Civil Mental Health Proceedings: Understanding the Process

Transcription

1 Civil Mental Health Proceedings: Understanding the Process The Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-100 et seq. ( the Mental Health Code ), governs civil mental health proceedings in Illinois. In the Circuit Court of Cook County, the following types of cases are heard: (1) petitions for the involuntary admission of an individual to a mental health facility on an inpatient basis; (2) petitions for involuntary admission on an outpatient basis by court order; (3) Agreed Care & Custody Orders or Agreed Orders for alternative treatment in the community which result from a negotiated settlement of an involuntary commitment proceeding; and (4) petitions for the involuntary administration of psychotropic medication and electroconvulsive therapy. Petitions for involuntary admission are typically filed by an employee of a mental health facility. Petitions for involuntary treatment are typically filed by a treating psychiatrist. However, any person age 18 or older may file a petition for involuntary admission under the Mental Health Code. For example, petitions for involuntary admission have been filed by family members and outpatient crisis management team members. An individual seeking to file a petition for involuntary admission may hire a private attorney or may seek the assistance of the Cook County State s Attorney s Office, Special Prosecutions Bureau, Seniors & Persons with Disabilities Unit. The phone number of this Unit is This Unit can assist in determining whether a petition is appropriate and help complete the necessary court paperwork. There is no charge for this service. The individual who is the subject of the petition is referred to as the respondent. The respondent is usually represented by the Legal Advocacy Services of the Illinois Guardianship & Advocacy Commission (the GAC ). The GAC is appointed in every case by the Court unless the respondent wishes to hire private counsel. Because of the significant liberty interests at stake in these kinds of cases, the GAC ensures that the respondent s rights are protected. The GAC does not charge for their services. Petition and Certificate Requirements for Involuntary Admission on an Inpatient or Outpatient Basis The petition may be filed in Cook County (starting January 1, 2018 only electronic filing will be accepted by the Circuit Court Clerk) if the respondent is present here or lives here. The petition must provide a detailed statement including signs and symptoms of mental illness and a description of any act, threats or behavior with time and place of occurrence that support involuntary admission. The petition must also list the name and addresses of individuals who might have information related to what is alleged such as a spouse, parent, and guardian as well as the names, addresses and phone numbers of any witnesses to the facts alleged. Any potential conflict between the person filing the petition and the respondent must be identified. In addition to the petition, two certificates are required from clinicians such as a doctor, psychiatrist, clinical psychologist or licensed clinical social worker who examined the respondent. One of these certificates must be from a psychiatrist. The Mental Health Code sets forth timelines for the filing of the certificates. If the case seeks involuntary admission on an inpatient basis, the petition and first

2 certificate must be filed within 24 hours of the respondent s admission, excluding holidays and weekends. If a certificate is filed with the petition, the examination must have occurred not more than 72 hours prior to the completion of the certificate. Court Hearings- The Logistics Under the Mental Health Code, hearings on petitions for involuntary inpatient admission are set within five days (excluding holidays and weekends) after receipt of the petition, 405 ILCS5/ Petitions which seek involuntary outpatient admission are set within 15 days ( excluding holidays and weekends) after receipt of the second certificate. 405 ILCS 5/ Petitions for involuntary treatment are set for hearing within seven days of the filing of the petition. 405 ILCS 5/ (a-5)(2). Generally speaking, the first hearing date will be on the Court s Case Management Call which is heard Monday through Thursday at 11am at the Daley Center in Courtroom At the Case Management Call, counsel advise the Court of the status of the case and ask for either a trial date or future status date. The parties do not generally appear at the Case Management Call. Hearings on petitions for involuntary admission and involuntary treatment are generally heard at the private mental health facility where the respondent is located or at Chicago Read Mental Health Center, Madden Mental Health Center or the University of Illinois at Chicago. In the Court s discretion, hearings may also be conducted at the Daley Center, Circuit Court of Cook County, 50 W. Washington, Chicago, IL. An official court reporter takes a verbatim record of the proceedings. The proceedings are open to the public unless the respondent or some other party requests a closed proceeding. A request that a hearing be closed shall be granted unless there is an objection by a party or any other person. If an objection is made, the court must hold a hearing and may close the proceedings to the public if it finds the objector has demonstrated a compelling interest. 405 ILCS 5/3-800(c). Any party to the proceeding, including the petitioner, may be represented by counsel. The respondent is generally represented by court-appointed counsel, the GAC. The Cook County State s Attorney represents the People of the State of Illinois. Any party to the proceeding, such as an agent under a power of attorney for healthcare, an inpatient mental health facility or community mental health provider may be represented by their own counsel. 405 ILCS 5/3-101(a) & (b). The respondent may request a jury trial on the issue of whether he or she is subject to involuntary admission on an inpatient or outpatient admission, 405 ILCS 5/3-802, and is entitled to secure an independent examination by an expert of his or her own choice. 405 ILCS 5/ Jury trials are not permitted in involuntary treatment cases. Legal Criteria-Involuntary Inpatient Admission Proceedings A person subject to involuntary admission on an inpatient basis means a person with mental illness:

3 1. Who because of his or her illness is reasonably expected, unless treated on an inpatient basis, to engage in conduct placing such person or another in physical harm or in reasonable expectation of being physically harmed; and/or 2. Who because of his or her illness is unable to provide for his or her basic physical needs so as to guard himself or herself from serious harm without the assistance of family or others, unless treated on an inpatient basis; and/or 3. Who if not treated on an inpatient basis, is reasonably expected, based on his or her behavioral history, to suffer mental or emotional deterioration and is reasonably expected, after such deterioration, to meet the criteria of either number 1 or 2 above. The Court may consider evidence of the person s repeated past pattern of specific behavior and actions related to the person s illness. 405 ILCS 5/ Legal Criteria-Involuntary Outpatient Admission Proceedings A person subject to involuntary admission on an outpatient basis means: 1. A person who would meet the criteria for admission on an inpatient basis in the absence of treatment on an outpatient basis and for whom treatment on an outpatient basis can only be reasonably ensured by court order mandating such treatment; and/or 2. A person with mental illness whose symptoms are reasonably expected to increase if left untreated to the point that the person would meet the criteria for involuntary inpatient commitment, and whose illness has, on more than one occasion in the past, caused that person to refuse needed and appropriate mental health services in the community. 405 ILCS 5/ Legal Criteria-Involuntary Treatment Proceedings The Mental Health Code does not allow the Court to combine the involuntary admission proceeding with the involuntary treatment proceeding even though the same respondent is involved. The Court must hold two separate hearings. The Court may, however, hear both cases back to back. The procedures which govern court hearings for involuntary admission proceedings also apply to involuntary treatment petitions. 405 ILCS 5/ (a-5)(3). Proof of the following is required for an involuntary treatment order for the administration of psychotropic medication or electroconvulsive therapy : 1. A serious mental illness; 2. Because of the serious mental illness the respondent currently exhibits either (1) deterioration of his or her ability to function, as compared to the respondent s ability to function prior to the current onset of symptoms of the mental illness for which treatment is presently sought, (2) suffering, or (3) threatening behavior;

4 3. That the illness has existed for a period marked by the continuing presence of such symptoms set forth in Paragraph 2 or the repeated episodic occurrence of these symptoms; 4. That the benefits of the treatment outweight the harm; 5. That the respondent lacks the capacity to make a reasoned decision about the treatment; 6. That other less restrictive services have been explored and found inappropriate; 7. That if the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment; 8. That the respondent has been advised in writing of the risks, benefits and side effects of the primary and alternative medications as well as advised in writing of the non-medical alternatives ; and 9. That a good faith attempt was made to determine whether the respondent has executed a power of attorney for health care or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act. In determining whether the respondent meets this criteria the Court may consider evidence of the person s history of serious violence, repeated past pattern of specific behavior, actions related to the person s illness, or past outcomes of various treatment options. 405 ILCS 5/ (a-5)(1)-(6). Testimony at Trial and Duration of Court Orders on Involuntary Petitions With respect to required testimony in an involuntary admission or treatment proceeding, the Mental Health Code provides that at least one psychiatrist, clinical social worker, clinical psychologist or qualified examiner who has examined the respondent must testify at the hearing. The respondent may waive the requirement of testimony subject to the approval of the court. 405 ILCS 5/ The respondent may also elect not to appear at his or her hearing. If this is the case, the GAC will put on the record that he or she advised their client that the proceeding would proceed in their absence and ask the court that the respondent s appearance be waived. The petitioner must prove their case by clear and convincing evidence before the respondent may be found subject to involuntary admission or involuntary treatment. 405 ILCS 5/ In an involuntary admission case, the Court must also receive a treatment report before disposition which includes a social investigation of the respondent, the availability of alternative treatment settings and a preliminary treatment plan. 405 ILCS 5/ After hearing all the evidence, the Court either grants or denies the petition and states its ruling in open court. The Court than prepares a written order setting forth its findings. If the Court finds the petitioner has met their burden of proof it may order the administration of psychotropic medication or electroconvulsive therapy for a period of up to 90 days or order involuntary inpatient admission to a mental health facility for a period of up to 90 days

5 A second 90 day period of involuntary treatment may be ordered if the standards of the Mental Health Code are met. Thereafter, additional 180 day periods of involuntary treatment may be authorized pursuant to the standards and procedures of the Mental Health Code. Id. Similarly, if a new petition and two certificates are filed the court may enter an additional 90 day period of involuntary inpatient commitment after a hearing. However, if upon the hearing of this second petition the court finds that the respondent would no longer meet the criteria for involuntary inpatient commitment but does met the criteria for outpatient commitment, the court may order the respondent committed on an outpatient basis for a period not to exceed 180 days. 405 ILCS 5/ An initial order of commitment on an outpatient basis is good for a period not to exceed 180 days. Upon the filing of a new petition with two certificates prior to the initial order expiring, the court may order a second period of commitment not to exceed another 180 days after a hearing. Additional 180 day periods of inpatient or outpatient commitment may be sought pursuant to the Mental Health Code. 405 ILCS 5/813(a-1)(b). If no new petition is filed the respondent shall be discharged. Court Order for Involuntary Admission on an Outpatient Basis and Remedy for Noncompliance If the court grants the petition for involuntary commitment on an outpatient basis it may either order the respondent to receive alternative treatment in the community as set forth in the treatment plan at a community mental health provider as prescribed in the order or place the respondent in the care and custody of a relative or another person. 405 ILCS 5/ If the court orders alternative treatment, it has continuing authority to modify the order if the respondent fails to comply or is found unsuitable for alternative treatment. Upon proper notice to the respondent and the court, if the court determines that the respondent has violated the order for alternative treatment in the community or alternative treatment in the community will no longer provide adequate assurances for the safety of respondent and others, the court may revoke the order for alternative treatment and may order a peace officer to take the respondent to an inpatient mental health facility for an evaluation. 405 ILCS 5/3-812(c). The respondent may not be detained for longer than 24 hours (excluding weekends and holidays) unless a petition for involuntary admission on an inpatient basis with a supporting certificate is filed. Id. If the court places the respondent in the care and custody of a relative or other person the court shall specify the powers and duties of the custodian. The order may grant the custodian the authority to admit the respondent to the hospital if the respondent fails to comply with the conditions of the order. 405 ILCS 5/3-812(b). If necessary, the custodian may ask the court for an order authorizing a peace officer to take the respondent into custody and transport to a mental health facility. Again, the respondent shall not be detained for longer than 24 hours unless within that 24hours a petition for involuntary admission on an inpatient basis and a supporting certificate have been filed. Agreed Order for Admission on an Outpatient Basis

6 A respondent may agree to an outpatient order before the court has ruled on an involuntary petition. 405 ILCS 5/ Agreed orders are preferable because the respondent takes a more active role in his treatment plan, they can include the administration of psychotropic medication and they do not constitute a finding that the respondent is subject to involuntary admission. 405 ILCS 5/ (a)(5)& (d). Agreed outpatient orders are good for up to 180 days and can be continued for additional 180 day periods by agreement of the parties without the necessity of filing a new petition and having a court hearing. 405 ILCS 5/ (g). Under an agreed order, the court and the parties are presented with a written treatment plan which contains a recommendation for court ordered treatment on an outpatient basis and details the conditions for such an order. The respondent agrees to be placed in the care and custody of another person and the custodian agrees to assist in the outpatient treatment of the respondent. The court advises both the respondent and the custodian of the conditions and the expectations of the proposed order and must be satisfied that both parties understand and agree to its terms. 405 ILCS 5/ (a)(2)&(3). The court further advises the respondent that if he or she does not comply with the conditions of the agreed order, that the order may authorize the custodian to hospitalize the respondent, and that the admission would be considered a voluntary admission. 405 ILCS 5/ (b). The court must be satisfied that the agreed outpatient order is in the best interest of the respondent and the public. 405 ILCS 5/ (a)(1).