient to appear before the court at a stated time not later than seventy-two hours after the order is issued to determine whether the patient is required by this section to be participating in the outpatient treatment and has failed, without good cause, to participate in the treatment as required, AND

(4) the order and a copy of the affidavit shall be served immediately on the patient, the treating professional, and, if the discharge was pursuant to § 33-6-110, the district attorney general for the jurisdiction in which the committing court is located.

33-6-203 Determinations of compliance or noncompliance – Hearings – Release or recommitment of patient.

(a) If the patient appears in person before the court, the court shall hold a hearing to determine whether the patient is required to be participating in outpatient treatment and is, without good cause, not complying with the treatment plan.

(b) If the court determines (1) that the patient is complying with the treatment plan or (2) that the patient is out of compliance for good cause and will be restored to compliance without further action, the court shall release the patient.

(c) If the court determines that the patient is out of compliance with the treatment plan without good cause and that the patient can be put immediately in compliance with the treatment plan and can be expected to stay in compliance without further hospitalization, the court shall make written findings of fact and conclusions of law on the issues, order the patient to comply immediately with the treatment plan, and dismiss the proceedings upon a showing that the patient is in compliance.

(d) If the court determines that the patient is out of compliance with the treatment plan without good cause and that (1) the patient cannot be put in compliance with the treatment plan immediately or (2) the patient cannot be expected to stay in compliance without further hospitalization, the court shall make written findings of fact and conclusions of law on the issues and order the patient re-committed to the hospital from which the patient was released. The sheriff shall immediately transport the patient as ordered, and the hospital shall admit the patient and give notice of the recommitment to the patient's attorney, legal custodian, and spouse or nearest adult relative, to the treating professional, to the committing court, and, if the discharge was pursuant to § 33-6-110, to the district attorney general in the committing jurisdiction.

33-6-204 Custody of noncomplying patients – Examination of patients – Release or recommitment.

(a) IF

(1) the treating professional has filed an affidavit showing that

(A) the patient is required to be participating in outpatient treatment and

(B) the patient is, without good cause, not complying with the treatment plan and

(C) the treating professional believes the non-compliance is not likely to be corrected voluntarily, AND

(2) the patient does not respond to the order to appear, THEN

(3) the court shall order the patient taken into custody, AND

(4) the sheriff shall immediately transport the patient to the hospital from which the patient was discharged, AND

(5) the hospital shall admit the patient and give notice of the temporary recommitment and that a hearing under § 33-6-203 will be held to the patient's attorney, legal custodian, and spouse or nearest adult relative, to the treating professional, to the court which ordered the temporary recommitment of the patient, and to the court where the hospital is located which has the same jurisdiction as the recommitting court.

(b) IF

(1) the treating professional has not filed an affidavit with the court regarding the patient, AND

(2) the patient does not respond to the order to appear, THEN

(3) the court shall order the patient taken into custody, AND

(4) the officer who serves the order on the patient shall take the patient to the treating professional or the professional's appointed substitute.

(c) If neither the treating professional nor the substitute is available, the officer who serves the order on the patient shall take the patient to the community mental health center which serves the county or the part of the county in which the patient lives, and the community mental health center shall have the powers and duties of the treating professional under the remainder of this section. The treating professional shall examine the patient to determine whether the patient is in compliance with the treatment plan.

(d) If the treating professional determines that

(1) The patient is in compliance with the treatment plan or

(2) The patient is out of compliance for good cause, is put in compliance immediately, and can be expected to stay in compliance without further hospitalization,

then the treating professional shall release the patient and notify the court of the basis for the release.
If the treating professional determines that

(1) The patient is out of compliance with the treatment plan without good cause, and

(2) The patient can be put in compliance with the treatment plan immediately, and

(3) The patient complies immediately with the treatment plan, and

(4) The patient can be expected to stay in compliance without further hospitalization,

the treating professional shall release the patient and notify the court of the basis for the release.

(e) IF

(1) the treating professional determines that

(A) the patient is out of compliance with the treatment plan without good cause, and

(B)(i) the patient cannot be put immediately in compliance with the treatment plan, or

(ii) the patient cannot be expected to stay in compliance without further hospitalization, or

(iii) the patient does not comply immediately with the treatment plan, THEN

(2) the treating professional shall contact the sheriff, AND

(3) the sheriff shall immediately transport the patient to the hospital from which the patient was discharged, AND

(4) the hospital shall admit the patient and give notice of the temporary recommitment and that a hearing under § 33-6-203 will be held to the patient's attorney, legal custodian, and spouse or nearest adult relative, to the treating professional, to the court which ordered the temporary recommitment of the patient, and to the court where the hospital is located which has the same jurisdiction as the recommitting court.

(f) If the patient does not, within twenty-four (24) hours after admission, request a return to the court which ordered the temporary recommitment under this section, the court where the hospital is located shall schedule a hearing to be held under § 33-6-203 within seventy-two (72) hours of receipt of the notice. If the patient does request a return to the court which ordered the temporary recommitment under this section, that court shall schedule a hearing to be held under § 33-6-203 within seventy-two (72) hours of receipt of the notice.

(g) If the patient, upon being readmitted under this section, is eligible for discharge under § 33-6-201, the patient shall be discharged under § 33-6-201 notwithstanding § 33-3-501. The hospital shall give notice of the discharge to the courts which had been notified of the admission, and the judicial proceedings for recommitment shall be dismissed.

33-6-205 Patients’ rights.

In judicial proceedings under this part the patient shall have the following rights:

(1) The burden of proof to establish, as appropriate to the proceedings, that the outpatient treatment plan is proper, that the patient is subject to return to the hospital, or that the plan is subject to extension, shall be by clear, unequivocal, and convincing evidence and shall be borne by the party seeking to impose such obligations;

(2) The patient shall be present at the hearing unless the patient waives such presence in writing. Notwithstanding any provision to the contrary in this title, if the patient's attorney shows that the patient's physical health would be endangered by being at the hearing, the court may order a continuance until such risk is terminated. If the court determines that the patient's conduct at the hearing is so violent or otherwise disruptive that it creates a serious risk of harm to the patient or others at the hearing or so disrupts the proceedings that they cannot be conducted in a proper manner, the court may order the patient restrained or excluded to the extent necessary to the proper conduct of the proceedings. If the patient is not present at or is excluded from the hearing, the court shall make a written fact finding as to why the hearing is held in the patient's absence; and

(3) The patient's attorney shall notify the court of the representation immediately after accepting it. If the patient does not employ an attorney, the court shall appoint an attorney to represent the patient as soon as possible after the case is docketed. An attorney representing the patient shall not serve as guardian ad litem. If the court determines that the patient is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the patient's guardian ad litem.

33-6-206 Jurisdiction over patients rehospitalized for noncompliance.

If a patient is ordered to be rehospitalized for noncompliance with the treatment plan after a hearing under §§ 33-6-202 – 33-6-204, upon readmission the patient shall be held under the authority of the original court order of commitment entered in the proceedings under § 33-6-104, and any other pending proceedings under § 33-6-103 or § 33-6-104 shall be dismissed.

33-6-207 Termination of out-patient treatment – Procedure.

(a) IF

(1) at any time the treating professional determines that:

(A) the patient is likely to participate in outpatient treatment without being legally obligated to do so; or

(B) the patient no longer needs treatment for the mental illness, THEN

(2) the treating professional shall terminate the treatment obligation, AND

(3) the treating professional shall notify the committing court and the hospital which discharged the patient.

(b) IF

(1) during the sixth month after discharge or after the last renewal the treating professional determines that

(A) the patient is mentally ill or is suffering a mental illness in remission and

(B) the patient's condition resulting from mental illness is likely to deteriorate rapidly to the point that the patient will pose a likelihood of serious harm as defined in § 33-6-104(a) unless treatment is continued and

(C) the patient is not likely to participate in outpatient treatment unless legally obligated to do so and

(D) mandatory outpatient treatment is a suitable less drastic alternative to commitment, THEN

(2) the obligation to participate in outpatient treatment is renewed for six (6) months, AND

(3) the treating professional shall notify the patient, the patient's attorney, the hospital which discharged the patient, and the committing court of the decision and of the basis for it and of the patient's right to request a hearing in the committing court.

(c) If the patient files a written request for a hearing with the committing court, within thirty (30) days after receipt of notice the committing court shall hold a hearing to review the decision of the treating professional. If and only if the court determines that

(1) The patient is mentally ill or is suffering a mental illness in remission and

(2) The patient's condition resulting from mental illness is likely to deteriorate rapidly to the point that the patient will pose a likelihood of serious harm as defined in § 33-6-104(a) unless treatment is continued and

(3) The patient is not likely to participate in outpatient treatment unless legally obligated to do so and

(4) Mandatory outpatient treatment is a suitable less drastic alternative to commitment,
the obligation to participate in outpatient treatment is renewed for six (6) months. If after a hearing the court does not determine the obligation to participate in outpatient treatment to be renewed, the patient is discharged from the outpatient treatment obligation.

(d) IF

(1) a patient is discharged subject to an outpatient treatment obligation under § 33-6-201, AND

(2) the treatment professional has not terminated the outpatient treatment obligation under subsection (a) of this section, THEN

(3) the patient's obligation to participate in outpatient treatment terminates six months after the discharge or the last renewal of the obligation.

33-6-208 Persons discharged under prior law.

Any patient who was discharged under a mandatory outpatient treatment order under former § 33-604(h) before July 1, 1982, shall be deemed to have been discharged subject to an outpatient treatment obligation under § 33-6-201, and is subject to the provisions of this part.

33-6-209 "Treating professional" defined.

IF AND ONLY IF

(1) a person is a qualified mental health professional under the rules of the department for making the judgments required under this part,   THEN

(2) The person is a treating professional under this part.

Part 3-- Sex Offenders

33-6-301 Definitions.

As used in this part:

(1) "Department of correction" means the Tennessee department of correction;

(2) "Department of mental health and mental retardation" means the Tennessee state department of mental health and mental retardation;

(3) "Sex crime" means any offense involving the unlawful sexual abuse, molestation, fondling, or carnal knowledge of a child of the age of fourteen (14) years or under or incest, a crime against nature, assault with intent to commit rape or rape; and

(4) "Sex offender" means any person who has been convicted of a crime involving the unlawful sexual abuse, molestation, fondling, or carnal knowledge of a child of the age of fourteen (14) years or under or any person convicted of incest, a crime against nature, assault with intent to commit rape or rape.

33-6-302 Offenders as mentally ill persons.

Sex offenders constitute a species of mentally ill persons in the eyes of the general assembly, and where this tendency is pronounced, they should have the same care and custody as mentally ill persons generally, and such persons should be given continued care and treatment so long as their release would constitute a threat to them or to the general public.

33-6-303 Examinations upon conviction.

Any person convicted of a sex crime shall be examined thoroughly by a psychiatrist or licensed psychologist or licensed psychological examiner from the department of correction as soon as practicable after admittance to the penal institution. A community mental health center may provide the examination when the service is specifically contracted for and funded by the department of mental health and mental retardation or department of correction.

33-6-304 Certification for treatment.

If, as a result of the examination provided for in § 33-6-303, it is found that such convicted person is capable of being successfully treated, this fact shall be certified by the examining official or officials to the commissioner of correction, together with the suggested treatment, whereupon, the commissioner of correction shall provide such treatment.

33-6-305 Examination prior to release – Petition for commitment.

(a) Not more than one (1) year nor less than six (6) months prior to the non- parole release of any person convicted of a sex crime, an examination of such person shall be made by a psychiatrist or a licensed psychologist or psychological examiner from the department of correction.

(b) The examiner shall determine whether the person is mentally ill and, because of that illness, poses a likelihood of serious harm, as defined in § 33-6-104, and is in need of care and treatment in a mental hospital or treatment resource (as defined in § 33-1-101).

(c) If the examiner determines that the person is mentally ill and, because of this illness, poses a likelihood of serious harm, the director of the correctional institution shall, before the time for the release of the person, petition where the institution is located for judicial commitment under § 33-6-104 to a hospital or treatment resource designated by the commissioner.

33-6-306 Post-plea treatment system.

The department of mental health and mental retardation in cooperation with the department of correction, the department of human services and the district attorneys general conference shall develop a "post-plea" treatment system for sexual offenders, victims, and their families, modeled after systems which are operating in some local communities around the country. The system shall provide for a standard fee for treatment services and shall provide for the development of a certification process for service providers to ensure sexual abuse treatment expertise by the service providers. The certification should encompass a combination of professional education and licensure with specialized knowledge in this field. The treatment system shall be designed within a conceptual framework which includes, but is not limited to, the following:

(1) Limiting offender eligibility to first-offender, intra-family abuse, absence of violence or threat of violence, sexual abuse of short duration, absence of drug or alcohol addiction, and abuse which has resulted in no significant trauma to this child;

(2) The sentence and probation established for program participants shall be a definite sentence;

(3) As a requirement for participation in the treatment program, the offender must plead guilty to the commission of the appropriate sexual offense and agree to abide by all requirements of the probation agreement or sentence alternative. Such probation agreement or sentence alternative shall require that the offender pay for the victim's medical and psychological treatment, as needed, and for such offender's treatment in the treatment program, based upon the offender's financial ability to pay.

CHAPTER 7 SECURITY UNITS AND FORENSIC SERVICES

Part 1-- General Provisions

33-7-101 Examination of patients.

Any patient hospitalized under this chapter or held in a forensic services unit shall be examined as often as practicable but not less often than every three (3) months.

33-7-102 Credit toward sentence – Release.

(a) Whenever a person is hospitalized under Acts 1974, ch. 464, § 1, in connection with a criminal charge or conviction, wherever incarcerated, the person shall receive credit toward the satisfaction of his sentence for the time spent in the custody of the commissioner.

(b) When a patient has been transferred from the department of correction to the custody of the commissioner, the patient shall be released from the custody of the commissioner at the expiration of his sentence unless a judicial hospitalization order has been entered with respect to the patient.

33-7-103 Judicial hospitalization order as transfer of custody.

Without regard to its wording, any court order of hospitalization in a hospital or unit of a hospital shall be considered in law as a transfer of the person to the custody of the commissioner.

Part 2-- Security Units

33-7-201 Creation of forensic services units.

Subject to budgetary limitations, the commissioner shall operate in the state hospitals such secure facilities, known as forensic services units, as the commissioner may determine to be necessary for mentally ill persons, alcoholics and drug addicts who are eligible for admission to the units under this title.

33-7-202 Initiation of commitment proceedings – Findings required.

(a) If the commissioner authorizes the transfer of a voluntary patient to a forensic services unit, the superintendent of the receiving facility shall initiate commitment proceedings under § 33-6-104.

(b) In those proceedings the court shall determine, in addition to the findings required by § 33-6-104, whether the patient is substantially likely to injure such patient or others if not treated in a forensic services unit and whether treatment in such a unit is in the patient's best interest

33-7-203 Discharge from forensic services unit.

When a patient in a forensic services unit no longer meets the standards under which he was admitted to the unit, the superintendent shall cause him to be discharged or to be returned to the hospital, division or institution from which he was transferred or to be transferred to another appropriate facility or program.

Part 3-- Forensic Services

33-7-301 Evaluation of accused believed incompetent to stand trial – Judicial hospitalization proceedings – Recovery report

(a)(1) When a person charged with a criminal offense is believed to be incompetent to stand trial, or there is a question as to the person's mental capacity at the time of the commission of the crime, the criminal, circuit, or general sessions court judges may, upon their own motion or upon petition by the district attorney general or by the attorney for the defendant and after hearing, order the defendant to be evaluated on an outpatient basis by the community mental health center or licensed private practitioner designated by the commissioner to serve the court or, if the evaluation cannot be made by the center or licensed private practitioner, on an outpatient basis by the state hospital or the state-supported hospital designated by the commissioner to serve the court. If in the opinion of those performing the mental health evaluation, further evaluation and treatment is needed, the court may order the defendant hospitalized, and if in a state hospital or state-supported hospital, in the custody of the commissioner for not more than thirty (30) days for the purpose of further evaluation and treatment as it relates to competency to stand trial subject to the availability of suitable accommodations.

(2) At any stage of a felony criminal proceeding, including a pre-trial hearing, trial, sentencing, or post-conviction proceeding, if the defendant gives notice that the defendant intends to offer testimony about the defendant's mental condition, whether in support of a defense of insanity or for any other purpose, the state may move or petition the court to authorize the district attorney general to designate a qualified expert to examine the defendant. The court may authorize the district attorney general to designate a qualified expert, who is willing to be appointed, to examine the defendant, if:

(A) In the case of a pre-trial proceeding the court receives notice from an inpatient evaluator under subdivision (a)(1) that:

(i) The type or extent of assessment required exceeds the expertise or resources available to the evaluator; or

(ii) The type or extent of assessment required exceeds the scope of analysis of the defendant's competency to stand trial, satisfaction of criteria for the insanity defense, or for commitment under standards of § 33-6-104; OR

(B) In any other type of felony criminal proceeding, the court determines that examination of the defendant by a qualified expert for the state is necessary to adjudicate fairly the matter before it.

(3) The amount and payment of expert fees shall be determined and paid by the Tennessee district attorneys general conference.

(b)(1) If the court determines on the basis of the mental health evaluation and other relevant evidence:

(A) That the defendant is incompetent to stand trial because of mental illness; or

(B) When it is determined and agreed to by the attorney for the defense that the defendant is competent to stand trial but that the failure to hospitalize would create a likelihood to cause the defendant serious harm by reason of mental illness, the district attorney general or the attorney for the defense may petition the criminal court before which the case is pending or which would hear the case if the defendant were bound over to the grand jury to conduct proceedings for judicial hospitalization under § 33-6-104.

(2) Either party may demand a jury trial on the issues.

(3) The court is hereby vested with jurisdiction to conduct such proceedings.

(4) In the proceedings the court shall determine, in addition to the findings required by § 33-6-104, whether the defendant is substantially likely to injure the defendant or others if the defendant is not treated in a forensic services unit and whether treatment is in the defendant's best interest.

(5) If the court enters an order of judicial hospitalization, the defendant shall be transferred to the custody of the commissioner, and if the court finds in addition that the defendant is substantially likely to injure the defendant or others if the defendant is not treated in a forensic services unit and that treatment in such a unit is in the defendant's best interests, the defendant shall be transferred to the custody of the commissioner at a forensic services unit designated by the commissioner.

(c) When a patient admitted under subsection (b) has been hospitalized for six (6) months, and at six-month intervals thereafter, the superintendent of the hospital shall file a written report with the clerk of the court by whose order the patient was confined and shall give a copy of the report to the patient, the patient's attorney, the patient's legal guardian, if any, and to the district attorney general. The superintendent shall also send a copy of the report to the patient's:
(1) Parent;
(2) Adult child; or
(3) Spouse;
whichever is appropriate, but at least one (1) of the three (3). The report shall set forth in detail the superintendent's best judgment as to the patient's prospects for recovery, the defendant's present condition, the time required for relevant kinds of recovery, and whether there is substantial probability that the patient will become competent to stand trial in the foreseeable future.

33-7-302 Determination and notice of restored competence to stand trial.

When the superintendent determines that a patient in a state hospital, charged with a crime or subject to be tried therefor, is restored to competence to stand trial, the superintendent shall give notice of that fact to the clerk of the court by whose order he was confined and deliver the patient to the sheriff of the county from which the patient was admitted.

33-7-303 Judicial hospitalization or outpatient treatment of person judged not guilty by reason of insanity – Transfer to forensic services unit.

(a) When a person charged with a criminal offense is acquitted of the charge on a verdict of not guilty by reason of insanity at the time of the commission of the offense, the criminal court shall order the person detained for diagnosis and evaluation for a minimum of sixty (60) days and a maximum of ninety (90) days in a hospital or treatment resource.

(b)(1) Following the diagnosis and evaluation, if certification is provided that the person is committable under § 33-6-104, the district attorney general shall file a complaint in the criminal court for judicial commitment under § 33-6-104 and for an order requiring the person to participate in outpatient treatment at a treatment resource under this subsection. If certification is not provided that the person is committable under § 33-6-104, the district attorney general shall file a complaint in the criminal court for an order requiring the person to participate in outpatient treatment at a mental health facility under this subsection.

(2) Notwithstanding any provision to the contrary in this title, the hospital or treatment resource shall not release the person without specific authorization of the court while such complaint is pending until the end of the ninety (90) day maximum detention ordered under subsection (a). The hospital or treatment resource shall release the person at the expiration of the ninety (90) day detention order unless the person has been ordered committed under § 33-6-104.

(3) If the court does not commit the person under § 33-6-104 and the court determines that the person's condition resulting from mental illness is likely to deteriorate rapidly to the point that the patient will pose a substantial likelihood of serious harm as defined in § 33-6-104(a) unless treatment is continued, the court may order the person to participate in outpatient treatment at a treatment resource or with a private practitioner. Otherwise, the court may not order the person to participate in outpatient treatment. The obligation to participate in outpatient treatment continues until it is terminated by the court under subdivision (5).

(4) If the court orders the patient to participate in outpatient treatment and the person does not comply with the treatment plan, the treating professional shall notify the district attorney general of the noncompliance, and the district attorney general may move the criminal court to cite the person for civil or criminal contempt of court for the non-compliance and may file a complaint in the criminal court under the provisions of § 33-6-104. The treating professional shall file a report with the district attorney general every six (6) months as to the person's continuing need for treatment.

(5) The court shall terminate the obligation to participate in outpatient treatment when it determines that the person is no longer subject to such an obligation under subdivision (3).

(6) The court is hereby vested with jurisdiction to conduct proceedings authorized by this subsection.

(c)(1) Following the hearing conducted by the criminal court under § 33-6-104, if the court finds that the person meets the commitment standards under § 33-6-104, the court shall enter an order of judicial hospitalization and transfer the individual to the custody of the commissioner subject to departmental regulations governing release procedures.

(2) If the court further finds:

(A) That the person is substantially likely to injure such person or others if the person is not treated in a forensic services unit; and

(B) That treatment in such a unit is in the person's best interests,

the person shall be transferred into the custody of the commissioner at a forensic services unit designated by the commissioner subject to the provisions of § 33-7-203.

(d) Either party may appeal a final adjudication under this section to the court of criminal appeals.

(e) The criminal court, in a trial before a jury in which the issue of insanity at the time of the commission of the offense is raised, shall instruct the jury before it begins deliberation as to the provisions of this section.

(f) The cost of treatment at a mental health facility incurred as a result of the outpatient treatment and evaluation required in subsection (b) of this section shall be taxed as court costs.

CHAPTER 10 IMMUNITY FROM LIABILITY

33-10-101 Definitions.

As used in this part unless the context clearly requires otherwise:

(1) "Counseling center" means any nonprofit service operated at least partially with volunteer assistance which provides counseling, assistance or guidance, either in person or by telephone, to persons with mental or emotional problems; and

(2) "Counselor" means any psychiatrist, psychologist, licensed clinical psychologist, certified marital and family therapists or other professional trained in the fields of psychiatry or psychology or any nonprofessional person acting under the guidance or supervision of such professionals.

33-10-102 Immunity.

(a) No person serving as a counselor at a counseling center shall be liable, either criminally or civilly, as a result of the suicide or attempted suicide of any person consulting the counselor while the counselor is serving at the counseling center.

(b) If such counselor leaves the counseling center to provide further emergency counseling in good faith to a person who initiated such counseling at the center at such person's home or office, then such counselor shall not be liable, either criminally or civilly, as a result of the suicide or attempted suicide of such person; provided, however, that such immunity shall only apply during such emergency at such person's home or office and shall not be construed to apply during continuing or follow-up visits. The immunity granted a counselor by the preceding sentence shall be construed as being the same as but no greater than the immunity granted such a counselor while the counselor is serving at the counseling center.

Part 3-- Communications Concerning Violent Behavior of Patients

33-10-301 Definitions.

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

(1) "Mental health facility" means a health care facility licensed pursuant to chapter 2, part 5 of this title, or licensed pursuant to title 68, chapter 11. Facilities operated by the department of mental health and mental retardation are excluded from the provisions of this part; and

(2) "Qualified mental health professional" means a licensed psychologist or psychological examiner, a certified or licensed social worker, a certified marital and family therapist or a licensed professional nurse who functions as a psychiatric mental health nurse.

33-10-302 Duty to predict, warn or take precautions to provide protection – Liability.

(a) No monetary liability and no cause of action may arise against any qualified mental health professional or mental health facility for failing to predict, warn of, or take precautions to provide protection from a patient's violent behavior, unless the patient has communicated to the qualified mental health professional an actual threat of bodily harm against a clearly identified victim and the qualified mental health professional, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by such person's professional specialty under similar circumstances, determines that the patient has apparent capabilities to commit such an act.

(b) The duty to warn or take reasonable precautions to provide protection from violent behavior involving bodily harm to a clearly identified victim arises only under the limited circumstances specified in subsection (a) and shall be discharged by the qualified mental health professional or mental health facility by any one (1) of the following:

(1) Informing the clearly identified victim of the threat;

(2) Having the patient admitted on a voluntary basis to a hospital;

(3) Taking steps to seek admission of a patient in a hospital or treatment facility on an involuntary basis pursuant to chapter 6 of this title; or

(4) Pursuing a course of action consistent with current professional standards that will discharge the duty.

(c) No monetary liability and no cause of action shall arise against any qualified mental health professional or mental health facility for otherwise confidential communications disclosed to third parties in an effort to discharge a duty arising under subsection (a) according to the provisions of subsection (b).

33-10-303 Duty of employees who transmit and/or record patient communications.

Employees of mental health facilities, who are normally responsible for transmitting and/or recording communications from a patient to a qualified mental health professional and who receive communication of a threat of bodily harm against a clearly identified victim, will have discharged any duty arising under § 33-10-302(a) if they communicate the threat to a qualified mental health professional employed by the mental health facility.

33-10-304 Applicability.

The provisions of this part shall not apply to any employee of the state of Tennessee

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