Bill Text: MS HB1437 | 2012 | Regular Session | Introduced
Bill Title: Mental health; revise laws for involuntary treatment of people with mental illness.
Sponsorship: Partisan Bill (Republican 1)
Status: (Failed) 2012-03-06 - Died In Committee [HB1437 Detail]
Download: Mississippi-2012-HB1437-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Public Health and Human Services
By: Representative Hood (By Request)
House Bill 1437
AN ACT TO AMEND SECTION 41-21-63, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE FOR INVOLUNTARY OUTPATIENT TREATMENT; TO AMEND SECTION 41-21-65, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE PROCEDURE BY WHICH INVOLUNTARY OUTPATIENT TREATMENT MAY BE SOUGHT THROUGH THE CHANCERY COURT; TO AMEND SECTION 41-21-67, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE APPOINTMENT OF THE COUNSEL OF THE PATIENT FOR WHOM INVOLUNTARY OUTPATIENT TREATMENT IS SOUGHT, PROVIDED THAT THE PATIENT IS NOT OTHERWISE REPRESENTED BY COUNSEL; TO AMEND SECTION 41-21-71, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE TIME FRAME FOR THE HEARING ON THE PETITION FOR INVOLUNTARY OUTPATIENT TREATMENT; TO AMEND SECTION 41-21-73, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE PROCEDURE OF THE HEARING ON THE PETITION FOR INVOLUNTARY OUTPATIENT TREATMENT; TO AMEND SECTION 41-21-74, MISSISSIPPI CODE OF 1972, TO OUTLINE THE METHOD FOR TREATING A PATIENT ORDERED TO INVOLUNTARY OUTPATIENT TREATMENT UNDER A COURT ORDER; TO CREATE NEW SECTION 41-21-101.1, MISSISSIPPI CODE OF 1972, TO AUTHORIZE LICENSED TREATMENT FACILITIES TO RECEIVE PATIENTS FOR VOLUNTARY ADMISSION; TO CREATE NEW SECTION 41-21-101.2, MISSISSIPPI CODE OF 1972, TO AUTHORIZE LICENSED TREATMENT FACILITIES TO RECEIVE PATIENTS FOR INVOLUNTARY ADMISSION; TO AMEND SECTION 41-21-103, MISSISSIPPI CODE OF 1972, TO REMOVE THE PROVISION FOR VOLUNTARY ADMISSION BY A COMPETENT ADULT TO TREATMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-21-63, Mississippi Code of 1972, is amended as follows:
41-21-63. (1) No person, other than persons charged with crime, shall be involuntarily committed to a public treatment facility except under the provisions of Sections 41-21-61 through 41-21-107 or 43-21-611 or 43-21-315. However, nothing herein shall be construed to repeal, alter or otherwise affect the provisions of Section 35-5-31 or to affect or prevent the involuntary commitment of persons to the Veterans Administration or other agency of the United States under the provisions of and in the manner specified in those sections.
(2) The chancery court, or the chancellor in vacation shall have jurisdiction under Sections 41-21-61 through 41-21-107 except over persons with unresolved felony charges pending.
(3) The circuit court shall have jurisdiction under Sections 99-13-7, 99-13-9 and 99-13-11.
(4) A person may be ordered to involuntary outpatient placement upon a finding of the court that by clear and convincing evidence:
(a) The person is eighteen (18) years of age or older;
(b) The person has a mental illness;
(c) The person is unlikely to survive safely in the community without supervision, based on a clinical determination;
(d) The person has a history of lack of compliance with treatment for a mental illness;
(e) The person has:
(i) At least twice within the immediately preceding thirty-six (36) months been involuntarily committed to a receiving or treatment facility as defined in Section 41-21-61(i), or has received mental health services in a forensic or correctional facility. The thirty-six month period does not include any period during which the person was admitted or incarcerated; or
(ii) Engaged in one or more acts of serious violent behavior toward himself or others, or attempted serious bodily harm to himself or others, within the preceding thirty-six (36) months;
(f) The person is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment plan and either he or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment, or he or she is unable to determine for himself whether placement is necessary;
(g) In view of the person's treatment history and current behavior, the person is in need of involuntary outpatient placement in order to prevent a relapse or deterioration that would be likely to result in serious bodily harm to himself or herself or others, or a substantial harm to his or her well-being as set forth in Section 41-21-61(j);
(h) It is likely that the person will benefit from involuntary outpatient placement; and
(i) All available, less restrictive alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate or unavailable.
(5) Involuntary outpatient placement.
(a) (i) A person not currently placed in involuntary inpatient treatment who is being recommended for involuntary outpatient placement by the administrator of the receiving treatment facility where the patient has been examined may be retained by the facility after adherence to the notice procedures provided in Section 41-21-73(1). The recommendation must be supported by the opinion of two (2) reputable, licensed physicians or one (1) reputable, licensed physician and either one (1) psychologist, nurse practitioner or physician assistant, both of whom have personally examined the patient within the preceding seventy-two (72) hours, that the criteria for involuntary outpatient placement are met. Such recommendation must be entered on an involuntary outpatient placement certificate that authorizes the receiving treatment facility to retain the patient pending completion of a hearing. The certificate shall be made a part of the patient's clinical record.
(ii) If the patient has been stabilized and no longer meets the criteria for involuntary examination under Section 41-21-101.2, the patient must be released from the receiving treatment facility while awaiting the hearing for involuntary outpatient treatment. Before filing a petition for involuntary outpatient treatment, the administrator of a receiving treatment facility or a designated department representative must identify the service provider that will have primary responsibility for service provision under an order for involuntary outpatient placement, unless the person is otherwise participating in outpatient psychiatric treatment and is not in need of public financing for that treatment, in which case the individual, if eligible, may be ordered to involuntary treatment under the existing psychiatric treatment relationship.
(iii) The service provider shall prepare a written proposed treatment plan in consultation with the patient or the patient's guardian advocate, if appointed, for the court's consideration for inclusion in the involuntary outpatient placement order. The service provider shall also provide a copy of the proposed treatment plan to the patient and the administrator of the receiving treatment facility. The treatment plan must specify the nature and extent of the patient's mental illness, address the reduction of symptoms that necessitate involuntary outpatient placement, and include measurable goals and objectives for the services and treatment that are provided to treat the person's mental illness and assist the person in living and functioning in the community or to prevent a relapse or deterioration. Service providers may select and supervise other individuals to implement specific aspects of the treatment plan. The services in the treatment plan must be deemed clinically appropriate by a physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker who consults with, or is employed or contracted by, the service provider. The service provider must certify to the court in the proposed treatment plan whether sufficient services for improvement and stabilization are currently available and whether the service provider agrees to provide those services. If the service provider certifies that the services in the proposed treatment plan are not available, the petitioner may not file the petition.
(b) If a person currently in involuntary inpatient treatment meets the criteria for involuntary outpatient treatment, the administrator of the treatment facility may, before the expiration of the period during which the treatment facility is authorized to retain the patient, recommend involuntary outpatient placement. The recommendation must be supported by the opinion of two (2) reputable, licensed physicians or one (1) reputable, licensed physician and either one (1) psychologist, nurse practitioner or physician assistant, both of whom have personally examined the patient within the preceding seventy-two (72) hours, that the criteria for involuntary outpatient placement are met. Such recommendation must be entered on an involuntary outpatient placement certificate, and the certificate must be made a part of the patient's clinical record.
(c) (i) The service provider that will have primary responsibility for service provision shall be identified to the respondent before the order for involuntary outpatient placement and must, before filing a petition for involuntary outpatient placement, certify to the court whether the services recommended in the patient's discharge plan are available in the local community and whether the service provider agrees to provide those services. The service provider must develop with the patient, or the patient's guardian advocate, if appointed, a treatment or service plan that addresses the needs identified in the discharge plan. The plan must be deemed to be clinically appropriate by a physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker, as defined in this chapter, who consults with, or is employed or contracted by, the service provider.
(ii) If the service provider certifies that the services in the proposed treatment or service plan are not available, the petitioner may not file the petition.
SECTION 2. Section 41-21-65, Mississippi Code of 1972, is amended as follows:
41-21-65. (1) It is the intention of the Legislature that the filing of an affidavit under this section be a simple, inexpensive, uniform, and streamlined process for the purpose of facilitating and expediting the care of individuals in need of treatment.
(2) (a) If any person is alleged to be in need of treatment, any relative of the person, or any interested person, may make affidavit of that fact and shall file the affidavit with the clerk of the chancery court of the county in which the person alleged to be in need of treatment resides; provided, however, that a chancellor or duly appointed special master may, in his or her discretion, hear the matter in the county in which the person may be found. The chancellor is authorized to immediately transfer the cause of a person alleged to be in need of treatment from the county where the person was found to the person's county of residence. The affidavit shall set forth the name and address of the proposed patient's nearest relatives, if known, and the reasons for the affidavit. The affidavit must contain factual descriptions of the proposed patient's recent behavior, including a description of the behavior, where it occurred, and over what period of time it occurred, if known. Each factual allegation may be supported by observations of witnesses named in the affidavit. Because of the emergency nature of those affidavits, at the affiant's request the chancery clerk shall provide the affiant with the one-page affidavit form developed by the Department of Mental Health, which the affiant may complete and file without the need for consulting or retaining an attorney. The Department of Mental Health, in consultation with the Mississippi Chancery Clerks' Association, shall develop a simple, one-page affidavit form for the use of affiants as provided in this subsection, which shall be used in all counties in the state. No chancery clerk shall require an affiant to retain an attorney for the filing of an affidavit under this section.
(b) (i) A petition for involuntary outpatient placement may be filed by the administrator of a receiving treatment facility or the administrator of a treatment facility.
(ii) Each required criterion for involuntary outpatient placement must be alleged and substantiated in the petition for involuntary outpatient placement. A copy of the certificate recommending involuntary outpatient placement completed by a qualified professional specified in Section 41-21-63(5) must be attached to the petition. A copy of the proposed treatment plan must be attached to the petition. Before the petition is filed, the service provider shall certify that the services in the proposed treatment plan are available. If the necessary services are not available in the patient's local community to respond to the person's individual needs, the petition may not be filed.
(iii) The petition for involuntary outpatient placement must be filed in the county where the patient is located, unless the patient is being placed from a state treatment facility, in which case the petition must be filed in the county where the patient will reside. When the petition has been filed, the clerk of the court shall provide copies of the petition and the proposed treatment plan to the patient, the patient's guardian or representative and counsel for the patient. A fee may not be charged for filing a petition under this subsection.
(3) The chancery clerk may charge the affiant a total fee for all services equal to the amount set out in Section 25-7-9(2)(o), and the appropriate state and county assessments as required by law.
(4) The prohibition against charging the affiant other fees, expenses, or costs shall not preclude the imposition of monetary criminal penalties under Section 41-21-107 or any other criminal statute, or the imposition by the chancellor of monetary penalties for contempt if the affiant is found to have filed an intentionally false affidavit or filed the affidavit in bad faith for a malicious purpose.
SECTION 3. Section 41-21-67, Mississippi Code of 1972, is amended as follows:
41-21-67. (1) Whenever the affidavit provided for in Section 41-21-65 is filed with the chancery clerk, the clerk, upon direction of the chancellor of the court, shall issue a writ directed to the sheriff of the proper county to take into his or her custody the person alleged to be in need of treatment and to bring the person before the clerk or chancellor, who shall order pre-evaluation screening and treatment by the appropriate community mental health center established under Section 41-19-31 and for examination as set forth in Section 41-21-69. The order may provide where the person shall be held before the appearance before the clerk or chancellor. However, when the affidavit fails to set forth factual allegations and witnesses sufficient to support the need for treatment, the chancellor shall refuse to direct issuance of the writ. Reapplication may be made to the chancellor. If a pauper's affidavit is filed by a guardian for commitment of the ward of the guardian, the court shall determine if the ward is a pauper and if the ward is determined to be a pauper, the county of the residence of the respondent shall bear the costs of commitment, unless funds for those purposes are made available by the state.
In any county in which a Crisis Intervention Team has been established under the provisions of Sections 41-21-131 through 41-21-143, the clerk, upon the direction of the chancellor, may require that the person be referred to the Crisis Intervention Team for appropriate psychiatric or other medical services before the issuance of the writ.
(2) Upon issuance of the writ, the chancellor shall immediately appoint and summon two (2) reputable, licensed physicians or one (1) reputable, licensed physician and either one (1) psychologist, nurse practitioner or physician assistant to conduct a physical and mental examination of the person at a place to be designated by the clerk or chancellor and to report their findings to the clerk or chancellor. However, any nurse practitioner or physician assistant conducting the examination shall be independent from, and not under the supervision of, the other physician conducting the examination. In all counties in which there is a county health officer, the county health officer, if available, may be one (1) of the physicians so appointed. Neither of the physicians nor the psychologist, nurse practitioner or physician assistant selected shall be related to that person in any way, nor have any direct or indirect interest in the estate of that person nor shall any full-time staff of residential treatment facilities operated directly by the State Department of Mental Health serve as examiner.
(3) The clerk shall immediately ascertain whether the respondent is represented by an attorney, and if it is determined that the respondent does not have an attorney, the clerk shall immediately notify the chancellor of that fact. If the chancellor determines that the respondent for any reason does not have the services of an attorney, the chancellor shall within one (1) court working day after the filing of a petition for involuntary outpatient placement, the court shall appoint an attorney to represent the respondent who is the subject of the petition, unless the respondent is otherwise represented by counsel. The clerk of the court shall immediately notify the attorney of the appointment. The attorney shall represent the person until the petition is dismissed, the court order expires, or the patient is discharged from involuntary outpatient placement. An attorney who represents the patient shall have access to the patient, witnesses, and records relevant to the presentation of the patient's case and shall represent the interests of the patient, regardless of the source of payment to the attorney.
(4) If the chancellor determines that there is probable cause to believe that the respondent is mentally ill and that there is no reasonable alternative to detention, the chancellor may order that the respondent be retained as an emergency patient at any licensed medical facility for evaluation by a physician, nurse practitioner or physician assistant and that a peace officer transport the respondent to the specified facility. If the community mental health center serving the county has partnered with Crisis Intervention Teams under the provisions of Sections 41-21-131 through 41-21-143, the order may specify that the licensed medical facility be a designated single point of entry within the county or within an adjacent county served by the community mental health center. If the person evaluating the respondent finds that the respondent is mentally ill and in need of treatment, the chancellor may order that the respondent be retained at the licensed medical facility or any other available suitable location as the court may so designate pending an admission hearing. If necessary, the chancellor may order a peace officer or other person to transport the respondent to that facility or suitable location. Any respondent so retained may be given such treatment as is indicated by standard medical practice. However, the respondent shall not be held in a hospital operated directly by the State Department of Mental Health, and shall not be held in jail unless the court finds that there is no reasonable alternative.
(5) Whenever a licensed psychologist, nurse practitioner or physician assistant who is certified to complete examinations for the purpose of commitment or a licensed physician has reason to believe that a person poses an immediate substantial likelihood of physical harm to himself or others or is gravely disabled and unable to care for himself by virtue of mental illness, as defined in Section 41-21-61(e), then the physician, psychologist, nurse practitioner or physician assistant may hold the person or may admit the person to and treat the person in a licensed medical facility, without a civil order or warrant for a period not to exceed seventy-two (72) hours. However, if the seventy-two-hour period begins or ends when the chancery clerk's office is closed, or within three (3) hours of closing, and the chancery clerk's office will be continuously closed for a time that exceeds seventy-two (72) hours, then the seventy-two-hour period is extended until the end of the next business day that the chancery clerk's office is open. The person may be held and treated as an emergency patient at any licensed medical facility, available regional mental health facility, or crisis intervention center. The physician or psychologist, nurse practitioner or physician assistant who holds the person shall certify in writing the reasons for the need for holding.
If a person is being held and treated in a licensed medical facility, and that person decides to continue treatment by voluntarily signing consent for admission and treatment, the seventy-two-hour hold may be discontinued without filing an affidavit for commitment. Any respondent so held may be given such treatment as indicated by standard medical practice. Persons acting in good faith in connection with the detention of a person believed to be mentally ill shall incur no liability, civil or criminal, for those acts.
SECTION 4. Section 41-21-71, Mississippi Code of 1972, is amended as follows:
41-21-71. If, as a result of the examination, the examiners certify that the person is not in need of treatment, the chancellor or clerk shall dismiss the affidavit without the need for a further hearing. If the chancellor or chancery clerk finds, based upon the physicians' or the physician's and a psychologist's, nurse practitioner's or physician assistant's certificate and any other relevant evidence, that the respondent is in need of treatment and that certificate is filed with the chancery clerk within forty-eight (48) hours after the order for examination, or extension of that time as provided in Section 41-21-69, the clerk shall immediately set the matter for a hearing. The hearing shall be set within five (5) working days of the filing of the certificate * * *. In no event shall the hearing be more than seven (7) working days after the filing of the certificate. The patient is entitled, with the concurrence of the patient's counsel, to at least one (1) continuance of the hearing. The continuance shall be for a period of up to four (4) weeks.
SECTION 5. Section 41-21-73, Mississippi Code of 1972, is amended as follows:
41-21-73. (1) The hearing shall be conducted before the chancellor. However, the hearing may be held at the location where the respondent is being held. The hearing shall be as convenient to the patient as is consistent with orderly procedure, and shall be conducted in physical settings not likely to be injurious to the patient's condition. Within a reasonable period of time before the hearing, notice of same shall be provided the patient, patient's attorney, patient's guardian, patient's guardian advocate and representative, which shall include:
(a) Notice of the date, time and place of the hearing;
(b) A clear statement of the purpose of the hearing;
(c) The possible consequences or outcome of the hearing;
(d) The facts that have been alleged in support of the need for commitment;
(e) Notice that an attorney has been appointed to represent the patient in the proceeding, if the patient is not otherwise represented by counsel;
(f) Notice that the patient, the patient's guardian or representative, or the administrator may apply for a change of venue for the convenience of the parties or witnesses or because of the condition of the patient;
(g) Notice that the patient is entitled to an independent expert examination and, if the patient cannot afford such an examination, that the court will provide for one;
(h) The names, addresses and telephone numbers of the examiner(s); and
(i) The names of other witnesses expected to testify.
This notice shall be provided to the patient orally and in writing, in the language and terminology that the patient can understand, and, if needed, the treatment facility shall provide an interpreter for the patient. Notice to a patient's guardian, guardian advocate, attorney and representative shall be given under Mississippi Rule of Civil Procedure 4.
(2) The respondent must be present at the hearing unless the chancellor determines that the presence of the respondent at the hearing is not consistent with the best interests of the patient and if the patient's counsel does not object, the court may waive the presence of the patient from all or any portion of the hearing. The court may appoint a master to preside at the hearing. One of the professionals who executed the involuntary outpatient placement certificate shall be a witness. The patient and the patient's guardian or representative shall be informed by the court of the right to an independent expert examination. If the patient cannot afford such an examination, the court shall provide for one.
If the respondent is present at the * * * hearing, the respondent shall not be so under the influence or suffering from the effects of drugs, medication or other treatment so as to be hampered in participating in the proceedings. The court, at the time of the hearing, shall be presented a record of all drugs, medication or other treatment that the respondent has received pending the hearing, unless the court determines that such a record would be impractical and documents the reasons for that determination.
(3) The respondent 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 independent expert's reports shall be confidential and not discoverable, unless the expert is called as a witness for the patient at the hearing. The court shall allow testimony from individuals, including family members, deemed by the court to be relevant under state law, regarding the person's prior history and how that prior history relates to the person's current condition. The testimony in the hearing must be given under oath, and the proceedings must be recorded. The rules of evidence applicable in other judicial proceedings in this state shall be followed.
(4) (a) If the court finds by clear and convincing evidence that the proposed patient is a person with mental illness or a person with an intellectual disability and, if after careful consideration of reasonable alternative dispositions, including, but not limited to, dismissal of the proceedings, the court finds that there is no suitable alternative to judicial commitment, the court shall commit the patient for involuntary inpatient treatment in the least restrictive treatment facility that can meet the patient's treatment needs. Treatment before admission to a state-operated facility to receive involuntary inpatient treatment shall be located as closely as possible to the patient's county of residence and the county of residence shall be responsible for that cost. Admissions to state-operated facilities shall be in compliance with the catchment areas established by the State Department of Mental Health. A nonresident of the state may be committed for involuntary inpatient treatment or confinement in the county where the person was found.
(b) (i) If the court concludes that the patient meets the criteria for involuntary outpatient placement under Section 41-21-63(4), the court shall issue an order for involuntary outpatient placement. The court order shall be for a period of up to six (6) months. The order must specify the nature and extent of the patient's mental illness. The order of the court and the treatment plan shall be made part of the patient's clinical record. The service provider shall discharge a patient from involuntary outpatient placement when the order expires or any time the patient no longer meets the criteria for involuntary placement. Upon discharge, the service provider shall send a certificate of discharge to the court.
(ii) The court may not order the service provider to provide services if the program or service is not available in the patient's local community, if there is no space available in the program or service for the patient, or if funding is not available for the program or service. After the placement order is issued, the service provider and the patient may modify provisions of the treatment plan. For any material modification of the treatment plan to which the patient or the patient's guardian advocate, if appointed, does not agree, the service provider shall send notice of the modification to the court. Any material modifications of the treatment plan which are contested by the patient or the patient's guardian advocate, if appointed, must be approved or disapproved by the court consistent with Section 41-21-63(5).
(iii) If, in the clinical judgment of the treating physician, psychologist or therapist, the patient has failed or has refused to comply with the treatment ordered by the court, and, in the clinical judgment of the physician, psychologist or therapist, efforts were made to solicit compliance and the patient may meet the criteria for involuntary examination, a person may be brought to a receiving treatment facility under the requirements set out in Section 41-21-101.2. If, after examination, the patient does not meet the criteria for involuntary inpatient placement under Section 41-21-101.2, the patient must be discharged from the receiving treatment facility. The involuntary outpatient treatment order shall remain in effect unless the service provider determines that the patient no longer meets the criteria for involuntary outpatient treatment or until the order expires. The service provider must determine whether modifications should be made to the existing treatment plan and must attempt to continue to engage the patient in treatment. For any material modification of the treatment plan to which the patient or the patient's guardian advocate, if appointed, does agree, the service provider shall send notice of the modification to the court. Any material modifications of the treatment plan which are contested by the patient or the patient's guardian advocate, if appointed, must be approved by the court or consistent with Section 41-21-63(5).
(c) If, at any time before the conclusion of the initial hearing on involuntary outpatient placement, it appears to the court that the person does not meet the criteria for involuntary outpatient placement under this section but, instead, meets the criteria for involuntary inpatient treatment, the court may order the person admitted for examination under Section 41-21-101.2. If the person instead meets the criteria for involuntary assessment, protective custody, or involuntary admission, the court may order the person to be admitted for involuntary assessment for a period of five (5) days under Section 41-21-101.2.
(d) The administrator of the receiving treatment facility or the designated department representative shall provide a copy of the court order and adequate documentation of a patient's mental illness to the service provider for involuntary outpatient placement. Such documentation must include any advance directives made by the patient, a psychiatric evaluation of the patient, and any evaluations of the patient performed by a clinical psychologist or a clinical social worker.
(e) Alternatives to commitment to inpatient or outpatient care may include, but shall not be limited to: voluntary * * * outpatient commitment for treatment with specific reference to a treatment regimen, day treatment in a hospital, night treatment in a hospital, placement in the custody of a friend or relative, or the provision of home health services.
For persons involuntarily committed to inpatient treatment as having mental illness or having an intellectual disability, the initial involuntary inpatient commitment shall not exceed three (3) months.
(5) No person shall be involuntarily committed to any treatment facility whose primary problems are the physical disabilities associated with old age or birth defects of infancy.
(6) The court shall state the findings of fact and conclusions of law that constitute the basis for the order of involuntary commitment. The findings shall include a listing of less restrictive alternatives considered by the court and the reasons that each was found not suitable.
(7) A stenographic transcription shall be recorded by a stenographer or electronic recording device and retained by the court.
(8) Notwithstanding any other provision of law to the contrary, neither the State Board of Mental Health or its members, nor the State Department of Mental Health or its related facilities, nor any employee of the State Department of Mental Health or its related facilities, unless related to the respondent by blood or marriage, shall be assigned or adjudicated custody, guardianship, or conservatorship of the respondent.
(9) The county where a person in need of treatment is found is authorized to charge the county of the person's residence for the costs incurred while the person is confined in the county where such person was found.
SECTION 6. Section 41-21-74, Mississippi Code of 1972, is amended as follows:
41-21-74. (1) If the commitment order directs involuntary outpatient treatment, the service provider shall treat the patient under the treatment plan incorporated into the court order for involuntary outpatient treatment.
(2) If the respondent fails or clearly refuses to comply with the treatment plan incorporated into the court order for involuntary outpatient treatment, the director of the treatment facility, his designee or an interested person shall make all reasonable efforts to solicit the respondent's compliance. These efforts shall be documented and, if the respondent fails or clearly refuses to comply with outpatient treatment after such efforts are made, such efforts shall be documented with the court by affidavit. Upon the filing of the affidavit, the sheriff of the proper county is authorized to take the respondent into his custody and brought to a receiving treatment facility for involuntary examination, under the requirements set out in Section 41-21-101.2. If, after examination, the patient does not meet the criteria for involuntary inpatient placement under Section 41-21-101.2, the patient must be discharged from the receiving treatment facility. The involuntary outpatient placement order shall remain in effect unless the service provider determines that the patient no longer meets the criteria for involuntary outpatient placement or until the order expires. The service provider must determine whether modifications should be made to the existing treatment plan and must attempt to continue to engage the patient in treatment. For any material modification of the treatment plan to which the patient or the patient's guardian advocate, if appointed, does agree, the service provider shall send notice of the modification to the court. Any material modifications of the treatment plan which are contested by the patient or the patient's guardian advocate, if appointed, must be approved by the court or consistent with Section 41-21-63(5).
(3) If the person continues to meet the criteria for involuntary outpatient placement, the service provider shall, before the expiration of the period during which the treatment is ordered for the person, file in the chancery court a petition for continued involuntary outpatient placement. The existing involuntary outpatient order remains in effect until disposition on the petition for continued involuntary outpatient placement. A certificate shall be attached to the petition which includes a statement from the person's physician, psychologist or therapist justifying the request, a brief description of the patient's treatment during the time he or she was involuntarily placed, and an individualized plan of continued treatment. The service provider shall develop the individualized plan of continued treatment in consultation with the patient or the patient's guardian advocate, if appointed. When the petition has been filed, the clerk of the court shall provide copies of the certificate and the individualized plan of continued treatment to the patient, the patient's guardian advocate, and the patient's attorney.
(4) Within one (1) court working day after the filing of a petition for involuntary outpatient placement, the court shall appoint an attorney to represent the person who is the subject of the petition, unless the person is otherwise represented by counsel. The clerk of the court shall immediately notify the attorney of the appointment. The attorney shall represent the person until the petition is dismissed, the court order expires, or the patient is discharged from involuntary outpatient placement. An attorney who represents the patient shall have access to the patient, witnesses, and records relevant to the presentation of the patient's case and shall represent the interests of the patient, regardless of the source of payment to the attorney.
(5) Hearings on petitions for continued involuntary outpatient placement shall be before the chancery court of the county where the public facility is located or the committing court shall have jurisdiction over matters concerning outpatient commitments when such an order is sought subsequent to an inpatient course of treatment under Sections 41-21-61 through 41-21-107, 43-21-611, 99-13-7 and 99-13-9. An outpatient shall not have or be charged for a recommitment process within a period of twelve (12) months of the initial outpatient order. The procedures for obtaining an order under this subsection shall be in accordance with subsection (6), except that the time period included in Section 41-21-63(4)(e) is not applicable in determining the appropriateness of additional periods of involuntary outpatient placement.
(6) Notice of the hearing shall be provided as set forth in Section 41-21-73(1). The patient and the patient's attorney may agree to a period of continued outpatient placement without a court hearing.
(7) The same procedure shall be repeated before the expiration of each additional period the patient is placed in treatment.
(8) If the patient has previously been found incompetent to consent to treatment, the court shall consider testimony and evidence regarding the patient's competence.
SECTION 7. The following shall be codified as Section 41-21-101.1, Mississippi Code of 1972:
41-21-101.1. (1) Authority to receive voluntary admissions.
(a) A treatment facility may receive for observation, diagnosis, or treatment any person eighteen (18) years of age or older making application by express and informed consent for admission or any person age seventeen (17) or under for whom such application is made by his or her guardian. If found to show evidence of mental illness, to be competent to provide express and informed consent, and to be suitable for treatment, such person eighteen (18) years of age or older may be admitted to the treatment facility. A person age seventeen (17) or under may be admitted only after a hearing to verify the voluntariness of the consent.
(b) A mental health overlay program or the Crisis Intervention Team or a licensed professional authorized to initiate an examination of the patient may conduct an initial assessment of the ability of the following persons to give express and informed consent to treatment before such persons may be admitted voluntarily:
(i) A person sixty (60) years of age or older for whom transfer is being sought from a nursing home, assisted living facility, adult day care center, or adult family-care home, when such person has been diagnosed as suffering from dementia.
(ii) A person for whom all decisions concerning medical treatment are currently being lawfully made by a health care surrogate or proxy.
(c) A treatment facility may not admit as a voluntary patient a person who has been adjudicated incapacitated, unless the condition of incapacity has been judicially removed. If a treatment facility admits as a voluntary patient a person who is later determined to have been adjudicated incapacitated, and the condition of incapacity had not been removed by the time of the admission, the treatment facility must either discharge the patient or transfer the patient to involuntary status.
(d) The health care surrogate or proxy of a voluntary patient may not consent to the provision of mental health treatment for the patient. A voluntary patient who is unwilling or unable to provide express and informed consent to mental health treatment must either be discharged or transferred to involuntary status.
(e) Within twenty-four (24) hours after admission of a voluntary patient, the admitting physician shall document in the patient's clinical record that the patient is able to give express and informed consent for admission. If the patient is not able to give express and informed consent for admission, the treatment facility shall either discharge the patient or transfer the patient to involuntary status.
(2) Discharge of a voluntary patient.
(a) A treatment facility shall discharge a voluntary patient:
(i) Who has sufficiently improved so that retention in the treatment facility is no longer desirable. A patient may also be discharged to the care of a community treatment facility.
(ii) Who revokes consent to admission or requests discharge. A voluntary patient or a relative, friend, or attorney of the patient may request discharge either orally or in writing at any time following admission to the treatment facility. The patient must be discharged within twenty-four (24) hours of the request, unless the request is rescinded or the patient is transferred to involuntary status under this section. The twenty-four-hour time period may be extended by a treatment facility when necessary for adequate discharge planning, but shall not exceed three (3) days exclusive of weekends and holidays. If the patient, or another on the patient's behalf, makes an oral request for discharge to a staff member, such request shall be immediately entered in the patient's clinical record. If the request for discharge is made by a person other than the patient, the discharge may be conditioned upon the express and informed consent of the patient.
(b) A voluntary patient who has been admitted to a treatment facility and who refuses to consent to treatment shall be discharged within twenty-four (24) hours after such refusal or revocation, unless transferred to involuntary status under this section or unless the refusal or revocation is freely and voluntarily rescinded by the patient.
(3) Notice of the right to discharge. At the time of admission and at least every six (6) months thereafter, a voluntary patient shall be notified in writing of his or her right to apply for a discharge.
(4) Transfer to voluntary status. An involuntary patient who applies to be transferred to voluntary status shall be transferred to voluntary status immediately, unless the patient has been charged with a crime, or has been involuntarily placed for treatment by a court and continues to meet the criteria for involuntary placement. When transfer to voluntary status occurs, notice shall be given as provided in Section 41-21-73(1).
(5) Transfer to involuntary status. When a voluntary patient, or an authorized person on the patient's behalf, makes a request for discharge, the request for discharge, unless freely and voluntarily rescinded, must be communicated to a physician, clinical psychologist, or psychiatrist as quickly as possible, but not later than twelve (12) hours after the request is made. If the patient meets the criteria for involuntary placement, the administrator of the treatment facility must file with the court a petition for involuntary placement, within two (2) court working days after the request for discharge is made. If the petition is not filed within two (2) court working days, the patient shall be discharged. Pending the filing of the petition, the patient may be held and emergency treatment rendered in the least restrictive manner, upon the written order of a physician, if it is determined that such treatment is necessary for the safety of the patient or others.
SECTION 8. The following shall be codified as Section 41-21-101.2, Mississippi Code of 1972:
41-21-101.2. (1) Authority to receive involuntary admissions. A person may be taken to a receiving treatment facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:
(a) (i) The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
(ii) The person is unable to determine for himself or herself whether examination is necessary; and
(b) (i) Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or
(ii) There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.
(2) Involuntary examination.
(a) An involuntary examination may be initiated by any one (1) of the following means:
(i) A court may enter an ex parte order stating that a person appears to meet the criteria for involuntary examination, giving the findings on which that conclusion is based. The ex parte order for involuntary examination must be based on sworn testimony, written or oral. If other less restrictive means are not available, such as voluntary appearance for outpatient evaluation, a law enforcement officer, or other designated agent of the court, shall take the person into custody and deliver him or her to the nearest receiving facility for involuntary examination. The order of the court shall be made a part of the patient's clinical record. No fee shall be charged for the filing of an order under this subsection. The order shall be valid only until executed or, if not executed, for the period specified in the order itself. If no time limit is specified in the order, the order shall be valid for seven (7) days after the date that the order was signed.
(ii) A law enforcement officer shall take a person who appears to meet the criteria for involuntary examination into custody and deliver the person or have him or her delivered to the nearest receiving treatment facility for examination. The officer shall execute a written report detailing the circumstances under which the person was taken into custody, and the report shall be made a part of the patient's clinical record.
(iii) A certificate of examination by two (2) physicians or by one (1) physician and one (1) psychologist, one (1) nurse practitioner or one (1) physician assistant, stating that the patient has been examined by the qualified examiners within the preceding seventy-two (72) hours and finds that the person appears to meet the criteria for involuntary examination and stating the observations upon which that conclusion is based. If other less restrictive means are not available, such as voluntary appearance for outpatient evaluation, a law enforcement officer shall take the person named in the certificate into custody and deliver him or her to the nearest receiving treatment facility for involuntary examination. The law enforcement officer shall execute a written report detailing the circumstances under which the person was taken into custody. The report and certificate shall be made a part of the patient's clinical record.
(b) A person shall not be removed from any program or residential placement in a long-term care facility and transported to a receiving treatment facility for involuntary examination unless an ex parte order, a professional certificate, or a law enforcement officer's report is first prepared. If the condition of the person is such that preparation of a law enforcement officer's report is not practicable before removal, the report shall be completed as soon as possible after removal, but in any case before the person is transported to a receiving treatment facility. The provisions of this paragraph do not apply when transportation is provided by the patient's family or guardian.
(c) A law enforcement officer acting in accordance with an ex parte order issued under this subsection may serve and execute such order on any day of the week, at any time of the day or night.
(d) A law enforcement officer acting in accordance with an ex parte order issued under this subsection may use such reasonable physical force as is necessary to gain entry to the premises, and any dwellings, buildings, or other structures located on the premises, and to take custody of the person who is the subject of the ex parte order.
(e) A patient shall be examined by two (2) examining physicians, or one (1) examining physician and one (1) psychologist, nurse practitioner or physician assistant, at a receiving treatment facility without unnecessary delay and may, upon the order of a physician, be given emergency treatment if it is determined that such treatment is necessary for the safety of the patient or others. The patient may not be released by the receiving facility or its contractor without the documented approval of a physician, psychologist or therapist if the receiving facility is a hospital, the release may also be approved by an attending emergency department physician with experience in the diagnosis and treatment of mental and nervous disorders and after completion of an involuntary examination under this subsection. However, a patient may not be held in a receiving treatment facility for involuntary examination longer than seventy-two (72) hours.
(f) One (1) of the following must occur within twelve (12) hours after the patient's attending physician documents that the patient's medical condition has stabilized or that an emergency medical condition does nor exist:
(i) The patient must be examined by a designated receiving facility and released; or
(ii) The patient must be transferred to a designated receiving treatment facility in which appropriate medical treatment is available. However, the receiving treatment facility must be notified of the transfer within two (2) hours after the patient's condition has been stabilized or after determination that an emergency medical condition does not exist.
(g) Within the seventy-two-hour examination period or, if the seventy-two (72) hours ends on a weekend or holiday, no later than the next working day thereafter, one (1) of the following actions must be taken, based on the individual needs of the patient:
(i) The patient shall be released, unless he or she is charged with a crime, in which case the patient shall be returned to the custody of a law enforcement officer;
(ii) The patient shall be released, subject to the provisions of subparagraph (i), for voluntary outpatient treatment;
(iii) The patient, unless he or she is charged with a crime, shall be asked to give express and informed consent to placement as a voluntary patient, and, if such consent is given, the patient shall be admitted as a voluntary patient; or
(iv) A petition for involuntary placement shall be filed in the chancery court when outpatient or inpatient treatment is deemed necessary. When inpatient treatment is deemed necessary, the least restrictive treatment consistent with the optimum improvement of the patient's condition shall be made available. When a petition is to be filed for involuntary outpatient placement, it shall be filed by one (1) of the petitioners specified in Section 41-21-65(2)(b). A petition for involuntary inpatient placement shall be filed by the facility administrator.
(3) Notice of Release. Notice of the release shall be given to the patient's guardian or representative, to any person who executed a certificate admitting the patient who executed a certificate admitting the patient to the receiving treatment facility, and to any court which ordered the patient's evaluation.
SECTION 9. Section 41-21-103, Mississippi Code of 1972, is amended as follows:
41-21-103. * * *
(1) A person with an intellectual disability who is under the age of eighteen (18) years and who is not married may be admitted to a treatment facility upon application of his or her parent or legal guardian if the following has occurred:
(a) An investigation by the director that carefully probes the person's social, psychological and developmental background; and
(b) A determination by the director that the person will benefit from care and treatment of his or her disorder at the facility and that services and facilities are available. The reasons for the determination shall be recorded in writing.
(2) A person with an intellectual disability or with mental illness who is married or eighteen (18) years of age or older and who has a legal guardian or conservator may be admitted to a treatment facility upon application of his or her legal guardian or conservator if authorization to make the application has been received from the court having jurisdiction of the guardianship or conservatorship and the following has occurred:
(a) An investigation by the director that carefully probes the person's social, psychological and developmental background; and
(b) A determination by the director that the person will benefit from care and treatment of his or her disorder at the facility and that services and facilities are available. The reasons for the determination shall be recorded in writing.
(3) A person with mental illness who is under the age of fourteen (14) years may be admitted to a treatment facility upon the application of his or her parent or legal guardian if the following has occurred:
(a) An investigation by the director that carefully probes the person's social, psychological and developmental background; and
(b) A determination by the director that the person will benefit from care and treatment of his or her disorder at the facility and that services and facilities are available. The reasons for the determination shall be recorded in writing.
(4) A person with mental illness who is fourteen (14) years of age or older but less than eighteen (18) years of age may be admitted to a treatment facility in the same manner as an adult may be involuntarily committed.
(5) Any voluntary admittee may leave a treatment facility after five (5) days, excluding Saturdays, Sundays and holidays, after he or she gives any member of the treatment facility staff written notice of his or her desire to leave, unless before leaving, the patient withdraws the notice by written withdrawal or unless within those five (5) days a petition and the certificates of two (2) examining physicians, or one (1) examining physician and one (1) psychologist, nurse practitioner or physician assistant, stating that the patient is in need of treatment, are filed with the chancery clerk in the county of the patient's residence or the county in which the treatment facility is located; however, if the admittee is at Mississippi State Hospital at Whitfield, the petition and certificate shall be filed with the chancery clerk in the county of patient's residence or with the Chancery Clerk for the First Judicial District of Hinds County, and the chancellor or clerk shall order a hearing under Sections 41-21-61 through 41-21-107. The patient may continue to be hospitalized pending a final order of the court in the court proceedings.
(6) The written application form for voluntary admission shall contain in large, bold-face type a statement in simple, nontechnical terms that the admittee may not leave for five (5) days, excluding Saturdays, Sundays and holidays, after giving written notice of his or her desire to leave. This right to leave must also be communicated orally to the admittee at the time of his or her admission, and a copy of the application form given to the admittee and to any parent, guardian, relative, attorney or friend who accompanied the patient to the treatment facility.
SECTION 10. This act shall take effect and be in force from and after July 1, 2012.
