What is civil commitment? Involuntary treatment of individuals who are dangerous or unable to meet their basic needs due to a mental illness.

Transcription

1 Civil Commitment

2 What is civil commitment? Involuntary treatment of individuals who are dangerous or unable to meet their basic needs due to a mental illness.

3 How does a civil commitment begin? Notice of Mental Illness - 2 party hold - Any two persons may submit a petition for civil commitment. County mental health investigators can assist in this process. - Physicians hold - Hospital holds can be initiated when a physician admits a person to the hospital for psychiatric reasons. - Peace officers may bring an individual to the hospital for consideration of a physician hold. - Magistrates hold

4 How does a civil commitment begin? Notice of Mental Illness 2 Party Petition - Any two persons may submit a petition

5 How does a civil commitment begin? Physicians hold - detain a patient and cause admission or retention in the hospital. ORS : - Licensed independent practitioner not related to the patient by blood or marriage - Examining a patient in a hospital - Believes the patient is dangerous to self or any other person and is in need of emergency care or treatment for mental illness The treating physician shall release a person on a hospital hold whenever the person makes the determination that the person is no longer dangerous.

6 How does a civil commitment begin? Peace Officer Hold ORS Peace officer - Probable cause - Dangerous to self or others due to mental illness - Nearest hospital approved by Oregon Health Authority - Evaluation for physicians hold - If the patient is not held, the peace officer must return the patient to the place where they were taken into custody.

7 How does a civil commitment begin? Magistrates Hold - If criminal competency cannot be restored, the court may initiate civil commitment proceedings.

8 Timeline for Commitment Day 0: Physician hold/notice of Mental Illness filed Day 1: Investigation begins Day 3: Investigator decision - hearing, diversion or discharge? Day 4: Attorney appointed Day 5: Hearing Judicial days - not including weekends or court holidays.

9 Investigation - County civil commitment investigators - Ivan Sumner - Michelle Cannavino - Andrea Williams - Allowed access to mental health records from the current treatment period - Face-to-face examination of the patient - Will the patient engage in voluntary treatment? - Is there probable cause to believe the person is mentally ill under the law? - Is a 14 day diversion from commitment possible? - If there is probable cause, a hearing will be scheduled for no later than the 5th day of the hold. - If not, the hold will drop and the patient may discharge.

10 14 Day Diversion The investigator may certify an individual for a 14 day period of intensive treatment in lieu of a commitment hearing. Certification occurs on day 1 or 2 of the timeline. AMIP must consent to the diversion - Right to an attorney to review options before signing the consent. If the AMIP does not consent to a diversion, the investigator may proceed to a hearing.

11 Civil Commitment Hearing - If the investigator believes there is probable cause that a person is mentally ill, a commitment hearing will be scheduled for no later than 5th day of the hold. - Patient is now an Allegedly Mentally Ill Person (AMIP) - Statute allows for the hearing to take place anywhere convenient - AMIP is appointed an attorney, or may hire an attorney - State is represented by the District Attorney s office - An independent examiner will evaluate the AMIP and provide an opinion to the court regarding commitment.

12 Civil Commitment Hearing Judge will ask questions of witnesses to try to determine whether there is clear and convincing evidence that the AMIP is mentally ill. Clear and convincing - The clear and convincing evidence standard is a rigorous one, requiring evidence that is of extraordinary persuasiveness, and which makes the fact in issue highly probable. State v. M.R., 225 Or App 569 (2009). Mentally Ill - A person who, because of a mental disorder, is one or more of the following: - Dangerous to self or others - Unable to provide for basic personal needs that are necessary to avoid serious physical harm in the near future, and is not receiving such care as is necessary to avoid such harm.

13 Civil Commitment Hearing Evidence - Investigator s report - Testimony of witnesses called by either party - Testimony of AMIP - Relevant treatment records, including a list of all prescription medication given to the AMIP on the day of the hearing - Examiner s report

14 Dangerousness Dangerous to Self: To establish that a person is dangerous to self, the state must present evidence that the person s mental disorder would cause him or her to engage in behavior that is likely to result in physical harm to himself or herself in the near term. This requires evidence that the person's mental disorder has resulted in harm or created situations likely to result in harm in the near future. State v. Olsen, 208 Or App 686 (2006) The threatened harm must, at minimum, involve actual physical harm, and the harm must be serious. State v. North, 189 Or App 518 (2003) Although a person can be committed as dangerous to self before he or she is on the brink of death, the prospect of serious physical harm must be more than merely speculative. State v. Roberts, 183 Or App 520 (2002). The requisite danger to self cannot be based on mere unsubstantiated apprehension or speculation. Rather, it must partake of a particularized and highly probable threat to safe survival, including a risk of substantial harm, in the near future. State v. B.B., 240 Or App 75 (2010)

15 Dangerousness Danger to Others The general standard for determining dangerousness to others is whether there is a reasonable medical probability that the AMIP is presently a danger to others. Evidence of either actual violence or threats of violence may be sufficient if they are predictive of harm in the near future. State v. Allmendinger, 36 Or. App. 381 (1978) Past acts are relevant to the determination of present dangerousness but are insufficient in and of themselves. There must be evidence that explains how the mental disorder presently causes the AMIP to be a danger to others. State v. Miller, 198 Or. App. 153 (2005) The state generally must offer more than evidence of appellant s threats of future violence - such as a corresponding overt act demonstrating an intention to carry out threats or other circumstances indicaiting that actual future violence is highly likely. State v. L.D., 247 Or. App. 294 (2011)

16 Basic Needs Is the AMIP able to acquire basic needs, and if not, is the AMIP able to receive them in some other way? In order to commit a person on the ground that the person is unable to provide for basic needs, the state must prove, by clear and convincing evidence, that because of a mental disorder, the person is unable to secure basic self care and as a result, the person probably would not survive in the near future. State v. Bunting, 112 Or App 143 (1992) - Essential question is safe survival - either alone or with available support - Determined under conditions on the day of the hearing - Mere possibility of harm insufficient

17 Basic Needs Sufficient for Commitment: Failure to take medications where medication is necessary to sustain life in the near future. - Diabetes - Antibiotics Failure to adequately intake food and water to sustain appropriate nutrition. Failure to articulate a reasonable plan for shelter and nutrition upon discharge from the hospital. Not Sufficient For Commitment: - Homelessness (State v. Hays, 202 Or App 63 (2005)) - Failure to take psychiatric medication or otherwise treat psychiatric illness (State v. Brungard, 101 Or App 67 (1990) - Failure to take other medications where the failure does not create a lifethreatening situation in the near term (State v. MLF, 220 Or App 629 (2008)) - Failure to maintain a clean living space (State v. DeMartino, 164 Or App 331 (1999))

18 Basic Needs: Reasonable Plan When an individual can articulate a reasonable plan for obtaining the necessities of life and has a demonstrable ability to support himself or herself, a civil commitment is inappropriate because there is no clear and convincing evidence that the individual cannot provide for his or her basic needs. State v. Cunningham, 190 Or App 202 Civil commitment is not a paternalistic vehicle for saving people from themselves. State v. White, 155 Or App 288 (1998)

19 Chronic Mental Illness Individuals who have been committed before may be committed again more easily if they meet criteria for chronic mental illness. ORS (1)(e)(C): In order to commit someone as chronically mentally ill the court must find: - The patient is 18 or older - The patient has been diagnosed by a psychiatrist, licensed psychologist, or certified examiner with a chronic mood disorder or a chronic psychotic disorder other than those caused by substance abuse. - Within the previous 3 years, the person must twice have been placed in a hospital or inpatient facility under ORS The person must be exhibiting symptoms or behavior substantially similar to that which preceded and led to one or more of the placements. - Unless treated, the person will continue, to a reasonable degree of medical certainty, to deteriorate to the point of danger to self, others, or unable to care for basic needs.

20 Voluntary Treatment If a patient is willing and able to participate in adequate voluntary treatment, commitment is not appropriate. State v. MCM, 212 Or. App. 158 (2007) - The AMIP has the burden of proof to show that he or she is willing and able to treat voluntarily. Judge may also consider a conditional release to a friend or relative who will agree to supervise AMIP.

21 After Commitment If the judge decides that an AMIP meets criteria for commitment, a civil commitment judgment will be signed. - Allows for involuntary treatment for up to 180 days - Hospital may discharge at any point in the commitment period if they believe you are no longer mentally ill - May be referred to OSH or remain in the community hospital - Discharge planning

22 Trial Visit Agreements If you are ready to discharge from the hospital, but still in need of treatment, you may be released under a Trial Visit Agreement. - Follow treatment directives - Maintain mental health stability - Live at the listed address Trial visit revocation requires a hearing before a judge. Revocation could result in hospitalization for the remaining time on the day commitment.

23 Re- Commitments If a patient remains in the hospital for the entire length of commitment, the hospital may seek re-commitment. Patient will be given a chance to protest the re - commitment. Patient will only be appointed an attorney and given a chance to be heard if she files a protest to re-commitment. If the patient files a protest, a the judge will be required to make the same findings required in a regular commitment hearing.

24 Developmental and Intellectual Disabilities Different statutes - ORS Period of commitment lasts one year - Requires a more robust evaluation determining eligibility - Many individuals on DD commitments have co-occurring Axis 1 disorders. Lane County DD Services Commitment Investigator: Faith Morales

25 Collateral Consequences of Commitment - Firearms prohibition - Judgment of commitment visible to law enforcement in LEDS - Drivers license - AMIP may bear some or all of the financial cost of hospitalization - Professional licensing - Lose control over treatment decisions

26 Miscellaneous - Right to appeal the judgment - Civil Commitment does not allow for electroconvulsive therapy or psychosurgery without consent - Can t be held in jail awaiting a civil commitment unless there are also pending criminal charges, or it has been determined the AMIP is dangerous to staff and patients at the hospital - Rights of Committed Persons ORS Communicate freely in person and by reasonable access to telephones - Send and receive sealed mail, except that this right may be limited for security reasons - Keep personal possessions, including toilet articles - Religious freedom - A written treatment plan, kept current with the progress of the person - Daily access to fresh air and the outdoors - The right to be free from potentially unusual or hazardous treatment procedures, including convulsive therapy, unless the person has given express and informed consent. - Mechanical restraints shall not be applied unless it is determined by the chief medical officer to be required by the medical needs of the person.