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Last updated December 2003
Title 36 -
Public Health And Safety
Chapter 5 - Mental Health Services
ARTICLE 1 – GENERAL PROVISIONS
36-501. Definitions
In this chapter, unless the context otherwise requires:
1. "Admitting officer" means a psychiatrist or
other physician with experience in performing psychiatric examinations who has
been designated as an admitting officer of the evaluation agency by the person
in charge of the evaluation agency.
2. "Chief medical officer" means the chief medical
officer under the supervision of the superintendent of the state hospital.
3. "Court" means the superior court in the county
in this state in which the patient resides or was found prior to screening or
emergency admission under provisions of this title.
4. "Danger to others" means that the judgement of a person who has a mental disorder is so
impaired that he is unable to understand his need for treatment and as a result
of his mental disorder his continued behavior can reasonably be expected, on
the basis of competent medical opinion, to result in serious physical harm.
5. "Danger to self" means:
(a) Behavior which, as a result of a
mental disorder, constitutes a danger of inflicting serious physical harm upon
oneself, including attempted suicide or the serious threat thereof, if the
threat is such that, when considered in the light of its context and in light
of the individual's previous acts, it is substantially supportive of an
expectation that the threat will be carried out.
(b) Behavior which, as a result of a
mental disorder, will, without hospitalization, result
in serious physical harm or serious illness to the person, except that this
definition shall not include behavior which establishes only the condition of
gravely disabled.
6. "Department" means the department of health
services.
7. "Deputy director"
means the deputy director of the division of behavioral health in the
department of health services.
8. "Detention" means the taking into custody of a
patient or proposed patient.
9. "Director" means the director of the
department.
10. "Division" means the division of behavioral
health in the department.
11. "Evaluation" means a professional
multidisciplinary analysis based on data describing the person's identity,
biography and medical, psychological and social conditions carried out by a
group of persons consisting of not less than the following:
(a) Two licensed physicians, who
shall be qualified psychiatrists, if possible, or at least experienced in
psychiatric matters, and who shall examine and report their findings
independently. The person against whom a petition has been filed shall be
notified that he may select one of the physicians. A psychiatric resident in a
training program approved by the American medical association or by the
American osteopathic association may examine the person in place of one of the
psychiatrists if he is supervised in the examination and preparation of the
affidavit and testimony in court by a qualified psychiatrist appointed to
assist in his training, and if the supervising psychiatrist is available for
discussion with the attorneys for all parties and for court appearance and testimony
if requested by the court or any of the attorneys.
(b) Two other individuals, one of
whom, if available, shall be a psychologist and in any event a social worker
familiar with mental health and human services which may be available placement
alternatives appropriate for treatment. An evaluation may be conducted on an
inpatient basis, an outpatient basis or a combination of both and every
reasonable attempt shall be made to conduct the evaluation in any language
preferred by the person.
12. "Evaluation agency" means a health care agency
which is licensed by the department and which has been approved pursuant to
this title, providing those services required of such agency by this chapter.
13. "Examination" means an exploration of the
person's past psychiatric history and of the circumstances leading up to the
person's presentation, a psychiatric exploration of the person's present mental
condition and a complete physical examination.
14. "Family member" means a spouse, parent, adult
child, adult sibling or other blood relative of a person undergoing treatment
or evaluation pursuant to this chapter.
15. "Gravely disabled" means a condition evidenced
by behavior in which a person, as a result of a mental disorder, is likely to
come to serious physical harm or serious illness because he is unable to
provide for his basic physical needs.
16. "Independent evaluator" means a licensed
physician or psychologist selected by the person to be evaluated or by such
person's attorney.
17. "Informed consent" means a voluntary decision
following presentation of all facts necessary to form the basis of an
intelligent consent by the patient or guardian with no minimizing of known
dangers of any procedures.
18. "Least restrictive treatment alternative"
means the treatment plan and setting which infringe in the least possible
degree with the patient's right to liberty and which are consistent with
providing needed treatment in a safe and humane manner.
19. "Licensed physician" means any medical doctor
or doctor of osteopathy who is either:
(a) Licensed in this state.
(b) A full-time hospital physician
licensed in another state and serving on the staff of a hospital operated or
licensed by the
20. "Medical director of an evaluation agency" means
a psychiatrist, or other licensed physician experienced in psychiatric matters,
who is designated in writing by the governing body of the agency as the person
in charge of the medical services of the agency for the purposes of this
chapter and may include the chief medical officer of the state hospital.
21. "Medical director of a mental health treatment
agency" means a psychiatrist, or other licensed physician experienced in
psychiatric matters, who is designated in writing by the governing body of the
agency as the person in charge of the medical services of the agency for the
purposes of this chapter and includes the chief medical officer of the state
hospital.
22. "Mental disorder" means a substantial disorder
of the person's emotional processes, thought, cognition or memory. Mental
disorder is distinguished from:
(a)
Conditions which are primarily those of drug abuse, alcoholism or mental
retardation, unless, in addition to one or more of these conditions, the person
has a mental disorder.
(b) The declining mental abilities
that directly accompany impending death.
(c) Character and personality
disorders characterized by lifelong and deeply ingrained antisocial behavior
patterns, including sexual behaviors which are abnormal and prohibited by statute
unless the behavior results from a mental disorder.
23. "Mental health provider" means any physician
or provider of health, mental health or social welfare services involved in
evaluating, caring for, treating or rehabilitating a patient.
24. "Mental health treatment agency" means the
state hospital or a health care agency which is licensed by the department and
which provides those services which are required of the agency by this chapter.
25. "Outpatient treatment" or "combined
inpatient and outpatient treatment" means any treatment program not
requiring continuous inpatient hospitalization.
26. "Outpatient treatment plan" means a treatment
plan that does not require continuous inpatient hospitalization.
27. "Patient" means any person undergoing evaluation
or treatment under the provisions of this chapter.
28. "Peace officers" means
sheriffs of counties, constables, marshals and policemen of cities and
towns.
29. "Persistently or acutely disabled" means a
severe mental disorder that meets all the following criteria:
(a) If not treated has a substantial
probability of causing the person to suffer or continue to suffer severe and
abnormal mental, emotional or physical harm that significantly impairs
judgment, reason, behavior or capacity to recognize reality.
(b) Substantially impairs the
person's capacity to make an informed decision regarding treatment and this
impairment causes the person to be incapable of understanding and expressing an
understanding of the advantages and disadvantages of accepting treatment and
understanding and expressing an understanding of the alternatives to the
particular treatment offered after the advantages, disadvantages and
alternatives are explained to that person.
(c) Has a reasonable prospect of
being treatable by outpatient, inpatient or combined inpatient and outpatient
treatment.
30. "Prepetition
screening" means the review of each application requesting court-ordered
evaluation, including an investigation of facts alleged in such application, an
interview with each applicant and an interview, if possible, with the proposed
patient. The purpose of the interview with the proposed patient is to assess
the problem, explain the application and, when indicated, attempt to persuade
the proposed patient to receive, on a voluntary basis, evaluation or other
services.
31. "Prescribed form" means a form established by
a court or the rules of the division which have been approved by the director
or in accordance with the laws of this state.
32. "Professional" means a physician licensed
pursuant to title 32, chapter 13 or 17 or a psychologist certified pursuant to
title 32, chapter 19.1.
33. "Proposed patient" means a person for whom an
application for evaluation has been made or a petition for court-ordered
evaluation has been filed.
34. "Psychiatrist" means a licensed physician who
has completed three years of graduate training in psychiatry in a program
approved by the American medical association or the American osteopathic
association.
35. "Psychologist" means a person licensed under
the provisions of title 32, chapter 19.1 and experienced in the practice of
clinical psychology.
36. "Screening agency" means a health care agency
which is licensed by the department and which provides those services required
of such agency by this chapter.
37. "Social worker" means a person who has
completed two years of graduate training in social work in a program approved
by the council of social work education and who has experience in mental
health.
38. "State hospital" means the
39. "Superintendent" means the superintendent of
the state hospital.
36-502. Powers and duties of deputy
director; rules for standards, forms, administration, admission and transfer;
expenditure limitation
A.
The deputy director, with the approval of the director, shall make rules
including standards for agencies providing services, and prescribing forms as
may be necessary, for the proper administration and enforcement of this
chapter. The rules shall be applicable to patients admitted to or treated in
agencies as set forth in this chapter and shall provide for periodic
inspections of such agencies.
B.
The deputy director, with the approval of the director, shall make rules
concerning admission of patients and the transfer of patients between mental
health treatment agencies. A patient undergoing court-ordered treatment may be
transferred from one mental health treatment agency to another in accordance
with the rules of the deputy director, subject to the approval of the court.
C.
The deputy director, with the approval of the director, may make rules
concerning leaves, visits and absences of patients from evaluation agencies and
mental health treatment agencies.
D.
The total amount of state monies that may be spent in any fiscal year by the
department for mental health services pursuant to this chapter shall not exceed
the amount appropriated or authorized by section 35-173 for that purpose. This
chapter shall not be construed to impose a duty on an officer, agent or
employee of this state to discharge a responsibility or to create any right in
a person or group if the discharge or right would require an expenditure of
state monies in excess of the expenditure authorized by legislative
appropriation for that specific purpose.
36-503. Medical director of evaluation
agency or mental health treatment agency; deputy
The
medical director of an evaluation agency or the medical director of a mental
health treatment agency may deputize, in writing, subject to the approval of
the governing body of the agency, any qualified psychiatrist or licensed
physician on the staff of the agency to do or perform in his stead any act the
medical director is empowered to do or charged with responsibility of doing
pursuant to this chapter.
36-503.01. Duty of attorney general or
county attorney
Whenever
a physician or other person files a petition for court-ordered evaluation or
court-ordered treatment on behalf of a state or county screening, evaluation or
mental health treatment agency, the attorney general or the county attorney for
the county in which the proceeding is initiated, as the case may be, shall
represent the individual or agency in any judicial proceeding for involuntary
detention or commitment and shall defend all challenges to such detention or
commitment.
36-503.02. Serious mental illness services
fund; program termination
A.
The serious mental illness services fund is established consisting of monies
appropriated to the department from the tobacco litigation settlement account
in the state general fund, any other legislative appropriations and interest
earned on these monies. The department shall administer the fund.
B.
Monies in the fund:
1. Shall be used to supplement and not supplant existing and
future appropriations.
2. Are intended for the development of programs and services
that are of a onetime nature but that the department may implement over several
years.
3. Do not revert to the state general fund.
4. Are exempt from the provisions of section 35-190 relating
to lapsing of appropriations.
5. Are continuously appropriated.
C.
Except as provided in subsection D of this section, the department shall use
fund monies to provide community housing, vocational rehabilitation and other
recovery support services to persons with serious mental illness. The
department shall design these services to assist persons with serious mental
illness achieve the highest possible level of self-sufficiency. The department
shall establish performance evaluation standards to measure the department's
effective use of the monies in the fund.
D.
On or before
E.
Before the department may spend fund monies, the department shall present a
plan, including performance evaluation standards, to the joint legislative
budget committee for its review.
F.
This section does not affect or expand the existing rights of persons with
serious mental illness pursuant to this title.
G.
The program established by this section ends on
36-503.03. Civil
commitment treatment population; cap
(Rpld.
The
ARTICLE 2 – PATIENT’S LEGAL AND CIVIL RIGHTS
36-504. Notice of patient's rights;
notification to family
A.
Every person undergoing treatment or evaluation pursuant to this chapter is
entitled to the rights set forth in this chapter and to rights that the deputy
director, with the approval of the director, specifies by rule. A list of
patients' rights as required by this chapter and by the division shall be
compiled and published by the deputy director, with the approval of the
director, by rule. The list shall be prominently posted in English and Spanish
in all facilities providing evaluation or treatment. A patient's rights shall
otherwise be brought to the attention of the patient as this chapter requires
or the deputy director, with the approval of the director, may direct by rule.
B.
An agency which is evaluating, examining or treating a person pursuant to
article 4 or 5 of this chapter shall immediately notify the person's guardian
or, if none, a member of the person's family that the person is being treated
in the agency. If the person has an agent appointed pursuant to chapter 32 of
this title, the agency shall notify that agent. If the agency is unable to
learn the identity of the guardian or a member of the person's family or is
unable to contact them, it shall document every attempt that was made to comply
with such notification. The agency shall release any further information only
after the treating professional or that person's designee interviews the person
undergoing treatment or evaluation to determine whether or not release is in
that person's best interests. A decision to release or withhold information is
subject to review pursuant to section 36-517.01. The treating agency shall
record the name of a person to whom any information is given.
36-505. Rights at hearing
At
all hearings conducted pursuant to this chapter, persons shall have the right
to an analysis of their psychological condition by an independent evaluator.
36-506. Civil rights not impaired;
discrimination prohibited
A.
Persons undergoing evaluation or treatment pursuant to this chapter shall not
be denied any civil right, including but not limited to, the right to dispose
of property, sue and be sued, enter into contractual relationships and vote.
Court-ordered treatment or evaluation pursuant to this chapter is not a
determination of legal incompetency, except to the extent provided in section
36-512.
B.
A person who is or has been evaluated or treated in an agency for a mental
disorder shall not be discriminated against in any manner, including but not
limited to:
1. Seeking employment.
2. Resuming or continuing professional practice or previous
occupation.
3. Obtaining or retaining housing.
4. Obtaining or retaining licenses or permits, including but
not limited to, motor vehicle licenses, motor vehicle operators and chauffeurs
licenses and professional or occupational licenses.
C.
"Discrimination" for purposes of this section means any denial of
civil rights on the grounds of hospitalization or outpatient care and treatment
unrelated to a person's present capacity to meet the standards applicable to
all persons. Applications for positions, licenses and housing shall contain no
requests for information which encourage such discrimination.
D.
Upon discharge from any treatment or evaluation agency, the patient shall be
given written notice of the provisions of this section.
36-507. Patient's rights to privacy and
to personal possessions
Every
person undergoing evaluation or treatment pursuant to this chapter shall:
1. Have the right not to be fingerprinted.
2. Have the right not to be photographed without consent of
the person and his attorney or guardian, except that he may be photographed
upon admission to an agency for identification and administrative purposes of
the agency. All photographs shall be confidential and shall not be released by
the agency except pursuant to court order.
3. Have the right to examine the written treatment program
and the medical record, unless the attending physician determines that such an
examination is contraindicated. If the attending physician determines that such
an examination is contraindicated, this determination shall be noted in the
patient's medical record.
4. Have access to individual storage space for his private
use while undergoing evaluation or treatment.
5. Be permitted to wear his own clothing, to keep and use
his own personal possessions including his toilet articles and to keep and be
allowed to spend a reasonable sum of his own money for his own needs and
comfort. Notwithstanding the provisions of section 36-516, the director of the
agency may deny the patient's rights under this paragraph if necessary to
protect the safety of the patient or others. Such denial shall be based upon a
written determination and entered into the patient's clinical record and the
information therein shall be made available on request to the person, his
attorney or guardian.
36-508. Disposition of patient's
personal property
A.
When a patient is admitted on an inpatient basis to a mental health treatment
agency pursuant to section 36-540, the articles of personal property which
cannot be used by the patient at the institution shall be placed under the
control and management of the patient's guardian or conservator and, if none,
of the patient's spouse or next of kin.
B.
In the event the patient is without a guardian, conservator, spouse or next of
kin, or the spouse or next of kin refuses to take possession of the patient's
personal property that cannot be used by the patient at the mental health
treatment agency, the mental health treatment agency shall provide reasonable
facilities for the storage of the patient's personal property.
C.
Upon application by any interested person, the court shall enter an appropriate
order for the protection of the proposed patient's property where no other
alternatives exist to prevent the immediate loss or destruction of that
property.
36-509. Confidential
records
A.
All information and records obtained in the course of evaluation, examination
or treatment shall be kept confidential and not as public records, except as
the requirements of a hearing pursuant to this chapter may necessitate a
different procedure. Information and records may only be disclosed, pursuant to
rules established by the department, to:
1. Physicians and providers of health, mental health or
social and welfare services involved in caring for, treating or rehabilitating
the patient.
2. Individuals to whom the patient has given consent to have
information disclosed.
3. Persons legally representing the patient, and in such case,
the department's rules shall not delay complete disclosure.
4. Persons authorized by a court order.
5. Persons doing research or maintaining health statistics,
provided that the department establishes rules for the conduct of such research
as will ensure the anonymity of the patient.
6. The state department of corrections in cases where
prisoners confined to the state prison are patients in
the state hospital on authorized transfers either by voluntary admission or by
order of the court.
7. Governmental or law enforcement agencies if necessary to
secure the return of a patient who is on unauthorized absence from any agency
where the patient was undergoing evaluation and treatment.
8. Family members actively participating in the patient's
care, treatment or supervision. An agency or nonagency
treating professional may only release information relating to the person's
diagnosis, prognosis, need for hospitalization, anticipated length of stay,
discharge plan, medication, medication side effects
and short-term and long-term treatment goals.
9. A state agency that licenses health professionals
pursuant to title 32, chapter 13, 15, 17 or 19.1 and that requires these
records in the course of investigating complaints of professional negligence,
incompetence or lack of clinical judgment.
10. The department of education or school district of
residence of a person between three and twenty-two years of age for whom the
information is necessary in order to provide educational services required by
the individuals with disabilities education act (20 United States Code sections
1400 through 1415). The information provided is limited to evaluation and
treatment information that affects the educational programming and placement
decisions for the patient.
11. A governmental agency or a competent professional, as
defined in section 36-3701, in order to comply with chapter 37 of this title.
12. An agent appointed pursuant to chapter 32 of this title.
13. Human rights committees established pursuant to title
41, chapter 35. Any information released pursuant to this paragraph shall
comply with the requirements of section 41-3804 and applicable federal law and
shall be released without personally identifiable information unless the
personally identifiable information is required for the official purposes of
the human rights committee. Case information received by a human rights
committee shall be maintained as confidential. for the
purposes of this paragraph, "personally identifiable information"
includes name, address, date of birth, social security number, tribal
enrollment number, telephone or telefacsimile number,
driver license number, places of employment, school identification and military
identification number or any other distinguishing characteristic that tends to
identify a particular person.
14. The department of public safety by the court to comply
with the requirements of section 36-540, subsection N only.
B.
An agency or nonagency treating professional shall
release information pursuant to subsection A, paragraph 8 of this section only
after the treating professional or that person's designee interviews the person
undergoing treatment or evaluation to determine whether or not release is in
that person's best interests. A decision to release or withhold information is
subject to review pursuant to section 36-517.01. The treating agency shall
record the name of any person to whom any information is given.
36-510. Patient's compensation for work
If
a patient of a mental health treatment agency works, this work shall be in the
patient's interest. If the primary purpose of this work is to benefit the
mental health treatment agency or any agency of the state, the patient shall be
employed and paid in accordance with law. If the purpose of the work is
therapeutic, the patient may or may not be paid as circumstances indicate. This
therapeutic work shall be part of a planned program of treatment described in
the patient's record with the rationale for the work-treatment included. It
shall be periodically reviewed by the appropriate agency review procedures. The
term "work" does not mean matters of personal housekeeping or
personal maintenance.
36-511. Quality of treatment
A.
Subject to his right to refuse psychiatric and medical treatment pursuant to
sections 36-512 and 36-513 and pursuant to rules of the division every person
undergoing evaluation or treatment pursuant to this chapter shall receive
physical and psychiatric care and treatment, delivered in a manner that allows
the person's family members or guardian to participate in his care and
treatment when appropriate, for the full period he is detained. The agency
providing care and treatment shall keep a clinical record for each person which details all medical and psychiatric evaluations and
all care and treatment received by the person.
B.
An agency administering the care and treatment shall provide and make available
to the guardian, if one exists, upon request:
1. A written treatment program based on the individual needs
of the person.
2. Careful and periodic reexaminations of each person by
appropriate professional persons, including a physician. Reexaminations shall
be made once each ninety days and the results shall be a part of the person's
medical record.
3. A full physical examination once a year.
4. Adequate medical treatment in the light of present
medical knowledge in accordance with the results of these examinations.
C.
An agency administering inpatient care and treatment, in conjunction with the
community treatment agency, shall, prior to the release of a patient, prepare a
plan for the patient's care after release including arrangements for a place to
live, and an adequate program for necessary treatment and maintenance, and
provide the plan to the patient's guardian if one exists. The community
treatment agency shall make a good faith effort to initiate treatment with a
patient released from an inpatient facility.
36-512. Emergency medical care
A
person undergoing evaluation or treatment has a right to refuse any and all
medical treatment unless ordered by the court, except that when, in the written
opinion of the attending physician, a true medical emergency exists and medical
care and treatment including surgical procedures are necessary to save the
life, physical health, eyesight, hearing or member of the person, the medical
director of the agency may give consent to such medical care and treatment if
time will not permit the obtaining of appropriate judicial authority. The
patient's guardian, if one exists, shall be notified by the medical director of
the giving of emergency medical care immediately.
36-513. Seclusion; restraint; treatment
A
person undergoing evaluation pursuant to article 4 of this chapter shall not be
treated for his mental disorder unless he consents to such treatment, except
that seclusion and mechanical or pharmacological restraints may be employed in
the case of emergency for the safety of the person or others. A person
undergoing treatment pursuant to article 5 of this chapter shall not be
subjected to seclusion or mechanical or pharmacological restraints except in
case of emergency for the safety of the person or others or as a part of a
written plan for the treatment of the patient, prepared by staff members
responsible for his care and pursuant to regulations promulgated by the
department. All instances of seclusion or restraint shall be properly recorded
in the patient's medical record and the use shall be governed by written
procedures of the agency caring for the patient and are subject to the rules
and regulations of the department.
36-514. Visitation; telephone;
correspondence; religious freedom
Every
person detained for evaluation or treatment pursuant to this chapter shall have
the following additional rights:
1. To be visited by the person's personal physician,
guardian, agent appointed pursuant to chapter 32 of this title, attorney and
clergyman or any other person, subject to reasonable limitations as the
individual in charge of the agency may direct.
2. To have reasonable access to telephones between the hours
of
3. To be furnished with reasonable amounts of stationery and
postage and to be permitted to correspond by mail without censorship with any
person.
4. To enjoy religious freedom and the right to continue the
practice of the person's religion in accordance with its tenets during the
detainment, except that this right may not interfere with the operation of the
agency.
36-515. Limitation of liability; false
application; classification
A.
Any person acting in good faith upon either actual knowledge or reliable
information who makes application for evaluation or treatment of another person
pursuant to this chapter is not subject to civil or criminal liability for such
act.
B.
Any person who knowingly makes a false statement of a material fact with the
intent to cause another to be confined under this chapter is guilty of a class
1 misdemeanor.
36-516. Violation of person's rights
Any
knowing violation of a person's rights under this article shall give him a
cause of action for the greater of either one thousand dollars or three times
the actual amount of damages. It is not a prerequisite to this action that the plaintiff suffer or be threatened with actual damages.
36-517. Cruelty to mentally disordered
person; classification
A
person guilty of any harsh or cruel treatment of, or any neglect of duty toward
a mentally disordered person is guilty of a class 2 misdemeanor.
36-517.01. Review of decisions regarding
release of treatment information; notice; appeal; immunity
A. An agency providing evaluation or treatment shall, on
request of a person undergoing evaluation or treatment, a member of his family
or his guardian, review the treating professional's decision to release or
withhold information requested pursuant to section 36-504, subsection B or
section 36-509, subsection A, paragraph 8. The agency shall inform a person
whose request is denied of his right to a review when it notifies that person
of its decision. The agency director or his designee shall conduct the review
within five business days after the request for review is made. The review
shall include an interview of the person undergoing evaluation or treatment.
The agency shall make a decision to uphold or reverse the treating
professional's decision within five business days after initiating the review.
The agency shall bear the costs of conducting the review. Agency review
pursuant to this section does not apply to a decision to release or withhold
information made by a nonagency treating
professional.
B. A final agency decision made pursuant to subsection A of
this section or a decision to release or withhold information made by a nonagency treating professional is subject to judicial
review by filing a petition in the superior court within five business days
after the agency or nonagency treating professional
issues its decision. The court shall hold a hearing on the petition within five
business days after the petition is filed. The agency or nonagency
treating professional shall not release any treatment information during the
period an appeal may be filed or is pending.
C. An agency or nonagency treating
professional that makes a decision to release or withhold treatment information
in good faith pursuant to section 36-504, subsection B or section 36-509,
subsection A, paragraph 8 is not subject to civil liability for this decision.
36-517.02. Limitation of liability;
exception; discharge of duty; immunity for disclosure
A.
There shall be no cause of action against a mental health provider nor shall
legal liability be imposed for breaching a duty to prevent harm to a person
caused by a patient, unless both of the following occur:
1. The patient has communicated to the mental health
provider an explicit threat of imminent serious physical harm or death to a
clearly identified or identifiable victim or victims, and the patient has the
apparent intent and ability to carry out such threat.
2. The mental health provider fails to take reasonable
precautions.
B.
Any duty owed by a mental health provider to take reasonable precautions to
prevent harm threatened by a patient is discharged by all of the following:
1. Communicating when possible the threat to all
identifiable victims.
2. Notifying a law enforcement agency in the vicinity where
the patient or any potential victim resides.
3. Taking reasonable steps to initiate proceedings for
voluntary or involuntary hospitalization, if appropriate.
4. Taking any other precautions that a reasonable and
prudent mental health provider would take under the circumstances.
C.
Whenever a patient has explicitly threatened to cause serious harm to a person
or whenever a mental health provider reasonably concludes that a patient is
likely to do so, and the mental health provider, for the purpose of reducing
the risk of harm, discloses a confidential communication made by or relating to
the patient, the mental health provider shall be immune from liability
resulting from such disclosure.
D.
This section shall not limit and shall be in addition to any other statutory immunitites from liability of mental health providers or
mental health treatment agencies as otherwise provided by law.
ARTICLE
3 – VOLUNTARY ADMISSIONS
36-518. Application for voluntary
admission; admission to agency; minors; transportation
A.
Pursuant to rules of the division, any person who is eighteen years of age or
older and who manifests the capacity to give and gives informed consent may be
hospitalized for evaluation, care and treatment by voluntarily making written
application on a prescribed form. The agency to which the person applies may
accept and admit the person if the medical director of the agency or the
admitting officer believes that the person needs evaluation or will benefit
from care and treatment of a mental disorder or other personality disorder or
emotional condition in the agency. Informed consent as defined in section
36-501 may be given by the person's guardian pursuant to section 14-5312.01 or
agent appointed pursuant to chapter 32, article 6 of this title if that agent
was granted the authority to do this by the mental health care power of
attorney. If an agent gives informed consent as defined in section 36-501, an
evaluation shall be conducted pursuant to section 36-3284.
B.
Notwithstanding subsection C of this section, and except in the case of an
emergency admission, a minor who is in the custody of the juvenile court, who
is a ward of the juvenile court as a dependent child or who is adjudicated
delinquent or incorrigible shall not be admitted for evaluation or treatment
unless approved by the court on application filed by an entity as provided in
section 8-272 or 8-273.
C.
A minor may be admitted to a mental health agency as defined in section 8-201
by the written application of the parent, guardian or custodian of the minor,
or a person designated by the court if the parent, guardian or custodian is
without monetary resources to file an application or could not be located after
reasonable efforts and the minor is under the supervision of an adult probation
department after the following has occurred:
1. A psychiatric investigation by the medical director of
the mental health agency that carefully probes the child's social,
psychological and developmental background.
2. An interview with the child by the medical director of
the mental health agency.
3. The medical director has explained to the child and the
child's parent, guardian or custodian or to the person designated by the court
pursuant to this subsection the program of evaluation or treatment contemplated
and its probable length.
4. The medical director has explored and considered
available alternatives to inpatient treatment or evaluation.
5. The medical director of a mental health agency has
determined whether the child needs an inpatient evaluation or will benefit from
care and treatment of a mental disorder or other personality disorder or
emotional condition in the agency and whether the evaluation or treatment goals
can be accomplished in a less restrictive setting. A record of the reasons for
this determination shall be made.
D.
If the child's situation does not satisfy the requirements of subsection C of
this section, the application by the parent, guardian or custodian shall be
refused.
E.
All emergency admissions for mental health evaluation or treatment of children
shall be made pursuant to the standards and procedures in article 4 of this
chapter.
F.
If a parent, guardian or custodian is unavailable after a reasonable effort has
been made to locate the parent, guardian or custodian, the court shall appoint
a guardian for the child pursuant to title 14, chapter 5.
G.
The board of supervisors of the county of residence of a person who has
submitted an application for admission to the state hospital pursuant to
subsection A of this section shall provide transportation to the state hospital
for the person if it appears that the person is eligible for voluntary
admission to the state hospital after consultation between the state hospital
and the evaluation or screening agency. The county is responsible for that
expense to the extent the expense is not covered by any third party payor.
36-518.01. Case review of voluntary
admission of minor
A.
The medical director of a mental health agency shall review the case progress
of all minors admitted voluntarily to the agency at least every ten days. The
review shall establish the appropriateness of continued placement in a mental
health agency according to progress in care and the expected benefits of
continued inpatient care and treatment. The review shall include an interview
with the minor.
B.
The medical director shall state in writing in the minor's clinical record the
reasons for continued inpatient care and the objectives desired. The records of
the review shall be available to the parent or guardian on request. When the
child is a ward of the juvenile court or in custody pursuant to title 8, the
case review record shall be forwarded promptly to the juvenile court and the
court-appointed custodian of the child.
C.
For purposes of this section and section 36-518, "mental health
agency" and "medical director of a mental health agency" are as
defined in section 8-201.
36-519. Discharge of voluntary patients
A.
The medical director of the agency shall discharge any patient admitted
voluntarily who has recovered or who is no longer benefiting from the evaluation,
care or treatment available, except as provided in subsection B of this
section.
B.
Upon written request by a patient admitted pursuant to section 36-518,
subsection A or by the parent, guardian or custodian of a patient admitted
pursuant to section 36-518, subsection C, the patient shall be given a
discharge within twenty-four hours after the request, excluding weekends or
holidays unless the medical director of the agency has proceeded pursuant to
section 36-531, subsections B and C and section 36-533. The costs of such
proceedings shall be a charge against the county of the patient's residence.
C.
If the medical director of the agency finds that a patient admitted voluntarily
is gravely disabled and requires the service of a guardian or conservator or
both for the protection of health and property, he shall proceed pursuant to
section 36-531, subsections B and C and section 36-533 unless it is appropriate
to discharge the patient to suitable alternative arrangements for care,
treatment and protection.
ARTICLE
4 – COURT-ORDERED EVALUATION
36-520. Application for evaluation;
definition
A.
Any responsible individual may apply for a court-ordered evaluation of a person
who is alleged to be, as a result of a mental disorder, a danger to self or to
others, persistently or acutely disabled, or gravely disabled and who is
unwilling or unable to undergo a voluntary evaluation. The application shall be
made in the prescribed form and manner as adopted by the deputy director.
B.
The application for evaluation shall include the following data:
1. The name, and address if known,
of the proposed patient for whom evaluation is applied.
2. The age, date of birth, sex, race, marital status,
occupation, social security number, present location, dates and places of previous
hospitalizations, names and addresses of the guardian, spouse, next of kin and
significant other persons and other data that the deputy director may require
on the form to whatever extent that this data is known and is applicable to the
proposed patient.
3. The name, address and relationship of the person who is
applying for the evaluation.
4. A statement that the proposed patient is believed to be,
as a result of a mental disorder, a danger to self or to others, persistently
or acutely disabled or gravely disabled and the facts on which this statement
is based.
5. A statement that the applicant believes the proposed
patient is in need of supervision, care and treatment and the facts on which
this statement is based.
C.
The application shall be signed and notarized.
D.
The screening agency shall offer assistance to the applicant in preparation of
the application. Upon receipt of the application, the screening agency shall
act as prescribed in section 36-521 within forty-eight hours of the filing of
the application excluding weekends and holidays. If the application is not
acted upon within forty-eight hours, the reasons for not acting promptly shall
be reviewed by the director of the screening agency or the director's designee.
E.
If the applicant for the court-ordered evaluation presents the person to be
evaluated at the screening agency, the agency shall conduct a prepetition screening examination. Except in the case of an
emergency evaluation, the person to be evaluated shall not be detained or
forced to undergo prepetition screening against the
person's will.
F.
If the applicant for the court-ordered evaluation does not present the person
to be evaluated at the screening agency, the agency shall conduct the prepetition screening at the home of the person to be
evaluated or any other place the person to be evaluated is found. If prepetition screening is not possible, the screening agency
shall proceed as in section 36-521, subsection B.
G.
If a person is being treated by prayer or spiritual means alone in accordance
with the tenets and practices of a recognized church or religious denomination
by a duly accredited practitioner of that church or denomination, such person
may not be ordered evaluated, detained or involuntarily treated unless the
court has determined that the person is, as a result of mental disorder, a
danger to others or to self.
H.
Court-ordered evaluation or treatment pursuant to this chapter shall not
operate to change the legal residence of a patient.
I.
If the application is not acted upon because it has been determined that the
proposed patient does not need an evaluation, the agency after a period of six
months shall destroy the application and any other evidence of the application.
J.
For the purposes of this section, "person" includes a person who:
1. Is under eighteen years of age.
2. Has been transferred to the criminal division of the
superior court pursuant to section 8-327 or who has been charged with an
offense pursuant to section 13-501.
3. Is under the supervision of an adult probation
department.
36-521. Preparation of petition for
court-ordered evaluation; procedures for prepetition
screening
A.
Upon receiving the application for evaluation, the screening agency shall,
prior to filing a petition for court-ordered evaluation, provide prepetition screening within forty-eight hours excluding
weekends and holidays when possible to determine whether there is reasonable
cause to believe the allegations of the applicant for the court-ordered
evaluation, whether the person will voluntarily receive evaluation at a
scheduled time and place and whether he is persistently or acutely disabled,
gravely disabled or likely to present a danger to self or others until the
voluntary evaluation.
B.
After prepetition screening has been completed, the
screening agency shall prepare a report of opinions and conclusions. If prepetition screening is not possible, the screening agency
shall prepare a report giving reasons why the screening was not possible and
including opinions and conclusions of staff members who attempted to conduct prepetition screening or otherwise investigated the matter.
C.
If the prepetition screening report indicates that
there exists no reasonable cause to believe the allegations of the applicant
for the court-ordered evaluation, it shall be reviewed by the medical director
of the screening agency or his designee.
D.
If, based upon the allegations of the applicant for the court-ordered
evaluation and the prepetition screening report or
other information obtained while attempting to conduct a prepetition
screening, the agency determines that there is reasonable cause to believe that
the proposed patient is, as a result of mental disorder, a danger to self or to
others, is persistently or acutely disabled or is gravely disabled and that the
proposed patient is unable or unwilling to voluntarily receive evaluation or is
likely to present a danger to self or to others, is gravely disabled or will
further deteriorate before receiving a voluntary evaluation, it shall prepare a
petition for court-ordered evaluation and shall file the petition, which shall
be signed by the person who prepared the petition unless the county attorney
performs these functions. If the agency determines that there is reasonable
cause to believe that the person is in such a condition that without immediate
hospitalization he is likely to harm himself or others, it shall take all
reasonable steps to procure such hospitalization on an emergency basis.
E.
The agency may contact the county attorney in order to obtain his assistance in
preparing the petition for court-ordered evaluation, and the agency may request
the advice and judgment of the county attorney in reaching a decision as to
whether the court-ordered evaluation is justified.
F.
The county attorney may prepare or sign or file the petition if a court has
ordered the county attorney to prepare the petition.
G.
If a petition for court-ordered evaluation alleges danger to others as
described in section 36-501, the screening agency shall, prior to filing such
petition, contact the county attorney for a review of the petition. The county
attorney shall examine the petition and make one of the following written
recommendations:
1. That a criminal investigation is warranted.
2. That the screening agency shall file the petition.
3. That no further proceedings are warranted. The screening
agency shall consider such recommendation in determining whether a
court-ordered evaluation is justified and shall include such recommendation
with the petition if it decides to file the petition with the court.
H.
The petition shall be made in the form and manner prescribed by the deputy
director.
36-522. Voluntary evaluation
A.
If the petition for court-ordered evaluation is not filed because it has been
determined that the proposed patient will voluntarily receive an evaluation and
is unlikely to present a danger to self or others until the voluntary
evaluation, the evaluation agency provided for by the county, or selected by
the proposed patient, shall be immediately notified and shall provide
evaluation of the proposed patient at a scheduled time and place within five
days of the notice. The voluntary evaluation may be on an inpatient or
outpatient basis.
B.
Voluntary inpatient evaluation is subject to the provisions of article 3 of
this chapter.
C.
Voluntary outpatient evaluation shall conform to the requirements of section
36-530, subsection D and section 36-531, subsections B, C and D and shall
proceed only after the person to be evaluated has given consent to be evaluated
by signing a form prescribed by the deputy director which includes information
to the proposed patient that the patient-physician privilege does not apply and
that the evaluation may result in a petition for the person to undergo
court-ordered treatment or for guardianship. Voluntary evaluation may be
carried out only if chosen by the patient during the course of a prepetition screening after application for evaluation has
been made.
36-523. Petition for evaluation
A.
The petition for evaluation shall contain the following:
1. The name, address and interest in the case of the
individual who applied for the petition.
2. The name, and address if known,
of the proposed patient for whom evaluation is petitioned.
3. The present whereabouts of the proposed patient, if known.
4. A statement alleging that there is reasonable cause to
believe that the proposed patient has a mental disorder and is as a result a
danger to self or others, is persistently or acutely disabled or is gravely
disabled and is unwilling or unable to undergo voluntary evaluation.
5. A summary of the facts which support the allegations that
the proposed patient is dangerous, is persistently or
acutely disabled or is gravely disabled and unwilling or unable to be
voluntarily evaluated including the facts which brought the proposed patient to
the screening agency's attention.
6. Other information that the deputy director, with the
approval of the director, by rule or the court by rule or order may require.
B.
The petition shall request that the court issue an order requiring that the
proposed patient be given an evaluation and shall advise the court of both of
the following:
1. That the opinion of the petitioner is either that the
proposed patient is or is not in such a condition that without immediate or continuing
hospitalization he is likely to suffer serious physical harm or further
deterioration or inflict serious physical harm upon another person.
2. If the opinion of the petitioner is that the proposed
patient is not in the condition described in paragraph 1 of this subsection,
that the opinion of the petitioner is either that the evaluation should or
should not take place on an outpatient basis.
C.
The petition for evaluation shall be accompanied by the application for
evaluation, by the recommendation of the county attorney pursuant to section
36-521 and by a prepetition screening report, unless
such documents have not been prepared under a provision of law or in accordance
with an order of the court. The petition for evaluation shall also be accompanied
by a copy of the application for emergency admission if one exists.
D.
A petition and other forms required in a court may be filed only by the
screening agency which has prepared the petition.
E.
If the petition is not filed because it has been determined that the person
does not need an evaluation, the agency after a period of six months shall
destroy the petition and the various reports annexed to the petition as
required by this section.
36-524. Application for emergency
admission for evaluation; requirements
A.
A written application for emergency admission shall be made to an evaluation
agency before a person may be hospitalized in the agency.
B.
The application for emergency admission shall be made by a person with
knowledge of the facts requiring emergency admission. The applicant may be a
relative or friend of the person, a peace officer, the admitting officer or
another responsible person.
C.
The application shall be upon a prescribed form and shall include the
following:
1. A statement by the applicant that he believes on the
basis of personal observation that the person is, as a result of a mental
disorder, a danger to self or others, and that during the time necessary to
complete the prepetition screening procedures set
forth in sections 36-520 and 36-521 the person is likely without immediate
hospitalization to suffer serious physical harm or serious illness or is likely
to inflict serious physical harm upon another person.
2. The specific nature of the danger.
3. A summary of the observations upon which the statement of
danger is based.
4. The signature of the applicant.
D.
A telephonic application may be made no more than twenty-four hours prior to a
written application. A telephonic application shall be made by or in the
presence of a peace officer unless the application is made by a health care
provider who is licensed pursuant to title 32, chapter 13, 15, 17 or 19.1 and
who is directly involved with the care of a patient who is in a health care
facility licensed in this state. For an application made by a doctor or a
nurse, the original signature of the applicant on a facsimile copy of the
application is acceptable, does not have to be notarized and may be submitted
as the written application.
E.
If the person to be admitted is not already present at the evaluation agency
and if the admitting officer, based upon review of the written or telephonic
application and conversation with the applicant and peace officer, has
reasonable cause to believe that an emergency examination is necessary, the admitting
officer may advise the peace officer, that sufficient grounds exist to take the
person into custody and to transport the person to the evaluation agency. The
admitting officer shall not be held civilly liable for any acts committed by a
person whom the admitting officer did not advise be taken into custody if the
admitting officer has in good faith followed the requirements of this section.
36-525. Apprehension and transportation
by peace officers; immunity
A.
A peace officer shall on the advice of the admitting officer of the evaluation
agency pursuant to section 36-524, subsection E apprehend and transport a
person to an evaluation agency.
B.
In those instances in which the procedures set forth in section 36-524 are not
available, a peace officer may take into custody any individual he has probable
cause to believe, based on his own observations, is, as a result of mental
disorder, a danger to self or others, and that during the time necessary to
complete the prepetition screening procedures set forth
in sections 36-520 and 36-521 the person is likely without immediate
hospitalization to suffer serious physical harm or serious illness or to
inflict serious physical harm on another person. The peace officer shall
transport the person to a screening agency unless the person's condition or the
agency's location or hours makes such transportation impractical, in which
event the person shall be transported to an evaluation agency. A peace officer
is not held civilly liable for any acts committed by a person whom the peace
officer has not taken into custody pursuant to this section.
C.
If apprehension takes place on or about the premises of the apprehended person,
the officer shall take reasonable precautions to safeguard the premises and the
property thereon, unless such property and premises are in the possession of a
responsible relative or guardian.
D.
A peace officer who makes a good faith effort to follow the requirements of
this section is not subject to civil liability.
36-526. Emergency admission; examination;
petition for court-ordered evaluation
A.
Upon presentation of the person for emergency admission, an admitting officer
of an evaluation agency shall perform an examination of the person and may
admit the person to the agency as an emergency patient if the admitting officer
finds, as a result of his examination and investigation of the application for
emergency admission, that there is reasonable cause to believe that the person,
as a result of a mental disorder, is a danger to self or others, and that
during the time necessary to complete the prepetition
screening procedures set forth in sections 36-520 and 36-521 the person is
likely without immediate hospitalization to suffer serious physical harm or
serious illness or to inflict serious physical harm on another person. In the
event a person is hospitalized pursuant to this section, the admitting officer
may notify a screening agency and seek its assistance or guidance in developing
alternatives to involuntary confinement and in counseling the person and his
family.
B.
On the same or succeeding court day, the medical director in charge of the
agency shall file a petition for a court-ordered evaluation, unless the person
has been discharged or has become a voluntary patient. The petition need not
comply with the provisions of this chapter requiring preparation and filing of
a prepetition screening report but shall meet all
other requirements and shall seek an appropriate order pursuant to section
36-529.
36-527. Discharge and release; relief
from civil liability
A.
A person taken into custody for emergency admission may not be detained longer
than twenty-four hours excluding weekends and holidays following such detention
unless a petition for court-ordered evaluation is filed.
B.
A person admitted for emergency evaluation may be released at any time if, in
the opinion of the medical director in charge of the evaluation agency, release
is appropriate. The medical director shall not be held civilly liable for any
acts committed by a released patient if the medical director has in good faith
followed the requirements of this article. The patient may continue care and
treatment in the agency if he signs a voluntary application.
36-528. Emergency patients; duties of
agency; notification of family member; right to counsel
A.
A person detained under emergency detention shall be offered treatment for his
mental disorder to which he may consent. The person shall not be treated for
his mental disorder without his express consent, except that seclusion and mechanical
or pharmacological restraints may be employed as emergency measures for the
safety of the person or others pursuant to section 36-513.
B.
At the time a person is taken into custody for emergency evaluation, the
medical director in charge of the evaluation agency shall, subject to the
provisions of section 36-504, notify the person's guardian or, if none, a
member of the family other than a person who has made application for emergency
evaluation, if known, of the person's presence at the agency.
C.
At the earliest time possible during the evaluation, the agency shall inquire
into the need to safeguard and preserve the person's personal property or
premises. If no responsible relative or guardian is in possession of the
property or premises it shall proceed pursuant to the provisions of section
36-508, subsection C.
D.
The person detained shall be informed of his rights as stated in this section
and in article 2 of this chapter, including the right to consult an attorney.
He shall be advised that if he cannot employ an attorney, the court will
appoint one for him. The person shall be advised that if a petition for
evaluation is filed, the court will appoint the person an attorney to consult
with and, if he cannot employ his own counsel, to represent him.
36-529. Order for evaluation; order for
detention; hearing
A.
If, from the review of the petition for evaluation, the court does not
determine that the proposed patient is likely to present a danger to self or
others or further deteriorate prior to his hearing on court-ordered treatment,
but determines that there is reasonable cause to believe that the proposed
patient is, as a result of a mental disorder, a danger to self or others, is
persistently or acutely disabled or is gravely disabled, the court shall issue
an order directing the proposed patient to submit to an evaluation at a
designated time and place, specifying that the evaluation will take place on an
inpatient or an outpatient basis. The court may also order that if the person
does not or cannot so submit, that he be taken into custody by a police officer
and delivered to an evaluation agency. If the court makes such a conditional
order, it shall also make a conditional appointment of counsel for the person
to become effective when and if the person is taken into custody pursuant to
this section.
B.
If, from review of the petition for evaluation, there is reasonable cause to
believe that the proposed patient is, as a result of a mental disorder, a
danger to self or others, is persistently or acutely disabled or is gravely
disabled and that the person requires immediate or continued hospitalization
prior to his hearing on court-ordered treatment, the court shall order the
proposed patient taken into custody and evaluated at an evaluation agency. The
court shall promptly appoint counsel for the proposed patient. If an intercounty agreement authorizes the same, the court may
order that the evaluation be conducted in another county, and the superior
court in the county where the evaluation is conducted shall have concurrent
jurisdiction to make appropriate orders concerning the proposed patient.
C.
If the person is not taken into custody or if the evaluation pursuant to the
order of the court under subsection A or B is not initiated within fourteen days
from the date of the order, the order and petition for evaluation shall expire.
D.
If the person is involuntarily hospitalized, the person shall be informed by
his appointed attorney of his rights to a hearing to determine whether he
should be involuntarily hospitalized for evaluation and to be represented at
the hearing by an attorney. If the patient requests a hearing to determine
whether he should be involuntarily hospitalized during evaluation, the court
shall schedule a hearing at its first opportunity.
36-530. Evaluation and treatment
A.
A person admitted to an evaluation agency shall receive an evaluation as soon
as possible after the court's order for evaluation and, subject to the
provisions of sections 36-512 and 36-513 concerning the person's right to
refuse treatment, receive care and treatment as required by his condition for
the full period that he is hospitalized. A clinical record shall be kept for
each person which details all medical and psychiatric evaluations and all care
and treatment received by the person.
B.
A person receiving an evaluation on an inpatient basis will remain in the
facility during the evaluation, which shall be completed in less than
seventy-two hours.
C.
A person being evaluated on an outpatient basis will not remain in the facility
overnight but will be examined during the usual outpatient working hours of the
facility on a schedule of appointments. The evaluation will be completed not
later than the fourth day after the first appointment, excluding Saturdays, Sundays
and holidays.
D.
If a person who has been directed by court order to appear for evaluation does
not appear, or in the case of an outpatient evaluation does not complete the
appointments scheduled, the evaluation agency shall notify the court and the
person's guardian, if any, of the known facts and circumstances and, if
appropriate, request that the court order the patient taken into custody for
evaluation on an inpatient basis.
36-531. Evaluation; possible
dispositions; release
A.
A person being evaluated on an inpatient basis in an evaluation agency shall be
released if, in the opinion of the medical director of the agency, further
evaluation is not appropriate unless the person makes application for further
care and treatment on a voluntary basis.
B.
If it is determined upon an evaluation of the patient's condition that he is,
as a result of a mental disorder, a danger to self or to others, is
persistently or acutely disabled or is gravely disabled, the medical director
in charge of the agency which provided the evaluation shall, unless the person
makes application for further care and treatment on a voluntary basis, prepare,
sign and file a petition for court-ordered treatment unless the county attorney
performs the functions of preparing, signing or filing the petition as provided
in subsection C of this section.
C.
The agency may contact the county attorney to obtain his assistance in
preparing the petition for court-ordered treatment, and the agency may request
the advice and judgment of the county attorney in reaching a decision as to
whether court-ordered treatment is justified.
D.
A person being evaluated on an inpatient basis in an evaluation agency shall be
released within seventy-two hours, excluding weekends and holidays, from the
time that he is hospitalized pursuant to a court order for evaluation, unless
the person makes application for further care and treatment on a voluntary
basis or unless a petition for court-ordered treatment has been filed pursuant
to subsection B of this section.
E.
The department of health services may conduct jointly with a school district,
directly or indirectly, an educational evaluation pursuant to sections 15-765
and 15-766 for nonadjudicated youth. The evaluation
information may be shared by and among authorized personnel employed by the
department of health services and the department of education, or authorized
personnel from the local education agency, for purposes of ensuring the
provision of special education and related services as required by the individuals
with disabilities education act (20 United States Code sections 1400 through
1415).
ARTICLE
5 – COURT-ORDERED TREATMENT
36-533. Petition for treatment
A.
The petition for court-ordered treatment shall allege:
1. That the patient is in need of a period of treatment
because the patient, as a result of mental disorder, is a danger to self or to
others, is persistently or acutely disabled or is gravely disabled.
2. The treatment alternatives which are appropriate or
available.
3. That the patient is unwilling to accept or incapable of
accepting treatment voluntarily.
B.
The petition shall be accompanied by the affidavits of the two physicians who
conducted the examinations during the evaluation period and by the affidavit of
the applicant for the evaluation, if any. The affidavits of the physicians
shall describe in detail the behavior which indicates that the person, as a
result of mental disorder, is a danger to self or to others, is persistently or
acutely disabled or is gravely disabled and shall be based upon the physician's
examination of the patient and the physician's study of information about the
patient. A summary of the facts which support the allegations of the petition
shall be included.
C.
The petition shall request the court to issue an order requiring the person to
undergo a period of treatment.
D.
In cases of grave disability the petition shall also include:
1. A statement that in the opinion of the petitioner the
gravely disabled person does or does not require guardianship or conservatorship, or both, under the provisions of title 14
and the reasons on which the statement is based.
2. A request that the court order an independent
investigation and report for the court if in the opinion of the petitioner the
person does require guardianship or conservatorship,
or both.
3. A statement that in the opinion of the petitioner the
gravely disabled person does or does not require temporary guardianship or conservatorship, or both, and the reasons on which the
statement is based.
4. A request that the court appoint a temporary guardian or
conservator, or both, if in the opinion of the petitioner the person does
require temporary guardianship or conservatorship, or
both.
E.
A copy of the petition in cases of grave disability shall be mailed to the public
fiduciary in the county of the patient's residence or in which the patient was
found before evaluation and to any person nominated as guardian or conservator.
F.
A copy of all petitions shall be mailed to the superintendent of the
36-534. Change to voluntary status;
discharge
If,
after a petition for court-ordered treatment has been filed and prior to the
hearing, the medical director of the agency finds that it is more appropriate
to discharge the patient or to admit the proposed patient on a voluntary basis,
the medical director shall, after receiving approval from the court, either
discharge the patient or admit the patient for further treatment on a voluntary
basis.
36-535. Detention of proposed patient;
time of hearing; released patient; intervention by division
A.
If, upon the filing of a petition for court-ordered treatment, the patient is
not then detained in an agency, the court shall order the detention of the
patient in the agency which conducted the evaluation if the court determines
that the patient is likely to present a danger to self or others before the
conclusion of the hearing or is not likely to appear at the hearing on the
petition if not detained. The court shall issue such orders as are necessary to
provide for the apprehension, transportation and detention of the proposed
patient. The court shall appoint counsel for the proposed patient if one has
not been previously appointed.
B.
The court shall either release the proposed patient or order the hearing to be
held within six days after the petition is filed, unless the proposed patient,
upon consultation with his attorney, determines that it would be in his best
interest to request a continuance which may be for a maximum of thirty days.
C.
If after reviewing the petition with its attached material and other evidence
at hand the court finds that the patient is not, as a result of mental
disorder, a danger to self or others, persistently or acutely disabled or
gravely disabled, he shall be released.
D.
The division, acting on behalf of the state hospital, may intervene as a party
to the proceedings upon any petition for court-ordered treatment and may appear
as a party at the hearing on the petition by filing a written notice of
intervention with the clerk of the superior court in the county in which the
petition was filed, at any time before either the original time set for hearing
or the time to which the hearing is continued. The intervenor
at the hearing may cross-examine any witnesses presented by other parties
pursuant to section 36-539, may subpoena and present witnesses of its own,
including physicians, and may present other evidence. The intervenor
may, upon stipulation with all other parties or upon order of the court, cause
physicians to personally conduct mental status examinations of the proposed
patient and to testify as to their opinions concerning whether the proposed
patient is, as a result of mental disorder, a danger to self or to others, is
persistently or acutely disabled or is gravely disabled and as to whether the
proposed patient requires treatment. This subsection applies in addition to all
rules of evidence, the
36-536. Service of petition; counsel
for proposed patient; notice
A. At least seventy-two hours before the court conducts the hearing on the petition for court-ordered treatment, a copy of the petition and affidavits in support thereof and the notice of the hearing shall be served upon the patient, who shall be informed of the purpose of the hearing and shall be advised of his right to consult counsel. If the patient has not employed counsel, counsel shall be appointed by the court at least three days before the hearing. If at the time of the petition for evaluation, the patient had counsel, the same attorney should, if possibl