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CIVIL COMMITMENT

Government Authority Involuntary institutional confinement of any person,

adult or child, entails a “massive curtailment of liberty.” The due process clause permits this kind of interference

with the liberty of a human being only if it can be justified by some permissible governmental interest

If an individual, adult or child, healthy or ill, is confined by the government for some reason other than his commission of a criminal offense, the state must provide some benefit to the individual in return for the deprivation of his liberty.

LIBERTY INTERESTS The procedural rules in the

Mental Health Code are not mere technicalities. They are bright lines created to prevent abuse. The Code’s requirements are intended to safeguard the important liberty interests of the respondent.

GETTING TO THE HOSPITAL Emergency

admission by certificate

Court ordered evaluation

Self admit

Voluntary Admission Voluntary admission preferred Mental Health Code allows refusal of

voluntary admission in certain instances

REQUIREMENTS AT ADMISSION Rights Copy of petition, if applicable Rights of voluntary admittee, if applicable Preference for rights restriction That quid pro quo is care or treatment of the kind required to

achieve the purpose of confinement. Thus where hospitalization for illness is imposed, treatment for that illness is required. Gary W. v. State of La (citations omitted)

CERTIFICATES

First certificate by a qualified examiner within 24 hours

Must be examined by a psychiatrist within 24 non weekend/holiday hours who must either certify the person or discharge her.

GETTING TO COURT Petition stating basis for admission 2 Certificates File petition 24 non weekend/holiday

hours after admission

MENTAL ILLNESS

A MENTAL OR EMOTIONAL DISORDER THAT SUBSTANTIALLY IMPAIRS A PERSONS THOUGHT, PERCEPTION OF REALITY, EMOTIONAL PROCESS, JUDGMENT, BEHAVIOR OR ABILITY TO COPE WITH THE ORDINARY DEMANDS OF LIFE BUT DOES NOT INCLUDE A DEVELOPMENTAL DISABILITY, DEMENTIA OR ALZHEIMER’S DISEASE ABSENT PYSCHOSIS, A SUBSTANCE ABUSE DISORDER OR AN ABNORMAILITY MANIFESTED ONLY BY REPEATED CRIMINAL OR ANTISOCIAL CONDUCT

ALLEGATIONSMUST RELATE TO MENTAL ILLNESS

Harm to self or others

Dangerous conduct Threats of specific

physical harm

Inability to provide for basic needs

Health care Shelter Food Money

Harm Sufficient Intent plus plan Recent history of

violence coupled with threat

Insufficient Verbal abuse Delusions without

threat Violence if

reasonably provoked

BASIC NEEDS

MUST BE ABLE TO CARE FOR BASIC NEEDS WITHOUT THE HELP OF FAMILY OR FRIENDS

Refuses Treatment or not adhering adequately to prescribed treatment

Because of the nature of his or her illness is unable to understand his or her need for treatment and 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 for involuntary admission (harm or basic needs)

Respondent’s Rights at the Hearing

Effective representation Jury Attend Testify Cross examine witnesses Independent examination Close hearing to public

BURDEN OF PROOF

Clear and Convincing evidence

“That standard of proof that leaves no reasonable doubt in the mind of the trier of fact.”

TESTIMONY Must be an expert Must have

personally examined respondent

Must be based on current condition of respondent, though history is considered

DISPOSITION Judge has many options for disposition. Any disposition must be related to mental

health needs of respondent Must be least restrictive alternative

Avoiding a Hearing Discharge before hearing Voluntary admission before hearing Agreed Order

Nursing homes, mental health facilities and guardians

A guardian cannot lawfully admit her ward to a mental health facility, regardless of whether the ward objects

Some, but not all nursing homes are mental health facilities

Courts are limited to placements that provide mental health treatment

RIGHTS AFTER COMMITMENT ORDER

Right to appeal for either party

Right to request modification of order

Petition for discharge

Persons with Developmental Disabilities Procedure for commitment of persons

with developmental disabilities is similar to procedure used for commitment of persons with mental illness.

One difference is that Administrative Admission is available for persons with DD but not for MI.

Goal of commitment for persons with intellectual disabilities is habilitation.

Habilitation is “an effort directed toward the alleviation of a developmental disability or toward increasing a person with developmental disability’s level of physical, mental, social or economic functioning. Habilitation may include, but is not limited to, diagnosis, evaluation, medical services, residential care, day care, special living arrangements, training, education, sheltered employment, protective services, counseling and other services provided to persons with developmental disability by developmental disabilities facilities.”405 ILCS 5/1-111

Criteria for commitment of persons with intellectual disabilities

1) the court must find the person has an intellectual disability; and

2) the court must find that the person is reasonably expected to inflict serious physical harm upon himself or another in the near future.

Note: unlike in MI, there is no provision for deterioration or inability to care for basic physical needs as criteria for commitment of persons with intellectual disabilities

Treatment in the hospital Treatment plan Milieu Groups Individual therapy Medication ECT

Mental Health Emergencies Admonishment of rights/inquiry as to

form of emergency intervention Intervention necessary to prevent

serious and IMMINENT physical harm to the recipient or others

No other less restrictive alternative is available

IMMINENT MEANS:Likely to occur at any moment; impending

TRANSITION

AUTHORIZED INVOLUNTARY TREATMENT

Before Trial Written materials must be given to

the patient for EVERY medication requested or for ECT, if applicable

Written materials must be given about alternative forms of treatment.

Failure to do so will result in a denial of the petition

State’s Burden CLEAR AND CONVINCING EVIDENCE Highest civil standard

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1

Serious mental illness Deterioration, suffering, threatening Illness had existed over a period of time Benefits outweigh harm Recipient lacks capacity Less restrictive services not appropriate Testing related to administration of

medication Inquiry as to existence of advance directive

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1-PetitionPetition must plead that the Petitioner made a good faith attempt to determine whether the recipient has

executed a Health Care Power of Attorney or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act. ( 5/2-107.1(a-5)(1))

If these copies exist they must be attached to the petition (5/2-107.1(a-5)(1))

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1 -PetitionThe following should be alleged in the petition (which must be proven at the hearing): Names, dosages and frequency of the treatment requested Familiarity with the Recipient Serious mental illness Deterioration, suffering, or threatening behavior

with specific facts for each Illness had existed over a period of time Benefits of the medication Benefits outweigh harm Recipient lacks capacity

Recipient has been given written and oral information about the treatment Less restrictive services not appropriate Whether the recipient has a guardian Testing request and how it is related to the safe administration of medication People to administer the medication

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1-Prior to hearing The following information must be given to the patient both in writing and orally:

(5/2-102(b)) side effects, risks and benefits of treatment alternatives to treatment to such extent that such advice is consistent with the recipient's capacity to

understand the information communicated

Prior to hearing, the guardian must be informed of the recipient's rights to refuse the medication: (5/2-107.1 (a))

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1 –Notice of hearing Petition and notice of the time and place of hearing to the respondent, his or her attorney, any known agent or attorney in fact, if any, and the guardian no later then three days prior to the hearing (5/2-107.1(a-5)(1))

if the respondent is unfit to stand trial or NGRI, then the copy of the petition and notice of hearing must also be given to the respondent's criminal defense attorney (In Robert S., 213 Ill. 2d 30 (2004)

service must be made by facsimile but acknowledgement of service must be given within 24 hours if not then service must be personal (5/2-107.1(a-5)(1))

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1 –Hearing with CommitmentIf hearing for involuntary treatment is to be held immediately following the petition for involuntary admission (5/2-107.1(a-5)(1)) the petition for involuntary treatment must be filed with the petition for involuntary admission (5/2-107.1(a-5)(1))

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1 –Hearing Date

Court Hearing shall be heard within 7 days after filing of the petition

(5/2-107.1(a-5)(2)) another 7 day continuance shall be given to either party as

a matter of right (5/2-107.1(a-5)(2)) another 7 day continuance shall be given upon showing

that the continuance is needed to adequately prepare for the hearing or under exceptional circumstances (5/2-107.1(a-5)(2))

another continuance not to exceed 21 days when at the court's discretion it is needed to

complete the independent examination pursuant to section 5/3-802 or 5/3-804 of the Code (5/2-107.1(a-5)(2))

allow for substitution of counsel (5/2-107.1(a-5)(2))

Role of Guardian Maximize self reliance Guardian may oppose treatment

petition if she believes the treatment is inconsistent with ward’s wishes

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1

SufferingRegarding suffering, the State had to show that Respondent was experiencing physical pain or emotional distress, and had to provide some factual basis. ¶38, 44. The appellate court found that the psychiatrist did not provide any insight into why he believed her symptoms of a mental illness caused her to suffer. ¶45. He did not explain how these symptoms caused her to feel grief, anxiety, depression or any other type of emotion distress. ¶45. Although Respondent herself used the word “suffering” in her testimony, she testified that the suffering was because of her inpatient hospitalization, that she missed her daughter, and that she was concerned about her daughter’s ability to properly manage her home and care for her mother and her pets. ¶47. “This is not the type of “suffering” that can be alleviated by psychotropic medication.” ¶47.In re Debra B., 2016 IL App (5th) 130573 (May 31, 2016).

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1

DeteriorationRegarding deterioration, the psychiatrist offered the “somewhat conclusory opinion” that Respondent’s ability to function had deteriorated. ¶48. The appellate court held that the State had to show a deterioration in the Respondent’s ability to function on a basic level. ¶50. The psychiatrist admitted that Respondent was eating properly and was not threatening staff or patients. ¶52. Although he testified that she aggravated other patients, he did not testify that she was disruptive. ¶52. The appellate court found that from the evidence, it appeared that Respondent functioned reasonably well, “at least in the environment of the facility.” ¶52. The appellate court therefore concluded that the State did not show the type of deterioration in Respondent’s ability to function that would support an order for involuntary treatment. In re Debra B., 2016 IL App (5th) 130573 (May 31, 2016).

INVOLUNTARY TREATMENT UNDER 405 ILCS 5/2-107.1

Some behaviors need to be currentFinally, although the State noted that the psychiatrist testified that Respondent had threatened an officer and expressed suicidal ideations at a jail prior to her admission, the appellate court was not persuaded. ¶53. “The statute explicitly provides that the court must find that the respondent’s illness has been “marked by the continuing presence of the symptoms” justifying involuntary medication “or the repeated episodic occurrence of these symptoms.” ¶53. 405 ILCS 5/2-107.1(a-5)(4)(C) (West 2012). The appellate court limited its consideration to the behavior and symptoms that the psychiatrist observed on an ongoing basis while the Respondent was hospitalized. ¶53.In re Debra B., 2016 IL App (5th) 130573 (May 31, 2016).

CAPACITY Capacity to

consent is same as capacity to refuse

Capacity is task specific

The person's knowledge that he has a choice to make;(2) The person's ability to understand the available options, their advantages and disadvantages;(3) Whether the commitment is voluntary or involuntary;(4) Whether the person has previously received the type of medication or treatment at issue;(5) If the person has received similar treatment in the past, whether he can describe what happened as a result and how the effects were beneficial or harmful; and(6) The absence of any interfering pathologic perceptions or beliefs or interfering emotional states which might prevent an understanding of legitimate risks and benefits. None of these enumerated factors should be considered dispositive, and a court should consider any other relevant factors which it deems might be present

CAPACITY FACTORS

CAPACITYMental Health Preference Declaration -- the “ability to

receive and evaluate information effectively or communicate decisions is impaired to such an extent that [the patient] lacks capacity to consent to or refuse mental health treatment.”

Health Care Surrogate Act --“the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment and the ability to reach an informed decision in the matter as determined by the attending physician.”

If the Court Grants the Petition…

All medications requested will be authorized

The court does not grant some medicationsrequested and deny others

Orders valid for 90 days (can petition foranother order)

Any changes to the treatment must be authorized by the court

A FINAL WORD

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