Transcript    Involuntary admission of individuals to psychiatric units in private or state hospitals (“IVA”) or to Developmental Disability Administration (“DDA”) Facilities Release or revocation of.

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Involuntary admission of individuals to
psychiatric units in private or state hospitals
(“IVA”) or to Developmental Disability
Administration (“DDA”) Facilities
Release or revocation of conditional release
hearings for defendants the courts have found to
be not criminally responsible and have
committed to state hospitals (“NCRs”)
Hearings to compel psychiatric patients to take
specified medication (“Forced Meds”)
Health-General Article § 10-632
COMAR 10.21.01
 State
psychiatric hospitals
 Freestanding private psychiatric
hospitals
 Psychiatric wards in general hospitals
 Veteran’s Administration hospitals
COMAR 10.21.01.01
 OAH
shall hold IVA hearings within
10 days of a patient’s initial
confinement
 ALJ
may postpone hearings, for
good cause, for no more than 7
days
 ALJ
shall state the reasons for the PP
on the record
Health-General Article §§ 10-632(b) and (c)(1)
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The patient has the right to attend or to waive
his attendance
The patient has the right to testify and almost
always does
The patient or the hospital sometimes calls the
patient’s family member(s) as witnesses (who
are required to receive notice of the hearing)
A public defender is automatically assigned to
represent a patient
The public defender’s investigator will meet with
the patient one or two days before the hearing
The patient may have a private attorney, at
his/her own expense, or reject the public
defender and proceed pro se
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Knowingly and intelligently made
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Witnessed by the individual's counsel
and
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Witnessed by the ALJ (ALJ must see the
patient and inquire whether he/she wants to
attend the hearing)
COMAR 10.21.01.09C(2)(b)
The hospital bears the burden of
proof by clear and convincing
evidence
COMAR 10.21.01.09F
ALJs shall require hospitals to present the testimony
of one of the following,
who has examined the patient
within 48 hours of hearing:
 A psychiatrist
 A physician in an accredited psychiatric residency
program, who is under the supervision of a psychiatrist
 A psychologist
COMAR 10.21.01.09E(1)
• Patient has a mental disorder
• Patient needs inpatient care or treatment
• Patient presents a danger to his/her/others’ life or safety
• Patient is unable or unwilling to be voluntarily admitted to the
facility
and
• No less restrictive form of intervention is available that is
consistent with the Patient’s welfare and safety
and if the Patient is 65 years old or older and is to be admitted to a
State facility
• he/she has been evaluated by a geriatric evaluation team finding
that no less restrictive form of care or treatment was appropriate
Health General Article § 10-632(e)(2); COMAR 10.21.01.09F
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IF ANY OF THE REQUIRED CRITERIA FOR
RETENTION HAVE NOT BEEN PROVEN BY CLEAR
AND CONVINCING EVIDENCE
OR
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IF A SUBSTANTIAL PROCEDURAL VIOLATION HAS
OCCURRED
Procedural release is made at the conclusion
of the hearing if:
 An error in the process has occurred;
 The error is substantial;
 No other remedy is available, which is consistent
with due process and the protection of the
patient’s rights
COMAR 10.21.01.09G(3)
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Decision is made orally from the bench and
written on multi-part decision form
Basis for decision is explained orally at
hearing
Decision is final and appealable under the
Administrative Procedure Act and both
parties have the right to file an appeal.
An individual who signs a petition for emergency
evaluation may base the petition on:
 Examination or observation
or
 Other information obtained that is
pertinent to the factors giving rise to the
petition.
A Peace Officer must base an EP on
personal observation
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Description of the patient’s behavior and/or
statements or any other information that led the
petitioner to believe that the patient has a mental
disorder and presents a danger to
his/hers/others’ life or safety
and
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Any other facts that support the need for an
emergency evaluation
Health-General Article § 10-622
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A peace officer who personally has observed the
individual or the individual's behavior; or
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An examining:
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Physician
Psychologist
Clinical social worker
Licensed clinical professional counselor
Clinical nurse specialist in psychiatric and mental health nursing
Psychiatric nurse practitioner
Health officer or designee of a health officer
Any other interested person, but a Court must
approve the EP
Health-General Article § 10-622
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District Court judges are available 24/7 to
review emergency petitions
To approve an EP, the court must find
probable cause to believe that the
emergency evaluee has shown the symptoms
of a mental disorder and that the individual
presents a danger to the life or safety of the
individual or of others
If the court does not find probable cause, it
shall indicate that fact on the petition and no
further action may be taken under the
petition
Health-General Article § 10-623
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A court may also order an emergency evaluation of an
arrested individual upon a showing of probable cause
that the individual has a mental disorder and that the
individual presents a danger to the his/her/others life
or safety
A court order under this section is a detainer against an
individual until:
◦ The charges against the individual are dismissed, nol
prossed, or stetted
or
◦ The individual appears in court
Health-General Article § 10-626
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A court-endorsed EP serves as a bench warrant
that allows a peace officer to transport an
evaluee to the nearest emergency facility
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A peace officer cannot act on an endorsed EP
that is more than 5 days old
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5-day limitation only applies to a courtendorsed EP signed by a lay petitioner
Health-General Article § 10-624
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If the EP is executed properly, the emergency
facility shall accept the patient
Within 6 hours of arriving at an emergency
facility, a physician shall examine the patient
to determine whether he/she meets the
requirements for involuntary admission
An emergency evaluee may not be kept at an
emergency facility for more than 30 hours
Health-General Article § 10-624
 The Patient agrees to a voluntary
admission (and is sufficiently competent
to do so)
or
Physician certificates have been signed
and proper notice of status/rights has
been provided to the patient
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Patient may sign voluntary admission agreement
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Patient must be able to understand the nature of the
request for voluntary admission
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If the hospital refuses to accept the patient as a voluntary
admission, ALJ may decide whether patient is willing and
able
If ALJ finds patient is willing and able and hospital still
refuses to accept voluntary, ALJ must release patient
because hospital has not proven the involuntary
admission requirement
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Hospitals generally accept the voluntary agreement upon
ALJ’s findings
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ALJ cannot force hospital to accept voluntary
Health-General Article § 10-609
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Two physicians or one physician and one
psychologist must certify the patient for
involuntary admission
Certificates must be based on personal
examination
The examination may not be done more than one
week before the certificate is signed or more than
30 days before the inpatient facility receives the
application for admission
Health-General Article § 10-616; COMAR 10.21.01.04
One certificate must be
accompanied by a note that
details why the patient
meets the requirements for
involuntary admission
COMAR 10.21.01.04C(4)
Within 12 hours after initial confinement, each
patient must be given and read (in a language
understood by the Patient) a notice, including the
following information:
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Notice of the confinement of the individual
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The right to consult with a lawyer that the individual
chooses
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The availability of the legal aid bureaus, lawyer referral
services, and lawyer referral agencies
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The right of the individual to call or write a lawyer or a
referral agency
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The relevant law
Health-General Article § 10-631; COMAR 10.21.01.05
IF THE PATIENT DOES NOT
UNDERSTAND THE NOTICE OF
RIGHTS/STATUS, THE FACILITY SHALL
GIVE THE NOTICE TO:
 the parent or guardian
 the next of kin of the individual
 the applicant for an involuntary admission of the
individual
and
 and any other individual who has a significant interest in
the status of the individual
Health-General Article § 10-631(b)(2)
Staff at an inpatient facility shall give oral and written
notice of the scheduled hearing to the patient and the
patient’s parent, guardian, or next of kin, containing the
following:
◦ The date, time, and place that the hearing will be held
◦ The legal authority for and purpose of the hearing
◦ A short statement explaining why the individual's involuntary
admission is being sought
◦ The standards that govern whether the patient shall be
involuntarily admitted
◦ The patient’s right to consult with an attorney and the availability
of representation at the hearing by a public defender
and
◦ A list of the individual's rights at a hearing
COMAR 10.21.01.06
 After
a patient is involuntarily
committed, he/she is entitled
to a subsequent hearing
within 150 to180 days, and
 After that hearing, he/she is
entitled to a semiannual
hearing
COMAR 10.21.01.08C
At least 7 days before a semiannual hearing:
 Two physicians or one physician and one
psychologist shall complete new certificates
 The Patient shall be given notice of rights/hearing
 If the patient is 65 years or older and is in a State or
VA hospital, GES approval must be obtained if it has
not been obtained during that hospitalization
COMAR 10.21.01.08C
Criminal Procedure Article § 3-101 to 3-123
No regulations
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Spring Grove Hospital Center, Catonsville
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Springfield Hospital Center, Sykesville
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Walter P. Carter Center, Baltimore City
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Timothy B. Finan Center, Cumberland
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Eastern Shore Hospital Center, Easton
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Upper Shore Community Mental Health Center,
Chestertown
Clifton T. Perkins Hospital Center, Jessup
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After a verdict of not criminally responsible,
the court immediately shall commit the
defendant to DHMH for institutional inpatient
care or treatment
If the court commits a defendant who was
found not criminally responsible, primarily
because of intellectual disability, DHMH shall
designate a facility for individuals with
intellectual disabilities for care and treatment
of the committed person
Criminal Procedure Article § 3-112
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Not earlier than 1 year after the initial
release hearing ends or was waived and not
more than once a year thereafter
OR
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At any time if the application is
accompanied by an affidavit of a physician
or licensed psychologist that attests to an
improvement in the mental condition of the
committed person since the last hearing
Criminal Procedure Article § 3-119
 A committed person is eligible for discharge from
commitment only if that person would not be a
danger, as a result of a mental disorder or
intellectual disability, to self or to the person or
property of others if discharged or if conditionally
released from confinement
 To be released, a committed person has the
burden to establish, by a preponderance of the
evidence, his/her eligibility for discharge or for
conditional release.
Criminal Procedure Article § 3-114
Within 50 days after commitment to DHMH
following an NCR finding:
 ALJ shall hold a hearing to determine whether to
recommend to the court that the patient is
eligible for conditional release or discharge
 ALJ may postpone the hearing for good cause
 The committed person may waive the release
hearing
Criminal Procedure Article § 3-115
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ALJ may admit and consider any relevant evidence, as
the formal rules of evidence do not apply
DHMH (through the hospital’s/State’s representative)
shall present the evaluation report on the committed
person and any other relevant evidence
The patient has a right to be present; to offer evidence
and to cross-examine adverse witnesses
The Patient has a right to be represented by counsel,
including, if the committed person is indigent, the
Public Defender or a designee of the Public Defender
Criminal Procedure Article § 3-115
Within 10 days after the hearing ends, the ALJ shall prepare
a report of recommendations to the court that contains:
 a summary of the evidence presented at the hearing
 recommendations as to whether the committed person
proved, by a preponderance of the evidence, eligibility
for conditional release or eligibility for discharge
and
 if the ALJ determines that the committed person proved
eligibility for conditional release, the recommended
conditions of the release (giving consideration to any
specific conditions recommended by the DHMH facility
that has charge of the committed person, the
committed person, or counsel for the committed
person)
Criminal Procedure Article § 3-116
Within 30 days after the court receives
the report and recommendation from OAH, the Court may
 on its own initiative hold a hearing
 if timely exceptions are filed or if the court requires more
information, hold a hearing (unless the committed person and
the State's Attorney waive the hearing)
 The court’s hearing is on the record that was made
before the ALJ
 The court may continue its hearing and remand to OAH
to take additional evidence
Criminal Procedure Article § 3-117
Note: While our decisions are usually timely, Courts frequently take much
more than 30 days to rule, so do not promise Patients a final decision by a
set date
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State's Attorney shall determine whether there is a
factual basis for allegations
If the State's Attorney determines that there is a
factual basis to believe that the committed person has
violated any of the terms of a conditional release and
believes further action by the court is necessary, the
State's Attorney promptly shall:
◦ notify DHMH
and
◦ file with the court a petition for revocation or
modification of conditional release
Criminal Procedure Article § 3-121