CHAPTER 95

FORMERLY

SENATE SUBSTITUTE NO. 1

FOR SENATE BILL NO. 186

AS AMENDED BY SENATE AMENDMENTS NOS. 1 & 2

AN ACT TO AMEND TITLE 16, DELAWARE CODE, RELATING TO THE PROCEDURE FOR THE INVOLUNTARY COMMITMENT OF MENTALLY ILL PERSONS TO THE DELAWARE STATE HOSPITAL AND OTHER HOSPITALS AND DISCHARGE THEREFROM AND PROVIDING A SUPPLEMENTAL APPROPRIATION THEREFORE.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 16, Delaware Code, by adding thereto a new Chapter to be designated as Chapter 50 which new Chapter shall read as follows:

"CHAPTER 50. INVOLUNTARY COMMITMENT OF THE MENTALLY ILL; DISCHARGE; PROCEDURE

§5001. Definitions

Except where the context indicates otherwise, as used in this Section:

(1) 'Mentally Ill Person' means a person suffering from a mental disease or condition which requires such person to be observed and treated at a mental hospital for his own welfare and which either (a) renders such person unable to make responsible decisions with respect to his hospitalization, or (b) poses a real and present threat, based upon manifest indications, that such person is likely to commit or suffer serious harm to himself or others or to property if not given immediate hospital care and treatment.

(2) 'Hospital' and 'Mental Hospital' means the Delaware State Hospital or such other hospital in this State which is certified by the Secretary of the Department of Health and Social Services as being an appropriate facility for the diagnosis, care and treatment of mentally ill persons.

(3) 'Court' means the Superior Court or the Family Court of the State of Delaware, both of which courts shall have jurisdiction and responsibility for the implementation of this Act.

(4) 'Involuntary Patient' means a person admitted involuntarily to the custody of the Hospital for observation, diagnosis, care and treatment.

(5) 'Psychiatrist' means a physician licensed to practice medicine in this State specializing in the field of psychiatry; or a physician employed by the Delaware State Hospital, registered with the Medical Council of Delaware, and certified by the Delaware State Hospital Medical Director to the Medical Council of Delaware as being qualified in the diagnosis and treatment of mentally ill persons.

(6) 'Working Day' means all days other than Saturday, Sunday and legal holidays; and 'day' means a calendar day.

(7) 'Him', 'His' and all other terms used in the masculine gender shall also include and be equally applicable to, the corresponding terms used in the feminine gender.

§5002. Determination of Mental Illness and of Procedural Compliance as Prerequisites to Involuntary Hospitalization

(1) Subject to the provisions of Sections 5121-5123 of this Title, no person shall be involuntarily admitted to or confined as a patient at the Hospital, and the Hospital shall not admit or confine as an involuntary patient any person, unless such person is determined to be a mentally ill person in accordance with the procedures prescribed by this Section, and unless the procedural requirements of this Section are complied with.

§5003. Provisional Hospitalization by Psychiatrist's Certification

No person shall be involuntarily admitted to the Hospital as a patient except pursuant to the written certification of a psychiatrist that based upon the psychiatrist's examination of such person, such person suffers from a disease or condition which requires him to be observed and treated at a mental hospital for his own welfare and which either renders such person unable to make responsible decisions with respect to his hospitalization, or poses a present threat, based upon manifest indications, that such person is likely to commit or suffer serious harm to himself or others or to property, if not given immediate hospital care and treatment. The certificate shall state with particularity the behavior and symptoms upon which the psychiatrist's opinion is based, shall include (where available) the name and address of the spouse or other nearest relative or person of close relationship to the alleged mentally ill person, and shall state that such person is not willing to accept hospital care and treatment on a voluntary basis or that he is capable of voluntarily consenting to such care and treatment.

§5004. Legal Effect of Psychiatrist's Certificate

Where the psychiatric examination occurs at a place other than the Hospital, the certificate of the examining psychiatrist shall constitute legal authorization for the alleged mentally ill person to be transported (together with the examining psychiatrist's certificate) to the Hospital by whatever means the examining psychiatrist deems appropriate to preserve such person's dignity consistent with the public safety. Receipt by the Hospital of the certificate of the examining psychiatrist shall authorize the Hospital to provisionally admit the allegedly mentally ill person as a patient.

§5005. Duties of Hospital upon Provisional Admission

Upon the provisional admission of the alleged mentally ill person as an involuntary patient:

(a) The Hospital shall cause the involuntary patient to be physically and mentally examined; and may treat the involuntary patient if the examining psychiatrist certifies that treatment is necessary pending judicial proceedings under this Act;

(b) Where the certification of the involuntary patient as a mentally ill person was by a psychiatrist other than an employee or agent of the Hospital, the Hospital shall, within three (3) working days from the date of admission independently determine whether or not the involuntary patient is a mentally ill person. If the Hospital examining psychiatrist determines that the involuntary patient is not a mentally ill person, such psychiatrist shall so certify in writing and the Hospital shall discharge the involuntary patient forthwith. If the Hospital examining psychiatrist independently determines that the involuntary patient is a mentally ill person, such psychiatrist shall so certify in writing. The certificate shall contain the information required by §5003 and shall also set forth the date of the Hospital's determination. The Hospital shall thereupon advise the involuntary patient of his rights under this Section.

(c) The Hospital shall investigate whether or not the involuntary patient can afford counsel and to engage an independent psychiatrist or other qualified medical expert at his own expense.

§5006. Procedural Rights of Involuntary Patients

A person whom the Hospital has determined to be a mentally ill person shall be entitled:

(a) To notice (including a written statement) of the factual grounds upon which the proposed hospitalization is predicated and the reasons for the necessity of confinement;

(b) To hearings before the Court and to judicial determinations of (0 whether the involuntary patient's confinement is based upon probable cause and (ii) whether or not the involuntary patient is a mentally ill person. Such hearings shall be without jury and not open to the public, shall be preceded by adequate notice to the involuntarypatient, and the involuntary patient shall be entitled to be present at all such hearings;

(c) To be represented by counsel at all judicial proceedings, such counsel to be Court appointed if the involuntary patient cannot afford to retain counsel; and to be examined by an independent psychiatrist or other qualified medical expert and to have such psychiatrist or other expert testify as a witness in his behalf, such witness to be Court appointed if the involuntary patient cannot afford to retain such witness.

(d) To conduct discovery, to summon and cross-examine witnesses, to present evidence on his own behalf, and to avail himself of all other procedural rights afforded litigants in civil causes. The privilege against self-incrimination shall be applicable to all proceedings under this Section.

(e) To have a full record made of the proceedings, including findings adequate for review. All records and pleadings shall remain confidential unless the Court for good cause orders otherwise.

§5007. Judicial Proceedings (1) Initiation

(a) Forthwith, but not more than three (3) working days from the date it determines that the involuntary patient is a mentally ill person, the Hospital shall file a verified complaint in the Superior Court or in the Family Court if the involuntary patient would otherwise be amendable to Family Court jurisdiction under other provisions of law. The complaint shall aver that the Hospital, as petitioner, reasonably and in good faith believes that the involuntary patient (who shall be named as respondent) is a mentally ill person who should be continued as a patient at the Hospital pursuant to this Section until he is determined no longer to be a mentally ill person. The complaint shall also aver that the involuntary patient has been advised of his rights under this Section, and shall state whether the Hospital's investigation indicates that the involuntary patient is able to afford counsel and an independent psychiatric witness. Copies of all certificates by examining psychiatrists shall be attached to the complaint.

(b) Nothing in this subsection shall preclude the involuntary patient or another person acting on the involuntary patient's behalf from filing a complaint with the Court for a judicial determination of the involuntary patient's mental status, in which complaint the Hospital shall be named as respondent. In such event, the Hospital shall appear as respondent and shall attach to its answer copies of certificates by the examining psychiatrist, and the Hospital shall be excused from compliance with §5007 (1) (a).

§5008. Appointment of Counsel; Determination of Probable Cause

Upon the filing of the complaint the Court shall forthwith:

(a) Schedule a hearing to determine whether probable cause exists for the involuntary patient's confinement, and, where necessary, appoint counsel to represent the involuntary patient. Such probable cause hearing shall be held as soon as practicable, but no later than twelve (12) working days from the filing of the complaint.

(b) Direct that notice of the probable cause hearing and copies of the pleadings be supplied to the involuntary patient, his counsel, and to the involuntary patient's spouse, nearest relative or person of close relationship to the patient as in the Court's opinion would best represent the involuntary patient's interest.

(c) Enter such other orders as may be appropriate, including an order authorizing the continued provisional confinement of the involuntary patient until further order of the Court.

(d) If, pursuant to the probable cause hearing, the Court determines that probable cause does not exist, the involuntary patient shall be immediately discharged. If the Court determines that probable cause does exist, it shall schedule for the earliest practicable date a hearing to determine whether or not the involuntary patient is a mentally ill person; and where necessary, it shall appoint an independent psychiatrist or other qualified medical expert to examine the involuntary patient and act as an expert witness on the involuntary patient's behalf. Notice of the hearing shall be given to the involuntary patient and his counsel.

(e) For good cause shown, the Court may order that judicial proceedings under this Act take place in the Superior Court in and for a County other than the County in which the action was in initiated.

§5009. Discharge by the Hospital

Notwithstanding the pendency of the action or any order previously entered by the Court, if at any time after the complaint is filed the Hospital determines that the involuntary patient is no longer a mentally ill person, the Hospital shall so certify in writing and discharge the patient forthwith, and shall immediately advise the Court of its determination and the discharge, and the Court shall thereupon dismiss the action.

§5010. Hearing to Determine Mental Illness.

As a result of the hearing to determine mental illness, the Court shall make specific findings:

(a) That the involuntary patient is not a mentally ill person, in which case the Court shall order that the involuntary patient be discharged and released forthwith; or

(b) That based upon clear and convincing evidence, the involuntary patient is a mentally ill person in which case the Court shall enter an order of disposition, which disposition shall be effective for a period not to exceed six (6) months. In determining the disposition of the involuntary patient the Court shall consider all available alternatives, including inpatient confinement at the Hospital, and shall order such disposition as imposes the least restraint upon the involuntary patient's liberty and dignity consistent both with affording mental health treatment and care and with protecting the safety of the involuntary patient and the public.

§ 5011. Waiver of Rights; Voluntary Hospitalization

(a) An involuntary patient may waive any of the rights provided by this Section if (i) the Court determines that such waiver is voluntary and with the involuntary patient's knowing and intelligent consent, or if (ii) where the involuntary patient is incapable of knowingly and intelligently consenting, the Court, upon application by counsel and after appropriate inquiry and finding of facts, approves such waiver for good cause shown. If the hearing provided for in §5010 is waived, the Court shall enter an order of disposition in accordance with §5010(b).

(b) If prior to any hearing the Court determines that the involuntary patient has knowingly and voluntarily applied for, and has been accepted for hospitalization pursuant to, §5123 of this Chapter, the action shall be dismissed, and the provisions of §5123 shall govern.

§5012. Hospitalization

(1) Duties of Hospital Upon Involuntary Patient's Admission -

Upon the involuntary patient's admission to the Hospital pursuant to Court order, the Hospital shall for a period not to exceed six (6) months render treatment to the involuntary patient in accordance with professional standards. If by the expiration of six (6) months the involuntary patient has not been discharged by the Hospital, and if in the opinion of the Hospital the involuntary patient is still a mentally ill person, the Hospital shall so advise the Court, and the Court shall order a further hearing to be held at the earliest practicable date.

(2) Further Hearing - In any further hearing the procedural requirements of §5006 shall govern, and the Court may make such findings and orders as are permitted by §5010. Provided, however, that the Court may order that the involuntary patient's admission to the Hospital be continued for an indefinite period, in which case the Hospital shall report to the Court at intervals of not more than six (6) months as to the continued need for involuntary hospitalization, and the Court shall review the involuntary patient's status at such six (6) month intervals without being required to hold further hearings, until such time as the involuntary patient is discharged.

§5013. Appeal; Habeas Corpus; Effective Date; Savings Clause

(1) Appeal of Order of Disposition - Any party to the proceedings may appeal an order of disposition to the Supreme Court within thirty (30) days of the entry of such order. The appeal shall not operate as a stay of the order of disposition unless the Court or the Supreme Court so directs.

(2) Habeas Corpus - After any order of disposition becomes final, the involuntary patient shall be entitled to petition the Court for a writ of habeas corpus for his release on the grounds:

(a) That the proceeding which led to his commitment was illegal, provided that that issue has not been previously determined; or

(b) That although the original confinement was legal, continued confinement is not warranted.

(3) Court Rules - The Superior Court and the Family Court shall adopt such rules of procedure as may be required to implement the procedural requirements of this Act."

Section 2. This Act shall become effective on July 1, 1975. Upon the effective date of this Act, Sections 5124, 5125 and 5126 of Chapter 51, Title 16 of the Delaware Code, as such Sections existed immediately prior to July 29, 1974, and Chapter 570, Volume 59 Laws of Delaware, and Chapter 588, Volume 59 Laws of Delaware shall be repealed.

Section 3. Until July 1, 1975, Sections 5124, 5125, and 5126 of Chapter 51, Title 16 of the Delaware Code shall remain effective and in force; provided, however, that any rights which accrued under Chapter 570, Volume 59, Laws of Delaware after July 29, 1974 shall remain unaffected thereby; and provided further that in the event Sections 5124, 5125, and 5126 of Chapter 51, Title 16 of the Delaware Code, or any portion thereof as such Sections existed immediately prior to July 29, 1974 are declared invalid, then this Act shall become effective immediately upon the date that any of said Sections or portion thereof is declared invalid.

Section 4. Nothing in this Act shall affect, or be construed to alter or limit, the jurisdiction of the Family Court of the State of Delaware to commit a mentally ill, retarded or disturbed child or adult for observation and treatment, as conferred by 58 Delaware Laws, Chapter 114; provided, however that such commitments by the Family Court shall be governed by the procedures prescribed by this Act.

Section 5. If after the effective date of this Act any provision thereof or any rule, regulation or order thereunder to any person or circumstances shall be held invalid, the remainder of this Act, or any rule, regulation or order promulgated pursuant thereto or the application of such provision, rule, regulation or order to persons or circumstances other than to those which it is held invalid, shall not be affected thereby.

Approved June 5, 1975.