General Resources / Legal Resources / Medical
Resources / Briefing Papers / State Activity
Hospital Closures / Preventable
Tragedies / Press Room / Search
Our Site / Home
Last updated November 2003
Title 18: Health
Chapter 171: GENERAL PROVISIONS
§ 7101. Definitions
As used in this part of
this title, the following words, unless the context otherwise requires, shall
have the following meanings:
(1) "Board" means
the board of mental health;
(2)
"Commissioner" means the commissioner of developmental and mental
health services;
(3) "Custody"
means safe-keeping, protection, charge or care;
(4) "Designated
hospital" means a hospital or other facility designated by the
commissioner as adequate to provide appropriate care for the mentally ill
patient;
(5) "Elopement"
means the leaving of a designated hospital or designated program or training
school without lawful authority;
(6) "Head of a
hospital" means the administrator or persons in charge at any time;
(7) "Hospital"
means a public or private hospital or facility or part thereof, equipped and
otherwise qualified to provide in-patient care and treatment for the mentally
ill;
(8) "Individual"
means a resident of or a person in
(9) "Interested
party" means a guardian, spouse, parent, adult child, close adult
relative, a responsible adult friend or person who has the individual in his
charge or care. It also means a mental health professional, a law enforcement
officer, a licensed physician, a head of a hospital, a selectman, a town
service officer or a town health officer;
(10) "Law enforcement
officer" means a sheriff, deputy sheriff, constable, municipal police
officer or state police;
(11) "Licensed
physician" means a physician legally qualified and licensed to practice as
a physician in
(12) "Mentally
retarded individual" means an individual who has significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior;
(13) "Mental health
professional" means a person with professional training, experience and
demonstrated competence in the treatment of mental illness, who shall be a
physician, psychologist, social worker, mental health counselor, nurse or other
qualified person designated by the commissioner;
(14) "Mental
illness" means a substantial disorder of thought, mood, perception,
orientation, or memory, any of which grossly impairs judgment, behavior,
capacity to recognize reality, or ability to meet the ordinary demands of life,
but shall not include mental retardation;
(15) "Patient" means
a resident of or person in
(16) "A patient in
need of further treatment" means:
(A)
A person in need of treatment, or
(B)
A patient who is receiving adequate treatment, and who, if such treatment is
discontinued, presents a substantial probability that in the near future his
condition will deteriorate and he will become a person in need of treatment;
(17) "A person in need
of treatment" means a person who is suffering from mental illness and, as
a result of that mental illness, his capacity to exercise self-control,
judgment or discretion in the conduct of his affairs and social relations is so
lessened that he poses a danger of harm to himself or others;
(A)
A danger of harm to others may be shown by establishing that:
(i) he has inflicted or attempted
to inflict bodily harm on another; or
(ii) by his threats or actions he has placed others in
reasonable fear of physical harm to themselves; or
(iii) by his actions or inactions he has presented a danger
to persons in his care.
(B)
A danger of harm to himself may be shown by
establishing that:
(i) he has threatened or attempted
suicide or serious bodily harm; or
(ii)
he has behaved in such a manner as to indicate that he is unable, without
supervision and the assistance of others, to satisfy his need for nourishment,
personal or medical care, shelter, or self-protection and safety, so that it is
probable that death, substantial physical bodily injury, serious mental
deterioration or serious physical debilitation or disease will ensue unless
adequate treatment is afforded;
(18) "Resident of
Vermont" means:
(A)
a person who has lived continuously in Vermont for one year immediately preceding
his admission as a patient or immediately preceding his becoming a proposed
patient, or
(B)
a person who has a present intention to make
(19) "Retreat"
means the Brattleboro Retreat;
(20) "Secretary"
means the secretary of the agency of human services;
(21) "Student"
means an individual under care at the training school;
(22) "Training
school" means the
(23) "
(24) "Voluntary
patient" means an individual admitted to a hospital voluntarily or an
individual whose status has been changed from involuntary to voluntary.
(25) "Children and
adolescents with a severe emotional disturbance" means those persons
defined as such under 33 V.S.A. § 4301(3).
§ 7102. Out of state
patients
Nothing in this part of
this title shall be deemed to alter or impair the application or availability
to any patient, while hospitalized in a state outside Vermont pursuant to
contractual arrangements under section 7401(6) of this title, of any rights,
remedies, or protective safeguards provided by the law of that state or by the
Interstate Compact on Mental Health where applicable.
§ 7103. Disclosure of
information
(a) All certificates,
applications, records and reports, other than an order of a court made for the
purposes of this part of this title, and directly or indirectly identifying a
patient or former patient or an individual whose hospitalization or care has
been sought or provided under this part, together with clinical information
relating to such persons shall be kept confidential and shall not be disclosed
by any person except insofar:
(1)
as the individual identified, the individual's health care agent under
subsection 3453(c) of Title 14, or the individual's legal guardian, if any (or,
if the individual is an unemancipated minor, his or
her parent or legal guardian), shall consent in writing; or
(2)
as disclosure may be necessary to carry out any of the provisions of this part;
or
(3)
as a court may direct upon its determination that disclosure is necessary for
the conduct of proceedings before it and that failure to make disclosure would
be contrary to the public interest.
(b) Nothing in this section
shall preclude disclosure, upon proper inquiry, of information concerning
medical condition to the individual's family, clergy, physician, attorney, the individual's
health care agent under subsection 3453(c) of Title 14, a person to whom
disclosure is authorized by a validly executed durable power of attorney for
health care, or to an interested party.
(c) Any person violating
this section shall be fined not more than $2,000.00 or imprisoned for not more
than one year, or both.
(d) Nothing in 12 V.S.A. §
1612(a) shall affect the provisions of this section.
(e) Mandatory disclosure to
home providers.
(1)
With the written consent of the individual, or his or her guardian, an agency
designated by the department to provide developmental and mental health
services shall disclose all relevant information, in writing, to a potential
home care provider for that individual so that the provider has the opportunity
to make a fully informed decision prior to the placement.
(2)
If the individual, or his or her guardian, does not consent to the disclosure,
the placement will not occur unless the home care provider agrees, in writing,
to the placement, absent disclosure.
(3)
A home care provider must furnish to any person providing respite care, the
individual's relevant information obtained from the agency designated by the
department to provide developmental and mental health services, as provided in
this subsection. Where the home care provider has agreed to placement without
disclosure, the home care provider shall inform the respite provider of that
fact.
(4)
Home care and respite providers, whether or not they agree to a placement,
shall be subject to the confidentiality and disclosure requirements of
subsections (a), (b), and (c) of this section.
(5)
As used in this subsection:
(A)
"Home care provider" means a person or entity paid by an agency
designated by the department to provide developmental and mental health services,
to provide care in his or her home.
(B)
"Relevant information" means information needed to protect the
individual and others from harm, including any relevant history of violent
behavior or conduct causing danger of harm to others, as defined in subdivision
7101(17)(A) of this title, any medications presently prescribed to the
individual, and any known precursors of dangerous behavior that may cause
future harm.
(C)
"Respite provider" means a person, paid by a home care provider, to
provide care by the day or overnight in the person's home.
(6)
Any written disclosure of relevant information under this subsection shall also
include notice of the confidentiality and disclosure requirements of this
section.
(7)
Where the individual has consented to disclosure, an agency designated by the
department to provide developmental and mental health services shall provide
updated information regarding the individual to the home care provider.
§ 7104. Wrongful
hospitalization or denial of rights; fraud; elopement
Any person who wilfully causes, or conspires with or assists another to
cause:
(1)
the hospitalization of an individual knowing that the individual is not
mentally ill or in need of hospitalization or treatment as a mentally ill or
mentally retarded individual; or
(2)
the denial to any individual of any rights granted to him under this part of
this title; or
(3)
the voluntary admission to a hospital of an individual knowing that he is not
mentally ill or eligible for treatment thereby attempting to defraud the state;
or
(4)
the elopement of any patient or student from a hospital or training school or
who knowingly harbors any sick person, or who aids in abducting a patient or
student who has been conditionally discharged from the person or persons in
whose care and service that patient or student has been legally placed;
shall be fined not more
than $500.00 or imprisoned not more than one year, or both.
§ 7105. Arrest of eloped
persons
Any sheriff, deputy
sheriff, constable or officer of state or local police, and any officer or
employee of any designated hospital, designated program or training school may
arrest any person who has eloped from a designated hospital or designated
program or training school and return such person.
§ 7106. Notice of
hospitalization and discharge
Whenever a patient has been
admitted to a hospital or training school other than upon his own application,
the head of the hospital or school shall immediately notify the patient's legal
guardian, spouse, parent or parents, or nearest known relative or interested
party, if known. If the involuntary hospitalization or admission was without
court order notice shall also be given to the district court judge for the
district wherein the hospital is located. If the hospitalization or admission
was by order of any court, the head of the hospital or training school
admitting or discharging an individual shall forthwith make a report thereof to
the commissioner and to the court which entered the order for hospitalization
or admission.
§ 7107. Extramural work
Any hospital or training
school in the state dealing with mental health may do, or procure to be done,
extramural work in the way of prevention, observation, care and consultation
with respect to mental health.
§ 7108. Canteens
The superintendents of the
§ 7109.
(a) The superintendent of a
hospital or training school may sell articles made by the patients or students
in the handiwork or occupational therapy departments of the institution and the
proceeds thereof shall be credited to a revolving fund. When it is for their
best interest, the superintendent may, with the consent of the patients or
their legal representatives, employ patients or students or permit them to be
employed on a day placement basis.
(b) The consent of the
patient or the legal representative of the patient or student shall, in
consideration of the undertaking of the superintendent, contain the further
agreement that one-half the earnings of the patient or student shall be
credited to the personal account of the patient or student so employed at
interest for benefit of the patient or student and the balance shall be
credited to the fund. The superintendent shall hold and expend the fund for the
purchase of equipment and materials for the handicraft or group therapy
departments and for the educational and recreational welfare of the patient or
student group. He shall submit an annual report of the fund to the
commissioner. Balances remaining in it at the end of a fiscal year shall be
carried forward and be available for the succeeding fiscal year.
(c) For purposes of this
section the legal representative of the patient or student shall be the duly
appointed guardian, the spouse, the parents or the next of kin legally
responsible for the patient or student. In their absence, the commissioner
shall be the legal representative.
§ 7110. Certification of
mental illness
A certification of mental
illness by a licensed physician required by section 7504 of this title shall be
made by a board eligible psychiatrist, a board certified psychiatrist or a
resident in psychiatry, under penalty of perjury. In areas of the state where
board eligible psychiatrists, board certified psychiatrists or residents in
psychiatry are not available to complete admission certifications to the
§ 7111. Right to legal
counsel
In any proceeding before,
or notice to, a court of this state involving a patient or student, or a
proposed patient or student, that person shall be afforded counsel, and if the
patient or student or proposed patient or student is unable to pay for counsel,
compensation shall be paid by the state to counsel assigned by the court;
however, this section shall not apply to a proceeding under section 7505 of
this title.
§ 7112. Appeals
A patient or student may
appeal any decision of the board. The appeal shall be to the superior court of
the county wherein the hospital or school is located. The appeal shall be taken
in such manner as the supreme court may by rule provide, except that there
shall not be any stay of execution of the decision appealed from.
§ 7113. Independent
examination: payment
Whenever a court orders an
independent examination by a mental health professional or a qualified mental
retardation professional pursuant to this title or 13 V.S.A. § 4822, the cost
of the examination shall be paid by the department of developmental and mental
health services. The mental health professional or qualified mental retardation
professional may be selected by the court but the commissioner of developmental
and mental health services may adopt a reasonable fee schedule for examination,
reports and testimony.
Chapter 179: ADMISSION PROCEDURES
§ 7501. Authority to
receive patients
The head of a hospital which
has been officially designated by the commissioner may receive therein for
observation, diagnosis, care, and treatment any individual whose admission is
sought on proper application.
§ 7502. Control and
treatment of patients
A person admitted to a
hospital shall be subject to the control and treatment of the head of the
hospital and the board until his condition warrants his release, or until he
has been lawfully removed or otherwise discharged.
§ 7503. Application for
voluntary admission
(a) Any person 14 years of
age or over may apply for voluntary admission to a designated hospital for
examination and treatment.
(b) Before the person may
be admitted as a voluntary patient he shall give his consent in writing on a
form adopted by the department. The consent shall include a representation that
the person understands that his treatment will involve inpatient status, that
he desires to be admitted to the hospital, and that he consents to admission
voluntarily, without any coercion or duress.
(c) If the person is under
14 years of age, he may be admitted as a voluntary patient if he consents to
admission, as provided in subsection (b) of this section, and if a parent or
guardian makes written application.
§ 7504. Application for
emergency examination
(a) A person shall be
admitted to a designated hospital for an emergency examination to determine if
he is a person in need of treatment upon written application by an interested
party accompanied by a certificate by a licensed physician who is not the
applicant. The application and certificate shall set forth the facts and
circumstances which constitute the need for an emergency examination and which
show that the person is a person in need of treatment.
(b) The application and
certificate shall be authority for any mental health professional or law
enforcement officer to take the person into temporary custody and to transport
the person to a designated hospital for an emergency examination.
(c) For the purposes of
admission of an individual to a designated hospital for care and treatment
under this section, a head of a hospital, as provided in subsection (a) of this
section, may include a person designated in writing by the head of the hospital
to discharge the authority granted in this section. A designated person must be
an official hospital administrator, supervisory personnel or a licensed
physician on duty on the hospital premises other than the certifying physician
under subsection (a) of this section.
§ 7505. Warrant for
immediate examination
(a) In emergency
circumstances where a certification by a physician is not available without
serious and unreasonable delay, and when personal observation of the conduct of
a person constitutes reasonable grounds to believe that the person is a person
in need of treatment, and he presents an immediate risk of serious injury to
himself or others if not restrained, a law enforcement officer or mental health
professional may make an application, not accompanied by a physician's
certificate, to any district or superior judge for a warrant for an immediate
examination.
(b) The law enforcement
officer or mental health professional may take the person into temporary
custody and shall apply to the court without delay for the warrant.
(c) If the judge is
satisfied that a physician's certificate is not available without serious and
unreasonable delay, and that probable cause exists to believe that the person
is in need of an immediate examination, he may order the person to submit to an
immediate examination at a designated hospital.
(d) If necessary, the court
may order the law enforcement officer or mental health professional to
transport the person to a designated hospital for an immediate examination.
(e) Upon admission to a
designated hospital, the person shall be immediately examined by a licensed
physician. If the physician certifies that the person is a person in need of
treatment, the person shall be held for an emergency examination in accordance
with section 7508 of this title. If the physician does not certify that the person
is a person in need of treatment, he shall immediately discharge the person and
cause him to be returned to the place from which he was taken,
or to such place as the person reasonably directs.
§ 7508. Emergency
examination
(a) When a person is
admitted to a designated hospital for an emergency examination in accordance
with sections 7504 or 7505(e) of this title, he shall be examined and certified
by a psychiatrist as soon as practicable, but not later than one working day
after admission.
(b) If the person is
admitted on an application and physician's certificate, the examining
psychiatrist shall not be the same physician who signed the certificate.
(c) If the psychiatrist
does not certify that the person is a person in need of treatment, he shall
immediately discharge the person and cause him to be returned to the place from
which he was taken or to such place as the person reasonably directs.
(d) If the psychiatrist
does certify that the person is a person in need of treatment, the person's
hospitalization may continue for an additional 72 hours, at which time
hospitalization shall terminate, unless within that period:
(1)
the person has been accepted for voluntary admission under section 7503 of this
title; or
(2)
an application for involuntary treatment is filed with the appropriate court
under section 7612 of this title in which case the patient shall remain
hospitalized pending the court's decision on the application.
§ 7509. Treatment; right
of access
(a) Upon admission to the
hospital pursuant to sections 7508, 7617 or 7624 of this title, the person
shall be treated with dignity and respect and shall be given such medical and
psychiatric treatment as is indicated.
(b) The person shall be
given the opportunity, subject to reasonable limitations, to communicate with
others, including the reasonable use of a telephone.
(c) The person shall be
requested to furnish the names of persons he or she may want notified of his or
her hospitalization and kept informed of his or her status. The head of the
hospital shall see that such persons are notified of the status of the patient,
how he or she may be contacted and visited, and how they may obtain information
concerning him or her.
§ 7510. Preliminary
hearing
(a) Within five days after
a person is admitted to a designated hospital for emergency examination, he may
request the district court to conduct a preliminary hearing to determine
whether there is probable cause to believe that he was a person in need of
treatment at the time of his admission.
(b) The court shall conduct
the hearing within three working days of the filing of the request. The court
shall cause timely notice of the preliminary hearing to be given to the patient
or his attorney, the hospital and the attorney for the applicant.
(c) The individual has the
right to be present and represented by legal counsel at the preliminary
hearing.
(d) If probable cause to
believe that the individual was a person in need of treatment at the time of
his admission is established at the preliminary hearing, the individual shall
be ordered held for further proceedings in accordance with the law. If probable
cause is not established, the individual shall be ordered discharged from the
hospital and the court shall order him returned to the place from which he was
transported or to his home.
(e) Upon a showing of need
the court may grant a reasonable continuance to either the patient's attorney
or the attorney for the state.
§§ 7506, 7507. Repealed.
1977, No. 252 (Adj. Sess.), § 36.
Chapter 181: JUDICIAL PROCEEDINGS
§ 7611. Involuntary
treatment
No person may be made
subject to involuntary treatment unless he is found to be a person in need of
treatment or a patient in need of further treatment.
§ 7612. Application for
involuntary treatment
(a) An interested party
may, by filing a written application, commence proceedings for the involuntary
treatment of an individual by judicial process.
(b) The application shall
be filed in the district court of the proposed patient's residence or, in the case
of a nonresident, in any district court.
(c) If the application is
filed under sections 7508 or 7620 of this title, it shall be filed in the
district court in which the hospital is located.
(d) The application shall
contain:
(1) The name and address of the applicant;
(2)
A statement of the current and relevant facts upon which the allegation of
mental illness and need for treatment is based. The application shall be signed
by the applicant under penalty of perjury.
(e) The application shall
be accompanied by:
(1)
A certificate of a licensed physician, which shall be executed under penalty of
perjury stating that he has examined the proposed patient within five days of
the date the petition is filed, and is of the opinion that the proposed patient
is a person in need of treatment, including the current and relevant facts and
circumstances upon which the physician's opinion is based; or
(2)
A written statement by the applicant that the proposed patient refused to
submit to an examination by a licensed physician.
(f) Before an examining
physician completes the certificate of examination, he shall consider available
alternative forms of care and treatment that might be adequate to provide for
the person's needs, without requiring hospitalization.
§ 7613. Notice-Appointment
of counsel
(a) When the application is
filed, the court shall appoint counsel for the proposed patient, and transmit a
copy of the application, the physician's certificate, if any, and a notice of
hearing to the proposed patient, his attorney, guardian, or any person having
custody and control of the proposed patient, the state's attorney, or the
attorney general, and any other person the court believes has a concern for the
proposed patient's welfare. A copy of the notice of hearing shall also be
transmitted to the applicant and certifying physician.
(b) The notice of hearing
shall set forth the date and time of the hearing and shall contain a list of
the proposed patient's rights at the hearing.
(c) If the court has reason
to believe that notice to the proposed patient will be likely to cause injury
to the proposed patient or others, it shall direct the proposed patient's
counsel to give the proposed patient oral notice prior to written notice under
circumstances most likely to reduce likelihood of injury.
§ 7614. Psychiatric
examination
As soon as practicable
after notice of the commencement of proceedings is given, the court on its own
motion or upon the motion of the proposed patient or his attorney or the state
of Vermont shall authorize examination of the proposed patient by a
psychiatrist other than the physician making the original certification. The
examination and subsequent report or reports shall be paid for by the state of
§ 7615. Hearing
(a) Upon receipt of the
application, the court shall set a date for the hearing to be held within ten
days from the date of the receipt of the application or 20 days from the date
of the receipt of the application if a psychiatric examination is ordered under
section 7614 unless the hearing is continued by the court.
(b) The court may grant
either party an extension of time of up to seven days for good cause.
(c) The hearing shall be
conducted according to the rules of evidence applicable in civil actions in the
district courts of the state, and to an extent not inconsistent with this part,
the rules of civil procedure of the state shall be applicable.
(d) The applicant and the
proposed patient shall have a right to appear at the hearing to testify. The
attorney for the state and the proposed patient shall have the right to
subpoena, present and cross-examine witnesses, and present oral arguments. The
court may, at its discretion, receive the testimony of any other person.
(e) The proposed patient
may at his election attend the hearing, subject to reasonable rules of conduct,
and the court may exclude all persons not necessary for the conduct of the
hearing.
§ 7616. Appearance by
state; burden of proof
(a) The state shall appear
and be represented by the state's attorney for the county in which the hearing
takes place or by the attorney general at his discretion.
(b) The state shall have
the burden of proving its case by clear and convincing evidence.
(c) The attorney for the
state shall have the authority to dismiss the application at any stage of the
proceeding.
§ 7617. Findings; order
(a) If the court finds that
the proposed patient was not a person in need of treatment at the time of
admission or application or is not a patient in need of further treatment at
the time of the hearing, the court shall enter a finding to that effect and
shall dismiss the application.
(b) If the proposed patient
is found to have been a person in need of treatment at the time of admission or
application and a patient in need of further treatment at the time of the
hearing, the court may order the person:
(1)
hospitalized in a designated hospital;
(2)
hospitalized in any other public or private hospital if he and the hospital
agree; or
(3)
to undergo a program of treatment other than hospitalization.
(c) Prior to ordering any
course of treatment, the court shall determine whether there exists an
available program of treatment for the person which is an appropriate
alternative to hospitalization. The court shall not order hospitalization
without a thorough consideration of available alternatives.
(d) Before making its
decision, the court shall order testimony by an appropriate representative of a
hospital, a community mental health agency, public or private entity or agency
or a suitable person, who shall assess the availability and appropriateness for
the individual of treatment programs other than hospitalization.
(e) Prior to ordering the
hospitalization of a person, the court shall inquire into the adequacy of
treatment to be provided to the person by the hospital. Hospitalization shall
not be ordered unless the hospital in which the person is to be hospitalized can
provide him with treatment which is adequate and appropriate to his condition.
(f) Preference between
available hospitals shall be given to the hospital which is located nearest to
the person's residence except when the person requests otherwise or there are
other compelling reasons for not following the preference.
§ 7618. Order; nonhospitalization
(a) If the court finds that
a treatment program other than hospitalization is adequate to meet the person's
treatment needs, the court shall order the person to receive whatever treatment
other than hospitalization is appropriate for a period of 90 days.
(b) If at any time during
the specified period it comes to the attention of the court, either that the
patient is not complying with the order, or that the alternative treatment has
not been adequate to meet the patient's treatment needs, the court may, after
proper hearing:
(1)
Consider other alternatives, modify its original order and direct the patient
to undergo another program of alternative treatment for the remainder of the
90-day period; or
(2)
Enter a new order directing that the patient be hospitalized for the remainder
of the 90-day period.
§ 7619. Order;
hospitalization
An initial order of
hospitalization shall be for a period of 90 days from the date of the hearing.
§ 7620. Application for
continued treatment
(a) If, prior to the
expiration of any order issued in accordance with section 7623 of this title,
the commissioner believes that the condition of the patient is such that the
patient continues to require treatment, the commissioner shall apply to the
court for a determination that the patient is a patient in need of further
treatment and for an order of continued treatment.
(b) An application for an
order authorizing continuing treatment shall contain a statement setting forth
the reasons for the commissioner's determination that the patient is a patient
in need of further treatment, a statement describing the treatment program
provided to the patient and the results of that course of treatment.
(c) Any order of treatment
issued in accordance with section 7623 of this title shall remain in force
pending the court's decision on the application.
§ 7621. Hearing on
application for continued treatment; orders
(a) The hearing on the
application for continued treatment shall be held in accordance with the
procedures set forth in sections 7613, 7614, 7615 and 7616 of this title.
(b) If the court finds that
the patient is a patient in need of further treatment and requires
hospitalization it shall order hospitalization for up to one year.
(c) If the court finds that
the patient is a patient in need of further treatment but does not require
hospitalization, it shall order nonhospitalization
for up to one year.
(d) If at any time during
the period of nonhospitalization ordered under
subsection (c) of this section, it comes to the attention of the court, that
the person is not complying with the order, or that the alternative treatment
has not been adequate to meet the patient's treatment needs, the court may, after
proper hearing:
(1)
Consider other treatments not involving hospitalization, modify its original
order, and direct the patient to undergo another program of alternative
treatment for an indeterminate period, up to the expiration date of the
original order; or
(2)
Order that the patient be hospitalized, up to the expiration date of the
original order.
(e) If the court finds that
the patient is not a patient in need of further treatment, it shall order the
patient discharged.
(f) This section shall not
be construed to prohibit the court from issuing subsequent orders after a new
application is filed pursuant to section 7620 of this title.
§ 7622. Expert testimony
(a) A mental health
professional testifying at hearings conducted under this part may, if appropriately
qualified, give opinion testimony and, notwithstanding section 1612 of Title
12, describe any information which he acquired in attending the patient.
(b) The facts or data in
the particular case, upon which an expert bases an opinion or inference, may be
those perceived by or made known to him at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible in
evidence.
§ 7623. Orders; custody
All court orders of
hospitalization, nonhospitalization and continued
treatment shall be directed to the commissioner and shall admit the patient to
his care and custody for the period specified.
§ 7624. Petition for
involuntary medication
(a) The commissioner may
commence an action for the involuntary medication of a person who is refusing
to accept psychiatric medication and meets any one of the following three
conditions:
(1)
has been placed in the commissioner's care and custody pursuant to section 7619
of this title or subsection 7621(b) of this title;
(2)
has previously received treatment under an order of hospitalization and is
currently under an order of nonhospitalization; or
(3)
has been committed to the custody of the commissioner of corrections as a
convicted felon and is being held in a correctional facility which is a
designated facility pursuant to section 7628 of this title and for whom the
department of corrections and the department of developmental and mental health
services have jointly determined that involuntary medication would be
appropriate pursuant to subdivision 907(4)(H) of Title
28.
(b) A petition for
involuntary medication shall be filed in the family court in the county in
which the person is receiving treatment.
(c) The petition shall
include a certification from the treating physician, executed under penalty of perjury, that includes the following information:
(1)
the nature of the person's mental illness;
(2)
the necessity for involuntary medication, including the person's competency to
decide to accept or refuse medication;
(3)
any proposed medication, including the method, dosage range, and length of
administration for each specific medication;
(4)
a statement of the risks and benefits of the proposed medications, including
the likelihood and severity of adverse side effects and its effect on:
(A) the person's prognosis with and without the proposed
medications; and
(B) the person's health and safety, including any pregnancy;
(5)
the current relevant facts and circumstances, including any history of
psychiatric treatment and medication, upon which the physician's opinion is
based;
(6)
what alternate treatments have been proposed by the doctor, the patient or
others, and the reasons for ruling out those alternatives; and
(7)
whether the person has executed a durable power of attorney for health care in
accordance with the provisions of chapter 121 of Title 14, and the identity of
the health care agent designated by the durable power of attorney.
(d) A copy of the durable
power of attorney, if available, shall be attached to the petition.
§ 7625. Hearing on
petition for involuntary medication; burden of proof
(a) A hearing on a petition
for involuntary medication shall be held within seven days of filing and shall
be conducted in accordance with sections 7613, 7614, 7615(b)-(e) and 7616 of
this title.
(b) In a hearing conducted
pursuant to this section, section 7626 or 7627 of this title, the commissioner
has the burden of proof by clear and convincing evidence.
(c) In determining whether
or not the person is competent to make a decision regarding the proposed
treatment, the court shall consider whether the person is able to make a
decision and appreciate the consequences of that decision.
§ 7626. Durable power of
attorney
(a) If a person who is the
subject of a petition filed under section 7624 of this title has executed a
durable power of attorney in accordance with the provisions of chapter 121 of Title
14 for health care, the court shall suspend the hearing and enter an order
pursuant to subsection (b) of this section, if the court determines that:
(1)
the person is refusing to accept psychiatric medication;
(2)
the person is not competent to make a decision regarding the proposed
treatment; and
(3)
the decision regarding the proposed treatment is within the scope of the valid,
duly executed durable power of attorney for health care.
(b) An order entered under
subsection (a) of this section shall authorize the commissioner to administer
treatment to the person, including involuntary medication in accordance with
the direction set forth in the durable power of attorney or provided by the
health care agent acting within the scope of authority granted by the durable
power of attorney. If hospitalization is necessary to effectuate the proposed
treatment, the court may order the person to be hospitalized.
(c) In the case of a person
subject to an order entered pursuant to subsection (a) of this section, and
upon the certification by the person's treating physician to the court that the
person has received treatment or no treatment consistent with the durable power
of attorney for health care for 45 days after the order under subsection (a) of
this section has been entered, then the court shall reconvene the hearing on
the petition.
(1)
If the court concludes that the person has experienced, and is likely to
continue to experience, a significant clinical improvement in his or her mental
state as a result of the treatment or nontreatment
directed by the durable power of attorney for health care, or that the patient
has regained competence, then the court shall enter an order denying and
dismissing the petition.
(2)
If the court concludes that the person has not experienced a significant
clinical improvement in his or her mental state, and remains incompetent then
the court shall consider the remaining evidence under the factors described in
subdivisions 7627(c)(1)-(5) of this title and render a decision on whether the
person should receive medication.
§ 7627. Court findings;
orders
(a) The court shall issue
an order regarding all possible findings pursuant to this section, and for
persons subject to a petition pursuant to subdivision 7624(a)(3) of this title
the court shall first find that the person is a person in need of treatment as
defined by subdivision 7101(17) of this title.
(b) If a person who is the
subject of a petition filed under section 7625 of this title has not executed a
durable power of attorney, the court shall follow the person's competently
expressed written or oral preferences regarding medication, if any, unless the
commissioner demonstrates that the person's medication preferences have not led
to a significant clinical improvement in the person's mental state in the past
within an appropriate period of time.
(c) If the court finds that
there are no medication preferences or that the person's medication preferences
have not led to a significant clinical improvement in the person's mental state
in the past within an appropriate period of time, the court shall consider at a
minimum, in addition to the person's expressed preferences, the following
factors:
(1)
The person's religious convictions and whether they contribute to the person's
refusal to accept medication.
(2)
The impact of receiving medication or not receiving medication on the person's
relationship with his or her family or household members whose opinion the
court finds relevant and credible based on the nature of the relationship.
(3)
The likelihood and severity of possible adverse side effects from the proposed
medication.
(4)
The risks and benefits of the proposed medication and its effect on:
(A) the person's prognosis; and
(B) the person's health and safety, including any pregnancy.
(5)
The various treatment alternatives available, which may or may not include
medication.
(d) If the court finds that
the person is competent to make a decision regarding the proposed treatment or
that involuntary medication is not supported by the factors in subsection (c)
of this section, the court shall enter a finding to that effect and deny the
petition.
(e) If the court finds that
the person is incompetent to make a decision regarding the proposed treatment
and that involuntary medication is supported by the factors in subsection (c)
of this section, the court shall make specific findings stating the reasons for
the involuntary medication by referencing those supporting factors.
(f) If the court grants the
petition, in whole or in part, the court shall enter an order authorizing the
commissioner to administer involuntary medication to the person. The order
shall specify the types of medication, the dosage range, length
of administration and method of administration for each. The order for
involuntary medication shall not include electric convulsive therapy, surgery
or experimental medications. The order shall require the person's treatment
provider to conduct monthly reviews of the medication to assess the continued
need for involuntary medication, the effectiveness of the medication, the
existence of any side effects, and shall document this review in detail in the
patient's chart.
(g) For a person receiving
treatment pursuant to an order of hospitalization, the commissioner may
administer involuntary medication as authorized by this section to the person
for up to 90 days, unless the court finds that an order is necessary for a
longer period of time. Such an order shall not be longer than the duration of
the current order of hospitalization.
(h) For a person who had
received treatment under an order of hospitalization and is currently receiving
treatment pursuant to an order of nonhospitalization,
if the court finds that without an order for involuntary medication there is a
substantial probability that the person would continue to refuse medication and
as a result would pose a danger of harm to self or others, the court may order
hospitalization of the person for up to 72 hours to administer involuntary
medication as ordered under this section.
(i)
The court may authorize future 72-hour hospitalizations of a person subject to
an order under subsection (h) of this section to administer involuntary
medication for 90 days following the initial hospitalization, unless the court
finds that an involuntary medication order is necessary for a longer period of
time. Such an order shall not be longer than the duration of the current order
of nonhospitalization.
(j) A future administration
of involuntary medication authorized by the court under subsection (i) of this section shall occur as follows:
(1)
The treating physician shall execute and file with the commissioner a
certification executed under penalty of perjury that states all the following:
(A)
The person has refused medication.
(B)
The person is not competent to make a decision regarding medication and to
appreciate the consequences.
(C)
The proposed medications, the dosage range, length of administration and method
of administration.
(D)
The substantial probability that in the near future the person will pose a
danger of harm to self or others if not hospitalized and involuntarily
medicated.
(2)
Depending on the type of medication ordered, the commissioner shall provide two
to 14-days' notice, as set forth in the initial court order, to the court, the
person and the person's attorney. The notice shall be given within 24 hours of
receipt by the commissioner of the physician's certification and shall state
that the person may request an immediate hearing to contest the order. The person
may be hospitalized in a designated hospital on the date specified in the
notice for up to 72 hours in order to administer involuntary medication.
(k) An order for
involuntary medication issued under this section shall be effective
concurrently with the current order of commitment issued pursuant to section
7623 of this title.
(l) The treating physician
shall provide written notice to the court to terminate the order when
involuntary medication is no longer necessary.
(m) At any time, the person
may petition the court for review of the order.
(n) As used in this section
"household members" means persons living together or sharing
occupancy.
§ 7628. Protocol
The department of
developmental and mental health services shall develop and adopt by rule a
strict protocol to insure the health, safety, dignity and respect of patients
subject to administration of involuntary psychiatric medications in any
designated hospital. This protocol shall be followed by all designated
hospitals administering involuntary psychiatric medications.
§ 7629. Legislative
intent
(a) It is the intention of
the general assembly to recognize the right of a legally competent person to
determine whether or not to accept medical treatment, including involuntary
medication, absent an emergency or a determination that the person is
incompetent and lacks the ability to make a decision and appreciate the
consequences.
(b) This act protects this
right through a judicial proceeding prior to the use of nonemergency
involuntary medication and by limiting the duration of an order for involuntary
treatment to no more than one year. The least restrictive conditions consistent
with the person's right to adequate treatment shall be provided in all cases.
(c) It is the policy of the
general assembly to work towards a mental health system that does not require
coercion or the use of involuntary medication.
(d) This act will render
the J. L. v. Miller consent judgment no longer applicable.
§§ 7601-7608. Repealed.
1977, No. 252 (Adj. Sess.), § 36.
§§ 7609, 7610. [Reserved
for future use.].
Chapter 183: CARE AND TREATMENT
§ 7701. Notice of rights
The head of a hospital
shall provide reasonable means and arrangements, including the posting of
excerpts from relevant statutes, for informing patients of their right to
discharge and other rights and for assisting them in making and presenting
requests for discharge.
§ 7702. Repealed. 1977,
No. 252 (Adj. Sess.), § 36.
§ 7703. Treatment
(a) Outpatient or partial
hospitalization shall be preferred to inpatient treatment. Emergency
involuntary treatment shall be undertaken only when clearly necessary.
Involuntary treatment shall be utilized only if voluntary treatment is not
possible.
(b) The department shall
establish minimum standards for adequate treatment as provided in this section.
§ 7704. Mechanical
restraints
Mechanical restraints shall
not be applied to a patient unless it is determined by the head of the hospital
or his designee to be required by the medical needs of the patient or the
hospital. Every use of a mechanical restraint and the reasons therefor shall be made a part of the clinical record of the
patient under the signature of the head of the hospital or his designee.
§ 7705. Communication
and visitation
(a) Subject to the general rules
and regulations of the hospital and except to the extent that the head of the
hospital determines that it is necessary for the medical welfare or needs of
the patient or the hospital to impose restrictions, every patient is entitled:
(1)
to communicate by sealed mail or otherwise with persons, including official
agencies, inside or outside the hospital;
(2)
to receive visitors and to make and receive telephone calls; and
(3)
to exercise all civil rights, including the right to dispose of property, execute
instruments, make purchases, enter contractual relationships, and vote on his
own initiative, unless he has been adjudicated incompetent and has not been
restored to legal capacity.
(b) Notwithstanding any
limitations or restrictions authorized by this section on the right of
communication, every patient is entitled to communicate by sealed mail with the
board, the commissioner, his attorney, his clergyman and the district judge, if
any, who ordered his hospitalization.
§ 7706. Legal competence
No determination that a
person requires treatment and no order of the court authorizing hospitalization
or alternative treatment shall lead to a presumption of legal incompetence for
matters other than treatment.
§ 7707. Record of
restrictions
Any limitation imposed by
the head of a hospital on the exercise of civil rights by a patient and the
reasons for the limitation shall be made a part of the clinical record of the
patient.
§ 7708. Surgical
operations
If the superintendent finds
that a patient supported by the state requires a surgical operation or that a
surgical operation would promote the possibility of his discharge from the
hospital, the superintendent, with the consent of the patient, his attorney or
his legally appointed guardian, if any, or next of kin, if any be known, may
make the necessary arrangements with some surgeon and hospital for the
operation. The expense of the operation shall be borne by the state in the same
proportion as the patient is supported by the state.
§ 7709. Change from
involuntary to voluntary
At any time, a patient may,
with the permission of the head of the hospital, have his status changed from
involuntary to voluntary upon making application as provided in section 7503 of
this title.
§ 7710. Visits by clergy
or attorney
A patient's clergyman or an
attorney at law retained by or on behalf of any patient or appointed for him by
any court shall be admitted to visit at all reasonable times.
§ 7711.
Repealed. 1977, No. 252 (Adj. Sess.), § 36.
Chapter 185: AUTOMATIC REVIEW
§ 7801. Application for
discharge
(a) A patient who has been
ordered hospitalized may apply for discharge to the district court within which
the hospital is located. A patient who has been ordered to receive treatment
other than hospitalization may apply for discharge to the district court which
originally entered the order; the court in its discretion may transfer the
matter, for the convenience of witnesses or for other reasons, to the district
court within which the treatment is centered or in which the patient resides.
Applications may be made no sooner than 90 days after the issuance of an order
of continued treatment or no sooner than six months after the filing of a
previous application under this section.
(b) The hearing on the
application for discharge shall be held in accordance with the procedures set
forth in sections 7613, 7614, 7615 and 7616 of this title.
(c) If the court finds that
the applicant is not a patient in need of further treatment, it shall order the
patient discharged.
(d) If the court finds that
the applicant is a patient in need of further treatment, it shall deny the
application and order continued treatment for an indeterminate period in
accordance with section 7621(b), (c) and (d) of this title.
§ 7802. Administrative
review
The head of the hospital
and the board shall cause the condition of every patient to be reviewed as
regularly as practicable, but not less often than every six months, and
whenever the head of a hospital or the board certifies that the patient is not
a patient in need of further treatment, the patient shall be discharged. If
requested by the patient all hearings by the board on the issue of granting a
discharge shall be on reasonable notice to the patient's attorney who shall be
afforded an opportunity to attend. In the absence of any attorney the board
shall notify the district court and an attorney shall be appointed as provided
in section 7111 of this title.
§ 7803.
Repealed. 1977, No. 252 (Adj. Sess.), § 36.
Chapter 189: RELEASE AND DISCHARGE
§ 8003. Personal needs
of patient
The commissioner shall make
any necessary arrangements to insure:
(1)
that no patient is discharged or granted a conditional release from a hospital
without suitable clothing; and
(2)
that any indigent patient discharged or granted a conditional release is
furnished suitable transportation for his return home and an amount of money as
may be prescribed by the head of the hospital to enable the patient to meet his
immediate needs.
§ 8004. Repealed. 1977,
No. 252 (Adj. Sess.), § 36.
§ 8005. Habeas corpus
Any individual hospitalized
under this title or his attorney or an interested party may apply for a writ of
habeas corpus from any court generally empowered to issue the writ in the
jurisdiction in which he is detained.
§ 8006. Visits
(a) The head of a hospital
may grant a visit permit of not more than 30 days to any patient under his
charge.
(b) The granting and
revocation of visits shall be made in accordance with rules and procedures
adopted by the head of the hospital.
§ 8007. Conditional
discharges
(a) The board or the head
of a hospital may conditionally discharge from a hospital any patient who may
be safely and properly cared for in a place other than the hospital.
(b) A conditional discharge
may extend for a term of six months, but shall not exceed 60 days unless the
head of the hospital determines that a longer period will materially improve
the availability of a program of treatment which is an alternative to
hospitalization.
(c) Unless sooner revoked
or renewed, a conditional discharge shall become absolute at the end of its
term.
(d) A conditional discharge
may be granted subject to the patient's agreement to participate in outpatient,
after-care, or follow-up treatment programs, and shall be subject to such other
conditions and terms as are established by the granting authority.
(e) Each patient granted a
conditional discharge shall be provided, so far as practicable and appropriate,
with continuing treatment on an outpatient or partial hospitalization basis.
(f) Each patient granted a
conditional discharge shall be given a written statement of the conditions of
his release, the violation of which can cause revocation.
(g) A conditional discharge
may be renewed by the granting authority at any time before it becomes absolute
if the head of a hospital first determines that such renewal will substantially
reduce the risk that the patient will become a person in need of treatment in
the near future.
§ 8008. Revocation of
conditional discharge
(a) The board or the head of
the hospital may revoke a conditional discharge at any time before that
discharge becomes absolute if the patient fails to comply with the conditions
of the discharge.
(b) A revocation by the
board or the head of the hospital shall authorize the return of the patient to
the hospital and shall be sufficient warrant for a law enforcement officer or
mental health professional to take the patient into custody and return him to
the hospital from which he was conditionally discharged.
(c) Immediately upon his return
to the hospital, the patient shall be examined by a physician who shall orally
explain to the patient the purpose of the examination and the reasons why the
patient was returned to the hospital.
(d) If the examining
physician certifies in writing to the head of the hospital that, in his
opinion, the patient is a person in need of treatment, setting forth the recent
and relevant facts supporting this opinion, the revocation shall become
effective and the patient shall be readmitted to the hospital. If the examining
physician does not so certify, the revocation shall be cancelled and the
patient shall be returned to the place from which he was taken.
(e) If the patient is
readmitted to the hospital, he may apply immediately for a judicial review of
his admission, and he shall be given a written notice of this right and of his
right to legal counsel.
§ 8009. Administrative
discharge
(a) The head of the
hospital may at any time discharge a voluntary or judicially hospitalized
patient whom he deems clinically suitable for discharge.
(b) The head of the
hospital shall discharge a judicially hospitalized patient when the patient is
no longer a patient in need of further treatment. When a judicially
hospitalized patient is discharged, the head of the hospital shall notify the
applicant, the certifying physician and the court and anyone who was notified
at the time the patient was hospitalized.
(c) A person responsible
for providing treatment other than hospitalization to an individual ordered to
undergo a program of alternative treatment, under sections 7618 or 7621 of this
title, may terminate the alternative treatment to the individual if the
provider of this alternative treatment considers him clinically suitable for
termination of treatment. Upon termination of alternative treatment, the court
shall be so notified by the provider of the alternative treatment.
§ 8010. Voluntary
patients; discharge; detention
(a) If a voluntary patient gives
notice in writing to the head of the hospital of his desire to leave the
hospital, he shall promptly be released unless he agreed in writing at the time
of his admission that his release could be delayed.
(b) In that event and if
the head of the hospital determines that the patient is a patient in need of
further treatment, the head of the hospital may detain the patient for a period
not to exceed four days from receipt of the notice to leave. Before expiration
of the four-day period the head of the hospital shall either release the
patient or apply to the district court in the district in which the hospital is
located for the involuntary admission of the patient. The patient shall remain
in the hospital pending the court's determination of the case.
(c) If the patient is under
18 years of age, the notice to leave may be given by the patient or his
attorney or the person who applied for admission, provided the minor consents
thereto.
§§ 8001, 8002. Repealed.
1977, No. 252 (Adj. Sess.), § 36.
general
resources | legal resources | medical
resources | briefing papers | state activity
hospital closures | preventable
tragedies | press room | search
| home
Treatment Advocacy
CenterThe contents of TAC's website are copyrighted by the Treatment Advocacy Center unless otherwise indicated. All rights reserved and content may be reproduced, downloaded, disseminated, or transferred, for single use, or by nonprofit organizations for educational purposes only, if correct attribution is made. TAC is an I.R.C. § 501(c)(3) tax-exempt corporation. Donations are appreciated and are eligible for the charitable contribution deduction under the provisions of I.R.C. § 170. Please note that TAC does not accept funding from pharmaceutical companies or entities involved in the sale, marketing, or distribution of such products.
703 294 6001/6002 (phone) | 703 294 6010 (fax) | www.treatmentadvocacycenter.org (website)
info@treatmentadvocacycenter.org (general email) | press@treatmentadvocacycenter.org (press contact)
webmaster@treatmentadvocacycenter.org (webmaster)