§ 40.1-22-10 - Discharges – Judicial review.

SECTION 40.1-22-10

   § 40.1-22-10  Discharges – Judicialreview. – (a) Any resident over eighteen (18) years of age or married residents undereighteen (18), except any resident who is under court ordered restriction,shall be free to leave any public or private developmental disabilitiesfacility at any time upon giving written or oral notice of the intention to thesuperintendent or other head of the facility. The superintendent or other headof the facility may restrict the right to leave the facility to normal workinghours and weekdays and, in his or her discretion, may require that certainresidents give three (3) days notice of their intention to leave the facility.

   (b) Where persons are required to give three (3) days noticeof an intention to leave the facility, an examination of the person may beconducted by a team to determine his or her suitability for discharge and toinvestigate other aspects of his or her case including his or her legalcompetency and his or her family, home, or community situation to the interestof discharging him or her from the facility.

   (c) If, however, the superintendent or other head of thefacility determines that discharge of a person who has given three (3) daysnotice would create a likelihood of serious harm to the person himself orherself or to other people by reason of the person's developmental disability,he or she shall forthwith petition the district court of the judicial districtwherein the facility is located to order that the person be further retained asa resident. The superintendent or other head may retain the person until thehearing on the petition has been held.

   (d) The court shall cause a notice, as defined in thischapter, of the time and place set for the hearing to be served upon the personand the nearest relative or guardian of the person and the superintendent orother head of the facility. In all hearings, the person shall be represented bylegal counsel and may present independent clinical testimony. If the person isfound by the court to be indigent, counsel shall be appointed by the court andan independent clinical examination, if requested by counsel for the person,may be provided by the court. The person shall be allowed not less thanforty-eight (48) hours after the appearance of counsel on his or her behalf inwhich to prepare his or her case. The person or his or her representative mayrequest either an open or closed hearing in any court proceedings and the courtin its discretion may grant the requests.

   (e) If the court finds after the hearing that the dischargeof the person would create a likelihood of serious harm to the person himselfor herself or to other people by reason of developmental disability, the courtshall order that the person be further retained as a resident and the personmay not, during the next six (6) month period, leave the facility except bypermission of the superintendent or other head of the facility and no furthercourt action shall be necessary to retain the person during the period. If thecourt does not so find, it shall order that the person be forthwith discharged.

   (f) Any person aggrieved by the decision of a district courtorder for further residential care under the provisions of this section mayappeal the findings and order of the district court de novo to the court havingappellate jurisdiction wherein the facility is located. In an appeal to a courtunder the provisions of this section, the findings and order of the districtcourt may be introduced into evidence by either party. If the appellate courtfinds after a hearing that discharge of the person would create a likelihood ofserious harm to the person him or herself or to other people by reason ofdevelopmental disability, the court shall order that the person be furtherretained as a resident and as such may not, during the next six (6) monthperiod, leave the facility except by permission of the superintendent or otherhead of the facility, and no further court order shall be necessary to retainthe person during the period.

   (g) As the basis for its order the appellate court shall makewritten findings as to the following:

   (1) That the person is developmentally disabled and theevidence upon which this determination is based; and

   (2) That, in accordance with the definition of "developmentaldisability" in 40.1-21-4.3(2) as indicated by the court, the discharge of theperson would create a likelihood of serious harm to the person himself orherself or to other people by reason of the developmental disability and theevidence upon which this determination is based; and

   (3) Any other issue or evidence, which the court deemsrelevant and necessary for inclusion in its findings. If the court finds thatthe person does not meet the definition of "developmental disability" inchapter 21 of this title such that there does not exist a likelihood of seriousharm to the person himself or herself or to other people by reason of thedevelopmental disability, it shall order that the person be forthwithdischarged.

   (h) If, at the end of any six (6) month period of retention,the person is still in need of care and treatment, he or she may, if he or sheso desires, be admitted or transferred to other care and treatment in the sameor another facility. If the person is unwilling to consent to continuedresidence, he or she shall be discharged; provided, however, that, if thesuperintendent or other head of the facility determines that the dischargewould create a likelihood of serious harm to the person himself or herself orto other people by reason of developmental disability, he or she shall, priorto the expiration of the six (6) month period, petition the district courtwhich made the earlier order to order, under the same procedures, that theperson be further retained as a resident, and the person may not during thenext one year period leave the facility except by permission of thesuperintendent or other head of the facility and no further court order shallbe necessary to retain the person during the period. The order may be renewedby the court for additional one year periods on petition of the superintendentor other head of the facility under the same conditions and procedures andopportunity for judicial review as above. The superintendent or other head ofthe facility shall be immune from civil suit for damages for retaining a personand petitioning the court pursuant to the provisions of this section.

   (i) Whenever a person before the district court appears to bedevelopmentally disabled and the court determines either that the crime has notbeen committed or that there is not sufficient cause to believe that the personis guilty thereof, the court may order evaluation procedures as previouslyprovided in this section, or after a hearing as provided in subsections (d) and(e), and in such a case the criminal action shall terminate.