At all times in the legal process, patients have the right to agree to entry of a court order detaining them in a facility. Involuntary commitment should not be confused with competency to handle financial and legal affairs. Patients have the right to refuse psychiatric medication 24 hours prior to any court hearing. Patients have the right to have: an attorney to represent them (a public defender if unable to afford private counsel), witnesses to testify for them, to cross-examine witnesses against them, and to present documentary evidence. Patients have the right to testify or to remain silent. The Rules of Evidence apply to these hearings. Patients have the right to view and copy all petitions and reports in the court file as well to have adequate time to prepare for the hearing. Hearings are not closed but the patient has the right to object to the presence of others not involved with the case. The court decides if the hearing should be closed.
Basis for Involuntary Commitment
A person can be detained on any of three grounds: likelihood of serious harm to others; likelihood of serious harm to self; or most commonly, grave disability. Grave disability is defined as a condition in which a person, as a result of a mental disorder (a) is in danger of serious physical harm resulting from a failure to provide for his or her essential human needs of health or safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety.
A person can be detained by a Designated Mental Health Professional for up to 72 hours without a court order. The 72 hours does not include weekends or legal holidays. When being interviewed by the DMHP, the patient has the right to speak to an attorney and the right not to participate in the DMHP's evaluation. The legal standard for the initial detention is probable cause.
14 Day Hearing
If the patient is not ready for release within the 72 hours, a petition for involuntary treatment is filed seeking detention for up to 14 days (calendar days). If the patient elects to have a contested hearing, then a judicial officer decides the outcome. There is no right to a jury trial. The petitioner cannot request detention for any other period of time (i.e., 9 days or 13 days). Once the court order is entered, the petitioners can release the patient before 14 days is completed if the patient is ready for release. The legal standard is preponderance of the evidence.
90 Day Hearing
If the patient requires treatment beyond 14 days, then a petition seeking detention for up to 90 days (calendar days) is filed. The petitioner cannot file for another 14 days nor for any other number of days. It has to be up to 90 days. The patient has a right to a jury trial (using a jury of 6 or 12 persons) or to have a bench trial as in the 14 day hearing. Jury trials may take up to 20 business days to occur. The patient also has the right to seek a second opinion regarding their mental status as well as the use of a professional such as a social worker to seek less restrictive placement for the patient. There may be a preliminary hearing for the court to formally advise the patient of his/her rights as well as to allow the attorneys and the court to deal with scheduling issues for contested cases. Once the 90 day order is entered, the petitioners can release the patient early if the patient is ready for release. The legal standard is clear, cogent convincing evidence.
180 Day Hearing
If the patient requires treatment beyond 90 days, then a petition for 180 days (calendar days) is filed. The petitioners cannot ask for another 90 days. It has to be 180 days. As with the 90 day hearing, the patient has the right to a jury trial, a second opinion and a preliminary hearing. The legal standard is clear, cogent and convincing evidence. The petitioners can release the patient early if the patient is ready for release.
Less Restrictive Alternatives
At any point the petitioners can ask that the patient be on a Less Restrictive Alternative (LRA), court-ordered treatment outside of the facility. Conditions the patient must comply with include living at a specific address, maintaining compliance with treatment, taking medications as prescribed, refraining from threats or acts of harm to self, others or property, as well as maintaining one's own health and safety in the community. Possession of firearms is prohibited. Failure to comply with any of the LRA conditions results in being returned to the facility for a revocation hearing. The rights in Step 1 apply to revocation hearings. If the LRA is revoked, the patient is detained at the facility for the remainder of the commitment period (e.g., revoked 30 days into a 90 day LRA = 60 days at the facility). The patient may later be re-released on a new LRA. LRAs can be extended in 180 day increments (they start with 90 or 180 days).
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