Legal Issues

Gordon Frankle

· Don’t worry alone. Speak to supervisors/attendings or contact administrative/legal backup.

A. Legal status of a hospitalized patient

Section 10(a), 11: “Conditional Voluntary”

· For patients who wish to be admitted to the hospital.

· Signed by patient 16 or older, parent/guardian of patient under 18, or guardian of an adult patient provided guardian has “authority to admit” granted by judge.

· In order for the patient to sign out of the hospital he must give notice to the staff. After notice is given the staff must allow the patient to leave within three days unless a petition for commitment is filed within those three days (3 days = start on the day after the notice is given excluding legal holidays; Sundays, Saturdays are counted!). For patients 16 or 17 years old, if a conditional voluntary was signed by a guardian or parent the patient may still submit his or her own 3 day notice.

Section 12 (a): “The Pink Paper”

· Allows a licensed physician, qualified psychologist or a police officer to ‘apply for’ a person’s admission to a mental health facility.

· Used for transport to a hospital and detention once there until patient can be evaluated by a physician who determines whether or not criteria are met for hospitalization.

· This evaluation theoretically should take place within 2 hours of the person’s arrival to the facility. If the person meets criteria the examining physician must file under Section 12(b).

Section 12(b): Also know as “The Pink Paper”

· on the reverse of the Section 12(a).

· Allows a ten day commitment to a hospital if the examining physician determines that the patient represents a “likelihood of serious harm” to himself or others. The criteria for hospitalization are also met if the person represents “a very substantial risk” of physical impairment or injury to himself due to impairment in judgement.

Section 7,8: “Civil Commitment”

· Utilized when a patient files a three day notice, or when the ten day limit of Section 12(b) is reached, if the patient needs further hospitalization.

· The same criteria listed under Section 12(b) for involuntary hospitalization must be met to gain a civil commitment.

· Filing this petition allows the person to be held in the facility until the hearing (no later than 14 days after filing); this fact is often utilized to extend the hospitalization to allow for continued treatment even if a person may be on the borderline of meeting criteria for hospitalization. · If granted the civil commitment cannot exceed six months; a recommitment order can be obtained after the initial commitment runs out for an additional year.

· During the commitment the patient may be granted passes from the hospital and may be discharged at any time without notifying the court.

Section 8(b): “Rogers guardianship”

· Filed by a physician, generally in conjunction with the Section 7,8 but may also be filed on patients hospitalized under Sections 15, 16 or 18.

· Petitions for determination that a patient is incapable of making an informed decision about medical treatment and thereby allowing for “substituted judgement” so that the patient may be treated with specified antipsychotic medications and/or ECT.

B. Forensic legal statuses (found mainly at ELMHC)

Section 15(b):

· Commitment for forensic evaluation of competence to stand trial and/or criminal responsibility.

· The patient is hospitalized for up to 20 days, with a provision that the examiner may ask for an additional 20 days, specific to the court are the questions of.

Section 15(e):

· Commitment for aid in sentencing.

· Court-ordered commitment after a guilty finding but before sentencing. It lasts for up to 40 days and the examiner may petition for a Section 7,8.

Section 16(b):

· Hospitalization of defendants found incompetent to stand trial or not guilty by reason of insanity (“NGRI”).

· The combined period of hospitalization under Sections 15 and 16 may not exceed 50 days. Section 16(c) is utilized for subsequent commitments after the expiration of the original 16(b).

· If incompetent defendants become competent they are returned to court.

· If a defendant becomes well enough to have change in privileges or to be discharged the court and DA must be notified.

Section 35: Alcohol commitment.

· Petition is made under this statute by a police officer, physician, spouse, relative or guardian for involuntary hospitalization of a person who is a chronic alcohol abuser.

· Commitment is for 30 days.

· All men and most women will go to Bridgewater.

C. The Lamb warning

· In theory, this should be given to all patients prior to interviewing them for the first time; some authorities advocate repeating it prior to each interview or at least weekly.

· States that, under certain circumstances, a patient’s record may become available to the court, and patients have the right not to say anything which could affect their case.

· Practically speaking, it must be given to all patients at the Lindemann, and any other patients for whom a court hearing may be needed (e.g., those for whom a Section 7,8 and 8b may be sought).

D. Filing guardianship and commitment

· At the different institutions the procedure for filing a section 7,8 varies; the physician is responsible for completing much of the paperwork. Attending physicians can provide templates which simplify the process.