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Last updated December 2003
Chapter 52 – COMMITMENT, DISCHARGE
Article 1 – Commitment
of Mentally Ill Persons Generally.
Section 22-52-1.1 Definitions
When used in this article, the following terms shall have
the following meanings, respectively, unless the context clearly indicates
otherwise:
(1) Mental illness.
A psychiatric
disorder of thought and/or mood which significantly impairs judgment, behavior,
capacity to recognize reality, or ability to cope with the ordinary demands of
life. Mental illness, as used herein, specifically
excludes the primary diagnosis of epilepsy, mental retardation, substance
abuse, including alcoholism, or a developmental disability.
(2) State mental health facility.
A mental health facility operated by
the Alabama State Department of Mental Health and Mental Retardation.
(3) Designated mental health facility.
A mental health facility other than
a state mental health facility designated by the State Department of Mental Health
and Mental Retardation to receive persons for evaluation, examination,
admission, detention or treatment pursuant to the provisions of this article.
(4) Commissioner.
The Commissioner
of the Alabama State Department of Mental Health and Mental Retardation.
(5) Outpatient treatment.
Treatment being
provided to a person in a nonresidential setting and who is not admitted for
24-hour-a-day care.
(6) Inpatient treatment.
Treatment being
provided to a person at a state mental health facility or a designated mental
health facility which has been specifically designated by the department for
inpatient treatment.
(7) Respondent.
A person for which
a petition for commitment to mental health services has been filed.
(8) Department.
The Alabama State
Department of Mental Health and Mental Retardation.
(9) Involuntary commitment.
Court ordered mental health services
in either an outpatient or inpatient setting.
Section 22-52-1.2 Filing and contents
of petition seeking involuntary commitment of another.
(a) Any person may file a petition seeking the involuntary
commitment of another person. The petition shall be filed in the probate court
of the county in which the respondent is located. The petition shall be in
writing, executed under oath, and shall include the following information:
(1) The name and address, if known,
of the respondent.
(2) The name and address, if known,
of the respondent's spouse, legal counsel, or next-of-kin.
(3) That the petitioner has reason
to believe the respondent is mentally ill.
(4) That the beliefs of the
petitioner are based on specific behavior, acts, attempts, or threats, which
shall be specified and described in detail.
(5) The names and addresses of other
persons with knowledge of respondent's mental illness who
may be called as witnesses.
The petition may be accompanied by
any other relevant information.
(b) The home address and the telephone number of the
petitioner shall be excluded from the copy of the petition seeking the
involuntary commitment provided to the respondent,
however, if there is no other available address to contact the petitioner, then
the home address of the petitioner shall be provided.
Section 22-52-2 Review of petition by
probate judge; examination of petitioner; dismissal of petition without further
proceedings.
(a) When any petition is filed seeking the involuntary
commitment of a respondent, the probate judge shall immediately review the
petition and shall require the petitioner to be sworn and answer under oath
questions regarding the petition and the respondent.
(b) If it appears from the face of the petition or from the
testimony of the petitioner that the petition is totally without merit, the
probate judge shall order the petition dismissed without further proceedings.
Section 22-52-3 Service of petition and order setting petition for hearing upon person sought
to be committed; contents of notice.
When any petition has been filed seeking the involuntary
commitment of a respondent and such petition has been reviewed by the probate
judge, the probate judge shall order the sheriff of the county in which the
respondent is located to serve a copy of the petition, together with a copy of
the order setting the petition for a hearing, upon the respondent. Said notice
shall include the date, time and place of the hearing; a clear statement of the
purpose of the proceeding and the possible consequences to the subject thereof;
the alleged factual basis for the proposed commitment; a statement of the legal
standards upon which commitment is authorized; and a list of the names and
addresses of the witnesses who may be called to testify in support of the
petition. The hearing shall be preceded by adequate notice to the respondent.
Section 22-52-4 Appointment of attorney and
guardian ad litem for person sought to be committed; statements, etc., of
person in presence of judge, prior to obtaining services of attorney, not to be
considered by judge.
(a) At the time when any petition has been filed seeking the
involuntary commitment of a respondent, the probate judge shall appoint a
guardian ad litem to represent and to protect the rights of the respondent, and
shall determine if the respondent has the funds with which to employ an attorney
to represent the respondent and if the respondent has the mental ability to
secure the services of an attorney. If the respondent does not have funds with
which to employ an attorney or does not have the mental ability to secure the
services of an attorney, the probate judge shall appoint an attorney, who may
be the same person as the guardian ad litem, to represent the respondent. The
probate judge shall immediately inform the attorney so appointed of his
appointment.
(b) No statement made or act done
by the respondent in the presence of the probate judge prior to the respondent
obtaining the services of an attorney, by appointment or otherwise, shall be
considered by the probate judge in determining whether the respondent should be
committed.
Section 22-52-5 Appointment by probate
judge of attorney to appear in support of petition; employment by petitioners
of attorney to appear in support of petition.
The probate judge shall appoint an attorney to serve as the
advocate in support of the petition to commit in all matters regarding a
petition to commit. If the person or persons filing a petition to have a person
committed wish to employ an attorney of their own choosing to appear in support
of the petition, they may do so, and such attorney shall serve in lieu of
attorney appointed by the probate judge.
Section 22-52-6 Notification of
Department of Mental Health and Mental Retardation or other public facility of
petition, date of final hearing, etc.
(a) When a petition is filed seeking the involuntary
commitment of a respondent, the probate judge with whom the petition is filed
shall notify the department or designated mental health facility of the
pendency of the petition in the manner and with such other information as
designated by the department.
(b) The probate judge shall notify the department or a
designated mental health facility of the date of the final hearing on the
petition to commit.
Section 22-52-7 Restrictions on imposition of limitations upon liberty of person sought
to be committed pending hearings; ordering, etc., of examinations of person
sought to be committed; supervision of temporary treatment.
(a) When a petition has been filed seeking to have
limitations placed upon the liberty of a respondent pending the outcome of a
final hearing on the merits, the probate judge shall order the sheriff of the
county in which the respondent is located to serve a copy of the petition upon
the respondent and to bring the respondent before the probate judge instanter.
When any respondent against whom a petition has been filed seeking to have
limitations placed upon the respondent's liberty pending the outcome of a full
and final hearing on the merits is initially brought before the probate judge, the
probate judge shall determine from an interview with the respondent and with
other available persons what limitations, if any, shall be imposed upon the
respondent's liberty and what temporary treatment, if any, shall be imposed
upon the respondent pending further hearings. If limitations on the
respondent's liberty are ordered, the probate judge may order the respondent
detained under the provisions of this section at a designated mental health
facility or a hospital.
(b) No limitations shall be placed upon the respondent's
liberty nor treatment imposed upon the respondent unless such limitations are
necessary to prevent the respondent from doing substantial and immediate harm
to himself or to others or to prevent the respondent from leaving the jurisdiction
of the court. No respondent shall be placed in a jail or other facility for
persons accused of or convicted of committing crimes.
(c) The probate judge shall order the respondent to appear
at the times and places set for hearing the petition and may order the
respondent to appear at designated times and places to be examined by licensed
medical doctors or qualified mental health professionals. If the respondent
does not appear as ordered by the probate judge, the probate judge may order
the sheriff of the county in which the respondent is located to take the
respondent into custody and compel the respondent's attendance as ordered by
the probate judge. If temporary treatment or admittance to a hospital is
ordered for the respondent, such treatment shall be supervised by a licensed
medical doctor or qualified mental health professional who has willingly
consented to treat the respondent, and admission to a hospital shall be ordered
by a licensed medical doctor who has willingly consented to admit and treat the
respondent.
Section 22-52-8 Holding of probable
cause and final hearings generally.
(a) When any respondent sought to be committed has any
limitation imposed upon his liberty or any temporary treatment imposed upon him
by the probate judge pending final hearings on such petition, the probate
judge, at the time such limitation or treatment is imposed, shall set a
probable cause hearing within seven days of the date of such imposition. If, at
such probable cause hearing, the probate judge finds that probable cause exists
that the respondent should be detained temporarily and finds that temporary
treatment would be in the best interest of the respondent, the probate judge
shall enter an order so stating and setting the date, time and place of a final
hearing on the merits of such petition.
(b) The final hearing shall be held within 30 days of the
date that the respondent was served with a copy of the petition seeking to
commit the respondent.
(c) If temporary treatment or admittance to a hospital is
ordered for any respondent, such treatment shall be supervised by a licensed
medical doctor or qualified mental health professional who has willingly
consented to treat the respondent, and admission to a hospital shall be ordered
by a licensed medical doctor who has willingly consented to admit and treat the
respondent.
Section 22-52-9 Conduct of hearings.
At all hearings, including probable cause hearings,
conducted by the probate judge in relation to a petition to involuntarily
commit a respondent, the following rules shall apply:
(1) The respondent shall be present
unless, prior to the hearing, the attorney for the respondent has filed in
writing a waiver of the presence of the respondent on the ground that the
presence of the respondent would be dangerous to the respondent's physical or
mental health or that the respondent's conduct could reasonably be expected to
prevent the hearing from being held in an orderly manner, and the probate judge
has judicially found and determined from evidence presented in an adversary
hearing that the respondent is so mentally or physically ill as to be incapable
of attending such proceedings. Upon such findings an order shall be entered
approving the waiver.
(2) The respondent shall have the
right to compel the attendance of any witness who may be located anywhere in
the State of Alabama and to offer evidence including the testimony of
witnesses, to be confronted with the witnesses in support of the petition, to
cross-examine them and to testify in his own behalf, but the respondent shall
not be compelled to testify against himself. The attorney representing the
respondent shall be vested with all of the rights of said respondent during all
of the hearings if the respondent is not present in court to exercise his rights.
(3) The probate judge shall cause
the hearing to be transcribed or recorded stenographically, mechanically or
electronically and shall retain such transcription for a period of not less
than three years from the date the petition is denied or granted and not less
than the duration of any commitment pursuant to such hearing.
(4) All hearings shall be heard by
the probate judge without a jury and shall be open to the public unless the
respondent or his attorney requests in writing that the hearings be closed to
the public.
(5) The rules of evidence applicable
in other judicial proceedings in this state shall be followed in involuntary
commitment proceedings.
Section 22-52-10.1 Order entered where judge finds criteria met; dismissal of petition.
(a) If at the final hearing on a petition seeking to
involuntarily commit a respondent, the probate judge finds, based on clear and
convincing evidence, that the respondent meets the criteria for involuntary
commitment, an order shall be entered for:
(1) Outpatient treatment; or
(2) Inpatient treatment.
The least restrictive alternative necessary and available
for the treatment of the respondent's mental illness shall be ordered.
(b) The petition for involuntary commitment shall be
dismissed if the criteria for commitment is not
proved.
Section 22-52-10.2 Findings necessary
for outpatient treatment.
A respondent may be committed to outpatient treatment if the
probate court finds, based upon clear and convincing evidence that: (i) the
respondent is mentally ill; (ii) as a result of the mental illness the
respondent will, if not treated, continue to suffer mental distress and will
continue to experience deterioration of the ability to function independently;
and (iii) the respondent is unable to make a rational and informed decision as
to whether or not treatment for mental illness would be desirable.
Section 22-52-10.3 Order for outpatient
treatment.
(a) At the final hearing on a petition for commitment
seeking the involuntary commitment of a respondent, the probate court may order
that the respondent participate in outpatient treatment provided by a
designated mental health facility.
(b) The probate court shall not order outpatient treatment
unless the designated mental health facility has consented to treat the
respondent on an outpatient basis under the terms and conditions set forth by
the probate court.
(c) If outpatient treatment is ordered, the order of the
probate court may state the specific conditions to be followed and shall
include the general condition that the respondent follow
the directives and treatment plan established by the designated mental health
facility.
(d) Pursuant to this section, an order for outpatient
treatment shall not exceed 150 days.
(e) The designated mental health facility shall immediately
report to the probate court any material noncompliance with the outpatient
treatment order. The report shall set forth the need for revocation of the
outpatient treatment order and shall be verified and filed with the probate
court.
(f) The probate court shall set a hearing to consider the
motion for revocation of the outpatient treatment order. The hearing procedures
and safeguards set forth in this article, applicable to a petition for
involuntary commitment, shall be followed. If at the hearing, the probate court
finds, based upon clear and convincing evidence, that the conditions of
outpatient treatment have not been met, and that the respondent meets inpatient
criteria, the probate court may enter an order for commitment to inpatient
treatment.
(g) No county shall be financially responsible for the cost
of provision of outpatient mental health services ordered pursuant to this
article. The cost for the provision of outpatient services
are not allowable costs under Section 22-52-14.
Section 22-52-10.4 Findings necessary for inpatient treatment; order when no treatment
available.
(a) A respondent may be committed to inpatient treatment if
the probate court finds, based upon clear and convincing evidence that: (i) the
respondent is mentally ill; (ii) as a result of the mental illness the
respondent poses a real and present threat of substantial harm to self and/or
others; (iii) the respondent will, if not treated, continue to suffer mental
distress and will continue to experience deterioration of the ability to
function independently; and (iv) the respondent is unable to make a rational
and informed decision as to whether or not treatment for mental illness would
be desirable.
(b) If the probate judge finds that no treatment is
presently available for the respondent's mental illness, but that confinement
is necessary to prevent the respondent from causing substantial harm to himself
or to others, the order committing the respondent shall provide that, should
treatment for the respondent's mental illness become available at any time
during the period of the respondent's confinement, such treatment shall be made
available to him immediately.
Section 22-52-10.5 Facilities for
inpatient treatment; length of treatment; cost.
(a) At the final hearing on a petition for involuntary
commitment or a hearing for the revocation of a prior order for commitment to
outpatient treatment, the probate court may order that the respondent be
committed to: (i) the department for inpatient treatment at a state mental
health facility, or (ii) the department for inpatient treatment at a designated
mental health facility.
(b) Pursuant to this section, an order for inpatient
treatment shall not exceed 150 days.
(c) No county shall be required to pay the cost of inpatient
treatment provided at a state mental health facility or inpatient treatment
authorized by the department at a designated mental health facility.
Section 22-52-10.6 Petition for renewal
of inpatient commitment order; probate court; special judge; notice; hearing.
(a) A petition for renewal of an inpatient commitment order
may be filed by the director of a state mental health facility or his designee
at least 30 days prior to the expiration of the current commitment order. The
petition, together with a copy of the original commitment order and copies of
any subsequent renewal commitment orders, shall be filed with the probate court
of the county where the facility is located. The petition shall explain in
detail why renewal of the order is being requested, and shall further explain
in detail why less restrictive conditions of treatment are not appropriate.
(b) Such probate court may consider, hear, and enter
appropriate orders pursuant to this section or may request that the case be heard
by a special judge of probate.
(c) Whenever and
wherever it shall become necessary that a special judge of probate be provided
to hear and enter appropriate orders with regard to the renewal of commitment
orders pursuant to the provisions of this section, then it shall be the
responsibility of the probate judge in the county so affected by location of
the state mental health facility to determine, select and appoint from time to
time such probate judge; who shall be paid that compensation as determined by
the probate judge in that county not to exceed $ 100.00 per case. The fee set
to compensate the special probate judge shall be allowable costs under Section
22-52-14. The county wherein the hearing for the renewal of a commitment order
is held shall also be allowed a fee of $ 20.00 per case to compensate the
county for additional record keeping. This compensation shall be allowable
costs under Section 22-52-14.
(d) Any special judge of probate appointed under the
provisions of subsection (c) shall be vested with all authority, duties,
responsibilities and judicial functions of the probate court having
jurisdiction over any person involuntarily committed by the probate court of
any county in the State of
(e) Any special judge of probate appointed under the
provisions of subsection (c) shall be a citizen of the State of Alabama, shall
have previously served for a minimum of six years as a judge of probate in this
state, or shall be licensed to practice law in this state, and shall take the present
oath of office upon entering his official duties and serve without bond.
(f) Any hearing conducted under the provisions of this
section shall be conducted in the facilities provided by the department where
such persons committed as patients are located.
(g) The judge of probate, hearing the case, shall conduct a
hearing, within 30 days after the date of petition, to consider the petition
for renewal of the commitment order.
(h) The judge of probate of the county where the facility is
located shall appoint an attorney to serve as guardian ad litem to represent
and to protect the rights of the respondent. Such appointment shall be in
writing and acceptance of appointment shall be returned to the judge of probate
at least five days prior to the hearing.
(i) Adequate written notice shall be provided to the
respondent prior to the hearing.
(j) The commissioner shall designate one or more members of
his staff to serve as advocate in support of the petition and such advocate
shall be required to be an attorney.
(k) The hearing shall be conducted in accordance with
Section 22-52-9. A copy of the order shall be forwarded to the probate court
having original jurisdiction. The burden of proof shall be to prove, based on
clear and convincing evidence, the criteria as prescribed in this article.
(l) The department shall provide the advocate in support of
the petition and the expert witness at no cost to the State General Fund; and
all other costs allowable by law shall be paid as prescribed in Section
22-52-14.
(m) Any order renewing an order for commitment to inpatient
treatment shall not exceed a period of one year.
Section 22-52-10.7 Transfer to another
facility.
A respondent committed to inpatient treatment may be
transferred from any treatment facility to another treatment facility when
deemed to be in the best interest of the respondent. Any law enforcement
officer or any designated employee of the department or designated mental
health facility shall have the authority to transport committed respondents from
any facility to any other facility within the State of
Section 22-52-11 Retention of jurisdiction by probate court over person committed.
The probate court involuntarily committing a respondent
shall retain jurisdiction over the respondent concurrently with the probate
court of the county in which the respondent is subsequently located for so long
as the respondent is subject to the commitment order, and the probate court
committing the respondent may hold any hearing regarding the respondent at any
place within the State of Alabama where the respondent may be located.
Section 22-52-12 Conveyance of person committed to facility; expenses of conveyance.
The probate judge shall order one or more persons or law
enforcement officers to convey any respondent involuntarily committed for
inpatient treatment to the department or to a designated mental health facility
as the court may order, and all necessary expenses incurred by the persons or
officers conveying the respondent shall be taxed as costs of the proceeding.
Section 22-52-12.1 Designated mental health facilities; standards
of care.
(a) The department shall designate certain mental health
facilities that shall have the authority to receive respondents for evaluation,
admission, detention, treatment and discharge pursuant to the provisions of
this chapter.
(b) The department shall establish standards of care and
services to be rendered by each designated mental health facility and shall
certify those facilities designated to provide evaluation, admission,
detention, treatment and discharge.
(c) The probate judges of the State of
(d) The designated mental health facilities shall have the
authority to contract with public or private mental health facilities, subject
to approval by the department, for care and treatment of committed respondents.
Section 22-52-12.2 Renewal petition time limit for certain patients.
With regard to those patients who shall have been committed
to state mental health facilities for 150 days or more as of
Section 22-52-13 Transfer of persons committed to Veterans Administration or other
federal agency; powers, etc., of chief officers of Veterans Administration
Hospitals, etc., with respect to retention, transfer, treatment, etc., of
persons transferred thereto, etc.; effect of foreign judgments or orders of
commitment committing persons to Veterans Administration or other federal
agency.
(a) Any respondent involuntarily committed by the probate
court to the custody of the department or designated mental health facility as
the court may order, who is entitled to care and treatment at a facility
operated by the United States Veterans Administration or other agency of the
United States government, may be transferred by the department to the United
States Veterans Administration or other agency of the United States on such
terms and conditions as may be agreed upon by the department and the Veterans
Administration or other agency. Upon such transfer, the committed respondent
shall be subject to the applicable regulations of the Veterans Administration
or other agency of the
(b) The chief officer of the Veterans Administration
Hospital or other facility operated by the United States to which committed
respondents are transferred, as provided in subsection (a) or under the law in
effect at the time of commitment, shall have the same powers as are exercised
by the directors of state mental health facilities with respect to the
retention, transfer, treatment or discharge of committed respondents, and such
chief officer and the physicians of such facility shall be exempt from
attending court as witnesses in the same manner and to the same extent provided
by law for directors and physicians of state mental health facilities.
(c) The judgment or order of commitment by a court of
competent jurisdiction of another state or of the District of Columbia
committing a respondent to the United States Veterans Administration or other
agency of the United States government or any facility operated by such
administration or agency for care or treatment shall have the same force and
effect as to the respondent while in this state as in the state or district in
which is situated the court entering such judgment or making such order.
Section 22-52-14 Payment of costs.
In any commitment proceeding, the fees of any attorney
appointed by the probate judge to act as advocate for the petition and any
attorney or guardian ad litem appointed by the probate judge for the person
sought to be committed shall be set at the rates established by Section
15-12-21; and any expert employed to offer expert testimony, in such amounts as
found to be reasonable by the probate judge; and all other costs allowable by
law shall be paid by the state general fund upon order of the probate judge;
except, that if the petition is denied and the petitioner is not indigent and
is not a law enforcement officer or other public official acting within the
line and scope of his duties, all costs may be taxed against the petitioner, or
if the petition is granted and the person sought to be committed is not
indigent, the probate judge may order all costs paid from the estate of the
person committed.
Section 22-52-15 Appeals.
An appeal from an order of the probate court granting a
petition seeking to commit a respondent to the custody of the department or
designated mental health facility as the court may order lies to the circuit
court for trial de novo unless the probate judge who granted the petition was
learned in the law, in which case the appeal lies to the Alabama Court of Civil
Appeals on the record. Notice of appeal shall be given in writing to the
probate judge within five days after the respondent has received actual notice
of the granting of the petition and shall be accompanied by security for costs,
to be approved by the probate judge, unless the probate judge finds that the
respondent is indigent, in which case no security for costs shall be required.
Upon the filing of a notice of appeal, the probate judge shall determine and
enter an order setting forth the limitations to be placed upon the liberty of
the respondent pending the appeal. Upon the filing of a notice of appeal, the
probate judge shall certify the record to the clerk of the reviewing court. The
petition shall be set for hearing by the reviewing court within 60 days of the
date the notice of appeal is filed in the probate court, and such hearing shall
not be continued except upon motion in writing by the respondent for good
cause. The costs of the proceedings in the reviewing court shall be taxed in
the same manner as in the probate court. All requirements relative to hearings
in probate court shall apply to appeals heard in the circuit court.
Section 22-52-16 Applicability of
article.
The provisions of this article shall not apply to commitment
to the custody of the State Department of Mental Health and Mental Retardation
of mentally ill minors or children.
Section 22-52-17 Public facilities other than Department of Mental Health and Mental
Retardation not required to perform mental evaluations; exceptions.
Notwithstanding any other language in this article, the
following limitations shall apply. No public facility other than the Department
of Mental Health and Mental Retardation may be required (as distinguished from
authorized) by the probate court to perform any mental evaluation of a person
sought to be committed for use in any final commitment hearing except:
(1) In an emergency case wherein no
other source or agency which is funded or mandated by federal law, state law or
both to provide such services is objectively capable of performing such
evaluation within the time limit imposed by law; or
(2) In an emergency case wherein no
other source or agency operates to perform such evaluation in such emergency
case, a public hospital may be required to accept a person sought to be
committed for the provision of hospital care, if such person is admitted to the
public hospital or other facility by a medical doctor who has agreed to provide
professional services, including evaluation of the patient, prior to admission
to the public hospital or other facility.
In all stages in the proceedings, including final
commitment, public facilities may be utilized only with and upon their
concurrence and upon written certification by the Department of Mental Health
and Mental Retardation that no facility of the mental health and mental
retardation department is available or capable of performing said mental
evaluation. The probate judge shall order and the sheriff shall deliver said
person to the nearest available facility of the department of mental health and
mental retardation for evaluation. The sheriff shall receive reimbursement for
expenses in transporting said persons to and from the facility at the rate
allowed in section 36-7-20. The cost of conveying such person shall be taxed as
costs of the proceeding.
Article 2 – Commitment, Recommitment or Continuation in Custody of State
of Certain Persons.
Section 22-52-30 Definitions.
When used in this article, the following terms shall have
the following meanings, respectively, unless the context clearly indicates
otherwise:
(1) CAPACITY TO PROCEED OR CONTINUE TO TRIAL. Whether or not
a defendant accused of a crime:
a. Understands the nature of the
charges preferred against him; and
b. Is capable of assisting his
attorney in the preparation of the defense of his case.
(2) COMMISSIONER. The commissioner of the
Department of Mental Health and Mental Retardation of the State of
(3) SUPERINTENDENT. The superintendent or director of
(4) FACILITY. Any state-owned or state-operated hospital or
other facility, whether currently operating or to be operated in the future,
utilized for the diagnosis, care, treatment, training or hospitalization of persons
who are mentally ill or who are believed to be mentally ill and any other
appropriate facility within the State of Alabama approved for such purpose by
the Department of Mental Health and Mental Retardation, excluding those general
hospitals owned by a state educational institution which is a public
corporation organized under the acts of the Legislature of the State of
Alabama. Such exclusion, however, shall not deny the governing authority of
such hospital the right to contractually agree to provide services to the
mentally ill.
Section 22-52-31 Proceedings for civil commitment of persons accused of crimes,
committed to custody of Department of Mental Health and Mental Retardation and
determined to be unable to attain capacity to proceed to trial in foreseeable
future; effect of such civil commitment upon statute of limitations, etc.
(a) Upon certification by the superintendent of Bryce or
Searcy Hospital or any other facility so designated by the commissioner that
any person accused of a crime and committed to the custody of the department in
one of its facilities has been determined by appropriate members of the medical
staffs of said facilities as designated by the superintendent to be unable to
attain the capacity to proceed to trial in the foreseeable future, the
commissioner or his designee is hereby authorized to petition the judges of
probate of Tuscaloosa or Mobile Counties or any judge of probate where such
facility exists for an order of civil commitment to the Department of Mental
Health and Mental Retardation. All of the subsequent provisions of this article
shall apply where the commissioner seeks such order.
(b) Nothing in this section shall be construed to require
any prosecuting attorney of the state, county or municipality to dismiss
pending criminal charges against any defendant who has been voluntarily or
involuntarily civilly committed because a determination was made that he did
not have the capacity to proceed or continue to trial in the foreseeable
future.
(c) Civil commitment to the custody of the Department of
Mental Health and Mental Retardation shall have the effect of tolling the
applicable statute of limitation of the crime for which the defendant is
charged; and, once the defendant is released from said custody, the prosecuting
attorney shall forthwith reinstate the charges and proceed with the prosecution
of the case.
Section 22-52-32 Proceedings where persons accused of crimes and committed to custody of
Department of Mental Health and Mental Retardation found competent to stand
trial or charges nolle prossed or dismissed.
Where the superintendent of Bryce or Searcy Hospital or any
other facility so designated by the commissioner, after evaluation by
appropriate members of the medical staffs of said facilities as so designated
by the superintendent, has determined that any person accused of a crime and
committed to the custody of the department in one of its facilities is
competent to stand trial, or where the superintendent has been notified in
writing by the committing court that charges have been nolle prossed or
otherwise dismissed against any person currently confined to the custody of
such facility, it shall be the duty of the superintendent to immediately notify
in writing the court from which the person was committed. The court shall
forthwith order the sheriff to remove the person from said facility back to the
county within 72 hours of receipt of such notice, Saturdays, Sundays and
holidays excluded.
Section 22-52-33 Proceedings for civil
commitment of persons in custody of Department of Mental Health and Mental
Retardation who have been adjudicated "not guilty by reason of
insanity."
Where any person who is currently in the custody of the
department of mental health has been adjudicated "not guilty by reason of
insanity" pursuant to the provisions of Sections 15-16-24, 15-16-25 and
15-16-40, the commissioner or his designee shall petition the judges of probate
of Tuscaloosa or Mobile Counties or any judge of probate where such facility
exists for an order of civil commitment to the Department of Mental Health and
Mental Retardation.
Section 22-52-34 Proceedings for
reevaluation and civil commitment or transfer of certain persons in custody of
Department of Mental Health and Mental Retardation.
(a) Where any person is in the custody of the Department of
Mental Health and Mental Retardation pursuant to the provisions of Article 4 of
this chapter, the commissioner shall direct the superintendent of Bryce or
Searcy Hospital or any other facility so designated by the commissioner to
reevaluate the mental condition of such person for a determination as to
whether or not he or she meets the minimum standards for civil commitment as
defined in Section 22-52-37. Where the sentence for which said person was
committed has expired and where said person meets the minimum standards for
involuntary civil commitment, the commissioner or his designee is hereby
authorized to petition the judges of probate of Tuscaloosa or Mobile Counties
or any judge of probate where such facility exists for an order of civil
commitment to the Department of Mental Health and Mental Retardation. All of
the subsequent provisions of this article shall apply where the commissioner
seeks such an order.
(b) Where the evaluations report that any person does not
meet the minimum standards for civil commitment, the superintendent shall
immediately notify in writing the commissioner of the department of corrections
of the State of Alabama, who shall forthwith remove the person within 72 hours
of receipt of such notice, Saturdays, Sundays and holidays excluded, back to
the custody of the Department of Corrections.
Section 22-52-35 Appointment of special probate judges for consideration, hearing and
entry of orders pertaining to commitment or continued custody of certain
persons committed or transferred to facilities of Department of Mental Health
and Mental Retardation; qualifications, powers, etc., of special probate
judges; conduct of hearings by special probate judges generally.
(a) Upon application of the commissioner or his designee,
the Governor may appoint one or more special judges of probate for the purpose
of considering, hearing and entering appropriate orders with regard to the
commitment or continued custody of such persons who have been committed by any
court of this state to any facility pursuant to the provisions of Sections
15-16-24 and 15-16-40, accused of a crime but not yet tried, or transferred to
such facility on order of the Governor, pursuant to the provisions of Article 4
of this chapter.
(b) A special judge of probate appointed under the
provisions of this article shall be vested with all authority, duties,
responsibilities and judicial functions of the probate court having
jurisdiction over any person involuntarily committed by the probate court of
any county in the State of
(c) Any hearing conducted by the probate judge of Tuscaloosa
or Mobile Counties or any special judge of probate appointed under the
provisions of this article shall be conducted in the facilities provided by the
Department of Mental Health and Mental Retardation wherein such persons
committed as a patient are located.
(d) Any special judge of probate appointed under the
provisions of this article shall be a citizen of the State of
Section 22-52-36 Compensation of
special probate judges.
(a) There is hereby appropriated to the State Comptroller
from the general fund of the State Treasurer the sum of $20,000.00 for the
purpose of paying salaries and expenses of such special probate judges
appointed under the provisions of this article.
(b) All special judges of probate appointed under the
provisions of this article shall be compensated by the State Comptroller in
such amount and manner as prescribed by the Governor in his letter of
appointment.
Section 22-52-37 Standards for conduct
of civil commitment proceedings generally; minimum standards for civil
commitment; appeals from orders of probate courts as to commitment.
(a) Any civil commitment proceedings are to be conducted in
accordance with the following constitutional due process standards:
(1) Adequate notice of the hearing
and its purpose shall be given sufficiently in advance of the scheduled
proceedings to permit a reasonable opportunity to prepare therefor.
(2) The person to be committed shall
have the right to attend the hearing unless the court, after appropriate
inquiry, determines that he or she is so mentally or physically ill as to be
incapable of attendance.
(3) The subject of the hearing shall
be informed of his right to counsel and to the appointment of counsel if
indigent. Where the commitment of a presently confined patient is sought, a
guardian ad litem who is an attorney shall be appointed.
(4) The guardian ad litem shall be
entitled to a reasonable fee as compensation for services rendered for time in
court and out of court, to be determined by the judge hearing the case. The
decision of the judge as to the reasonableness of the fee shall be final, and
the fee shall be payable, initially, by the Department of Mental Health and
Mental Retardation. Such compensation shall, within 90 days, be reimbursed to
the Department of Mental Health and Mental Retardation by the county from which
the patient was originally committed by the circuit court acting pursuant to
its powers in Sections 15-16-21, 15-16-22, 15-16-24 and 15-16-40 or the county
from which the patient was originally sentenced to the state penitentiary
before transfer by the Governor pursuant to the provisions of Article 4 of this
chapter.
(5) Any expenses incurred in
carrying out the provisions of this section shall be reasonable as determined
by the judge hearing the case, and his decision shall be final. Such expenses
shall be payable, initially, by the Department of Mental Health and Mental
Retardation. Such expenses shall, within 90 days, be reimbursed to the
Department of Mental Health and Mental Retardation in the same manner as
provided in subdivision (a)(4) of this section.
(6) Commitment hearings are to be
conducted in surroundings as noncoercive as possible, and appropriate street
dress made available to each subject, if not already available.
(7) No person shall be committed
unless the judge finds the following minimum standards for civil commitment
have been met:
a. That he is mentally ill;
b. That he poses a real and present
threat of substantial harm to himself or to others;
c. That the danger has been
evidenced by some factual basis to support the facility staffs' recommendation
that recommitment, commitment or continued custody is necessary for the
person's health and well-being. In order for a person to be committed or
recommitted to the custody of the Department of Mental Health and Mental
Retardation, the evidence presented must clearly and convincingly lay a factual
basis for the conclusion that continued custody is necessary;
d. That there is treatment available
for the illness diagnosed or that confinement of the dangerous but untreatable
individual is necessary for his and the community's safety and well-being; and
e. That commitment or recommitment
is the least restrictive alternative necessary and available for treatment of
the person's illness.
(8) The necessity for commitment
must be proved by evidence which is clear, unequivocal and convincing.
(9) At the hearing, the subject
shall have the right to offer evidence, to be confronted with the witnesses
against him and to cross-examine them and shall have the privilege against
self-incrimination. The rules of evidence applicable in other judicial
proceedings in this state shall be followed in involuntary civil commitment
proceedings.
(10) A full record of the
proceedings, including findings for adequate review, shall be compiled and
retained by the probate court.
(11) The guardian ad litem shall not
be limited with respect to his power to waive any of his client's rights when,
in his judgment and in the judgment of the judge of probate or, as the case may
be, the circuit judge, after appropriate findings of fact, waiver is in the
best interest of the client.
(b) An appeal from an order of the probate court either
granting or denying a petition seeking to commit a person to the custody of the
Department of Mental Health and Mental Retardation lies to the circuit court of
Article 3 – Admission, Discharge and Transfer of Mentally Retarded in
State Institutions.
Section 22-52-50 Definitions.
For the purposes of this article, unless otherwise
indicated, the following terms shall have the meanings respectively ascribed to
them by this section:
(1) DEPARTMENT. Alabama Department of
Mental Health and Mental Retardation.
(2) INSTITUTION. Any state owned or state operated hospital,
school or institution for the diagnosis, care, treatment, training, detention
or rehabilitation of the mentally retarded individuals.
(3) SUPERINTENDENT. The chief
administrative officer of any institution or the designated deputy, agent or
representative of the superintendent, including his successor or successors.
(4) PHYSICIAN. A doctor of medicine licensed to practice in
this state.
Section 22-52-51 Observation and
diagnosis; admission for care; preference in admission.
The superintendent may receive for observation and diagnosis
any resident of Alabama for whom application is made by his father, mother or
guardian or, when neither parent nor the guardian is available and capable, by
an adult next of kin, supplying such data as the superintendent may require;
and, if found to be a mentally retarded individual, such individual may be
admitted to the institution for care, treatment, training and rehabilitation
for such period and under such conditions as may be authorized by law. Should
the institution at any time not be able to accommodate all who should be
admitted thereto under this section, preference in admission shall be given to
children and women of childbearing age.
Section 22-52-52 Discharge of individual admitted voluntarily — Generally.
The superintendent of any institution shall discharge any
mentally retarded individual admitted voluntarily whose institutionalization,
care, training and treatment he deems to be no longer advisable. He may also
discharge any mentally retarded individual admitted voluntarily if to do so
would, in his judgment, contribute to the most effective use of the institution
in the institutionalization, care, training and treatment of mentally retarded
individuals; provided, that in no event shall any such individual be discharged
if, in the judgment of the superintendent of such institution, such discharge would
be harmful to the mentally retarded individual or others.
Section 22-52-53 Discharge of individual admitted voluntarily — Request by parent, etc.
A mentally retarded individual admitted voluntarily, whose discharge
is requested in writing by his parent, guardian or adult next of kin who signed
the application, shall be discharged within 15 days of receipt of such written
request by the superintendent; except, that if, in the superintendent's
opinion, the discharge of the individual would be unsafe, he shall file with
the probate court of the individual's residence a certificate stating that, in
his opinion, the discharge of the mentally retarded individual would be unsafe
for the individual and others, and setting forth the facts upon which such
opinion is based, a copy being sent by registered or certified mail to the
individual's parent, legal guardian or adult next of kin. Such certification
shall be deemed to be a certificate of a physician and an application for an
involuntary order to the care of the said individual as provided for in Section
22-52-55, and proceedings shall be had thereon as provided in said Section
22-52-55. The individual shall remain at the same institution as designated by
the probate judge pending disposition of the proceeding.
Section 22-52-54 Reception on court
order.
The department may receive any mentally retarded individual
who is a resident of
Section 22-52-55 Proceedings for court order — Generally.
(a) Upon the written application of any responsible person,
on oath, stating that he believes a resident of Alabama to be a mentally
retarded individual and in need of care, training, treatment, hospitalization
or rehabilitation and further believes that the father, mother or guardian of
said individual has failed to secure proper care, training, treatment,
hospitalization or rehabilitation for him, the probate court of the county in
which the allegedly mentally retarded individual is found shall take jurisdiction.
(b) The probate court may, at any time during the
proceedings, take the allegedly mentally retarded individual into custody if
deemed necessary for the protection of said individual, and the probate judge
may appoint an attorney or guardian ad litem to serve on the examining
committee for the protection of all legal rights of the retarded individual. An
individual taken into custody pursuant to this subsection or ordered to be
hospitalized pursuant to subsection (c) of this section may be detained in any
suitable home or any other suitable facility under such reasonable conditions
as the court may prescribe.
(c) The probate judge shall appoint two physicians to
examine said individual and report to the court their findings as to the mental
condition of said individual and his need of being ordered to the care of the
department. The judge of probate may issue subpoenas for witnesses to appear
before the two physicians and, on their failure to appear, he may take the same
steps to compel attendance as if the proceedings were before his court.
(d) The two physicians shall file their written report with
the court within five days after their appointment. If said report is not
unanimous to the effect that it finds the allegedly mentally retarded individual
to be a mentally retarded individual and in need of being ordered to the care
of the department, the probate judge shall, without taking further action,
dismiss the application and terminate the proceedings.
(e) If the physicians' report is unanimous to the effect
that it finds said individual to be a mentally retarded individual and in need
of being ordered to the care of the department and the department has advised
the court that such individual can be accepted, the judge of probate shall
enter an order directed to the department requiring it to receive said
individual.
(f) The provisions of this section shall not apply to
commitment to the custody of the state Department of Mental Health and Mental
Retardation of mentally retarded minors or children.
Section 22-52-56 Proceedings for court order — Expenses.
The probate judge shall draw his warrant upon the treasurer
of his county for such sum or sums as shall be actually necessary or requisite
to defray the expenses of the proceeding provided for in Section 22-52-55 and
for conveying the mentally retarded individual from such county to the
department. The sum to be paid to the appointed physicians and attorney or
guardian ad litem shall not exceed $10.00 and actual expenses. The total cost
to be paid to the probate judge for such proceeding shall be the sum of $25.00.
In the event the application is dismissed, the cost to be paid to the judge
shall be $10.00; provided, that no money shall be drawn from the county
treasury for the purposes set forth in this section when the mentally retarded
individual, his estate or person or persons responsible or legally obligated
for the support of such individual shall be able or sufficient to defray such
expenses; provided further, that the provisions of this section shall not apply
to commitment to the custody of the state Department of Mental Health and
Mental Retardation of mentally retarded minors or children.
Section 22-52-57 Discharge and leave.
The superintendent of any institution shall, as frequently as
practicable, examine or cause to be examined, every individual in his
institution and, whenever he determines any individual to be no longer in need
of institutionalization, may discharge him, pursuant to the rules and
regulations of the department or, whenever he determines that conditions are
favorable to the continued rehabilitation of said individual, may place him on
leave for such time and under such conditions as the superintendent may
prescribe.
Section 22-52-58 Transfer of
individuals to other institutions.
(a) The department may transfer or authorize the transfer of
a mentally retarded individual from one institution for the mentally retarded
to another institution for the mentally retarded if the department determines
it would be consistent with the training, treatment, hospitalization or
rehabilitation needs of such individual to do so.
(b) On recommendation of the superintendent of any
institution for the mentally retarded and with the approval of the court having
jurisdiction of the case, the department may transfer any mentally retarded
individual to any state-owned and state-operated psychiatric hospital or other
psychiatric hospital subject to the supervision and administrative control of
the department. The transfer shall be made upon the order of the department or
its duly authorized agent or agents and without any additional formal court
order.