TITLE 16

Health and Safety

Mental Health

CHAPTER 50. INVOLUNTARY COMMITMENT OF PERSONS WITH MENTAL CONDITIONS; DISCHARGE; PROCEDURE


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

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

(2) "Designated transport personnel'' means such personnel as designated by the Secretary of the Department of Health and Social Services to transport persons with mental conditions to and from the hospital and public treatment facilities.

(3) "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.

(4) "Hospital'' and "mental hospital'' means the Delaware Psychiatric Center, any 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 persons with mental conditions 18 years of age or older. "Hospital'' and "mental hospital'' shall also mean any hospital in this State which is certified by the Secretary of the Department of Services for Children, Youth and Their Families as being an appropriate facility for the diagnosis, care and treatment of persons with mental conditions under 18 years of age.

(5) "Involuntary patient'' means a person admitted involuntarily to the custody of the hospital for observation, diagnosis, care and treatment.

(6) "Peace officer'' means any public officer authorized by law to make arrests in a criminal case.

(7) "Person with a mental condition'' means a person suffering from a mental disease or condition which requires such person to be observed and treated at a mental hospital for the person's own welfare and which both (i) renders such person unable to make responsible decisions with respect to the person's hospitalization, and (ii) poses a real and present threat, based upon manifest indications, that such person is likely to commit or suffer serious harm to that person's own self or others or to property if not given immediate hospital care and treatment.

(8) "Psychiatrist'' means:

a. A physician licensed to practice medicine in this State specializing in the field of psychiatry, or a physician employed by the Delaware Psychiatric Center, registered with the Medical Council of Delaware and certified by the Delaware Psychiatric Center Medical Director to the Medical Council of Delaware as being qualified in the diagnosis and treatment of persons with mental conditions; or

b. Any physician employed by the United States government within the State in the capacity of psychiatrist and certified by the Delaware Psychiatric Center Medical Director to the Medical Council of Delaware as qualified in the diagnosis and treatment of persons with mental conditions.

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

60 Del. Laws, c. 95, § 1; 62 Del. Laws, c. 300, § 1; 66 Del. Laws, c. 424, § 2; 68 Del. Laws, c. 309, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, §§ 1-4; 78 Del. Laws, c. 179, §§ 168-172.;

Subject to §§ 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 person with a mental condition in accordance with the procedures prescribed by this chapter, and unless the procedural requirements of this chapter are complied with.

60 Del. Laws, c. 95, § 1; 78 Del. Laws, c. 179, §§ 173, 174.;

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 the person to be observed and treated at a mental hospital for the person's own welfare and which either renders such person unable to make responsible decisions with respect to the person's hospitalization, or poses a present threat, based upon manifest indications, that such person is likely to commit or suffer serious harm to that person's own self 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 person with a mental condition, and shall state that such person is not willing to accept hospital care and treatment on a voluntary basis or that the person is incapable of voluntarily consenting to such care and treatment.

60 Del. Laws, c. 95, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 175.;

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 person with a mental condition to be transported (together with the examining psychiatrist's certificate) to the hospital by a peace officer or, in the sole discretion of the examining physician, by designated transport personnel. Receipt by the hospital of the certificate of the examining psychiatrist shall authorize the hospital provisionally to admit the alleged person with a mental condition as a patient. No peace officer or medical doctor shall be subject to civil damages or criminal penalties for any harm to the person with a mental condition resulting from the performance of the officer's or doctor's own functions under this section or under § 5003 of this title unless such harm was the result of negligent, reckless, wilful, wanton and/or intentional misconduct on the officer's or doctor's own part.

60 Del. Laws, c. 95, § 1; 68 Del. Laws, c. 309, § 2; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 176.;

Upon the provisional admission of the alleged person with a mental condition as an involuntary patient:

(1) 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 chapter;

(2) Where the certification of the involuntary patient as a person with a mental condition was by a psychiatrist other than an employee or agent of the hospital, the hospital shall, within 2 working days from the date of admission, independently determine whether or not the involuntary patient is a person with a mental condition. If the hospital examining psychiatrist determines that the involuntary patient is not a person with a mental condition, 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 person with a mental condition, such psychiatrist shall so certify in writing. The certificate shall contain the information required by § 5003 of this title and shall also set forth the date of the hospital's determination. The hospital shall thereupon advise the involuntary patient of the patient's rights under this chapter;

(3) A psychiatrist designated by the Secretary of the Department of Services for Children, Youth and Their Families may, at any time prior to the commencement of judicial proceedings to determine the mental condition of a person under 18 years of age, conduct an independent review of a determination that such a person is a person with a mental condition. If the psychiatrist determines that such person is not a person with a mental condition, the Department may withhold financial assistance for the diagnosis, care or treatment of such person;

(4) A psychiatrist designated by the Secretary of the Department of Health and Social Services may, at any time prior to the commencement of judicial proceedings to determine the mental condition of a person 18 years of age or older, conduct an independent review of a determination that such person is a person with a mental condition. If the psychiatrist determines that such person is not a person with a mental condition, the Department may withhold financial assistance for the diagnosis, care or treatment of such person;

(5) 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 patient's own expense.

60 Del. Laws, c. 95, § 1; 66 Del. Laws, c. 424, §§ 3, 4; 68 Del. Laws, c. 310, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, §§ 177, 178.;

A person whom the hospital has determined to be a person with a mental condition shall be entitled:

(1) 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.

(2) To hearings before the court and to judicial determinations of (i) whether the involuntary patient's confinement is based upon probable cause and (ii) whether or not the involuntary patient is a person with a mental condition. Such hearings shall be without jury and not open to the public, shall be preceded by adequate notice to the involuntary patient, and the involuntary patient shall be entitled to be present at all such hearings.

(3) 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 the patient's behalf, such witness to be court appointed if the involuntary patient cannot afford to retain such witness.

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

(5) 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.

60 Del. Laws, c. 95, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 179.;

(a) Forthwith, but not more than 2 working days from the date of provisional admission, the hospital shall file a verified complaint in the Superior Court or in the Family Court if the involuntary patient would otherwise be amenable 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 person with a mental condition who should be continued as a patient at the hospital pursuant to this chapter until the patient is determined no longer to be a person with a mental condition. The complaint shall also aver that the involuntary patient has been advised of the patient's rights under this chapter. Copies of all certificates by examining psychiatrists shall be attached to the complaint.

(b) Nothing in this section 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 subsection (a) of this section.

(c) The hospital's investigation shall indicate whether the involuntary patient is able to afford counsel and an independent psychiatric witness within 4 working days of provisional admission.

60 Del. Laws, c. 95, § 1; 62 Del. Laws, c. 300, §§ 2-5; 68 Del. Laws, c. 310, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 180.;

Upon the filing of the complaint the court shall forthwith:

(1) 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 8 working days from the filing of the complaint.

(2) Direct that notice of the probable cause hearing and copies of the pleadings be supplied to the involuntary patient, the patient's 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.

(3) 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.

(4) 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 person with a mental condition; 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 the patient's counsel.

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

60 Del. Laws, c. 95, § 1; 62 Del. Laws, c. 300, § 6; 68 Del. Laws, c. 310, § 4; 78 Del. Laws, c. 179, § 181.;

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 person with a mental condition, 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.

60 Del. Laws, c. 95, § 1; 78 Del. Laws, c. 179, § 182.;

As a result of the hearing to determine mental condition, the court shall make specific findings:

(1) That the involuntary patient is not a person with a mental condition, in which case the court shall order that the involuntary patient be discharged and released forthwith; or

(2) That based upon clear and convincing evidence, the involuntary patient is a person with a mental condition in which case the court shall enter an order of disposition, which disposition shall be effective for a period not to exceed 3 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 with protecting the safety of the involuntary patient and the public.

60 Del. Laws, c. 95, § 1; 68 Del. Laws, c. 310, § 5; 78 Del. Laws, c. 179, §§ 183-185.;

(a) An involuntary patient may waive any of the rights provided by this chapter 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 of this title is waived, the court shall enter an order of disposition in accordance with subdivision (2) of § 5010 of this title.

(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 title, the action shall be dismissed, and § 5123 shall govern.

60 Del. Laws, c. 95, § 1.;

(a) 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 3 months render treatment to the involuntary patient in accordance with professional standards. If by the expiration of 3 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 person with a mental condition, the hospital shall so notify the court; and the court shall order a hearing to be held within 14 working days of such notice. If the court continues the involuntary confinement upon the expiration of an additional 6 months, and the involuntary patient has not been discharged by the hospital, and if in the opinion of the hospital the patient is still a person with a mental condition, the hospital shall so notify the court; and the court shall order a hearing to be held within 14 working days of such notice.

(b) Further hearing. — In any further hearing the procedural requirements of § 5006 of this title shall govern, and the court may make such findings and orders as are permitted by § 5010 of this title; provided, that the court may order that the involuntary patient's admission to the hospital shall be continued for an indefinite period, in which case the hospital shall report to the court at intervals not more than 6 months as to the continued need for involuntary hospitalization, and the court shall review the involuntary patient's status at such 6-month intervals and be required to hold hearings, at such intervals, until such time as the involuntary patient is discharged.

(c) Waiver of hearing. — An involuntary patient, if represented by counsel, may waive, orally or in writing, any hearing under this section. The waiver must be submitted in writing to the court or be orally presented in open court.

60 Del. Laws, c. 95, § 1; 68 Del. Laws, c. 310, §§ 6-8; 78 Del. Laws, c. 179, § 186.;

(a) Appeal of order of disposition. — Any party to the proceedings may appeal an order of disposition to the Supreme Court within 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.

(b) 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 release on the grounds:

(1) That the proceeding which led to the patient's commitment was illegal; provided, that that issue has not been previously determined; or

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

(c) 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 chapter.

60 Del. Laws, c. 95, § 1; 70 Del. Laws, c. 186, § 1.;

Notwithstanding §§ 5001-5013 of this title, the Court may enlarge the time for the performance of acts by the hospital or respondent's attorney, and of scheduling hearings thereunder, for good cause shown, for a reasonable period, consistent with the rights of the respondent.

62 Del. Laws, c. 300, § 7.;

The State Treasurer shall pay police officers, constables, sheriffs and deputy sheriffs for service as peace officers under this section at the rate of $0.31 for each mile necessarily traveled as well as a custody fee of $100 when transporting a person with a mental condition from 1 county to another county.

68 Del. Laws, c. 309, § 3; 75 Del. Laws, c. 349, § 1; 78 Del. Laws, c. 179, § 187.;