§ 40.1-5-8 - Civil court certification.
SECTION 40.1-5-8
§ 40.1-5-8 Civil court certification.– (a) Petitions. A verified petition may be filed in the district court,or family court in the case of a person who has not reached his or hereighteenth (18th) birthday for the certification to a facility of any personwho is alleged to be in need of care and treatment in a facility, and whosecontinued unsupervised presence in the community would create a likelihood ofserious harm by reason of mental disability. The petition may be filed by anyperson with whom the subject of the petition may reside, or at whose house heor she may be, or the father or mother, husband or wife, brother or sister, orthe adult child of any such person, the nearest relative if none of the aboveare available, or his or her guardian, or the attorney general, or a localdirector of public welfare, or the director of the department of mental health,retardation, and hospitals, the director of the department of human services,or the director of the department of corrections, the director of thedepartment of health, the warden of the adult correctional institutions, thesuperintendent of the boys training school for youth, or his or her designatedagent, or the director of any facility, or his or her designated agent whetheror not the person shall have been admitted and is a patient at the time of thepetition. A petition under this section shall be filed only after thepetitioner has investigated what alternatives to certification are availableand determined why the alternatives are not deemed suitable.
(b) Contents of petition. The petition shall statethat it is based upon a personal observation of the person concerned by thepetitioner within a ten (10) day period prior to filing. It shall include adescription of the behavior, which constitutes the basis for the petitioner'sjudgment that the person concerned is in need of care and treatment and that alikelihood of serious harm by reason of mental disability exists. In addition,the petitioner shall indicate what alternatives to certification are available,what alternatives have been investigated, and why the investigated alternativesare not deemed suitable.
(c) Certificates and contents thereof. A petitionhereunder shall be accompanied by the certificates of two (2) physicians unlessthe petitioner is unable to afford or is otherwise unable to obtain theservices of a physician or physicians qualified to make the certifications. Thecertificates shall be rendered pursuant to the provisions of § 40.1-5-5except when the patient is a resident in a facility the attending physician andone other physician from the facility may sign the certificates, and shall setforth that the prospective patient is in need of care and treatment in afacility and would likely benefit therefrom, and is one whose continuedunsupervised presence in the community would create a likelihood of seriousharm by reason of mental disability together with the reasons therefor. Thepetitions and accompanying certificates shall be executed under penalty ofperjury, but shall not require the signature of a notary public thereon.
(d) Preliminary hearing. (1) Upon a determination thatthe petition sets forth facts constituting reasonable grounds to supportcertification, the court shall summon the person to appear before the court ata preliminary hearing, scheduled no later than five (5) business days from thedate of filing. This hearing shall be treated as a priority on the courtcalendar and may be continued only for good cause shown. In default of anappearance, the court may issue a warrant directing a police officer to bringthe person before the court.
(2) At the preliminary hearing, the court shall serve a copyof the petition upon the person and advise him or her of the nature of theproceedings and of his or her right to counsel. If the person is unable toafford counsel, the court forthwith shall appoint the mental health advocatefor him or her. If the court finds that there is no probable cause to supportcertification, the petition shall be dismissed, and the person shall bedischarged unless the person applies for voluntary admission. However, if thecourt is satisfied by the testimony that there is probable cause to supportcertification, a final hearing shall be held not less than seven (7) days normore than twenty-one (21) days after the preliminary hearing unless continuedat the request of counsel for the person, and notice of the date set down forthe hearing shall be served on the person. Copies of the petition and notice ofthe date set down for the hearing shall also be served immediately upon theperson's nearest relatives or legal guardian, if known, and to any other persondesignated by the patient, in writing, to receive copies of notices. Thepreliminary hearing can be waived by a motion of the patient to the court ifthe patient is a resident of a facility.
(e) Petition for examination. (1) Upon motion ofeither the petitioner or the person, or upon its own motion, the court mayorder that the person be examined by a psychiatrist appointed by the court. Theexamination may be conducted on an outpatient basis, and the person shall havethe right to the presence of counsel while it is being conducted. A report ofthe examination shall be furnished to the court, the petitioner, and theperson, and his or her counsel at least forty-eight (48) hours prior to thehearing.
(2) If the petition is submitted without two (2) physicians'certificates as required under subsection (c), the petition shall beaccompanied by a motion for a psychiatric examination to be ordered by thecourt. The motion shall be heard on the date of the preliminary hearing set bythe court pursuant to subsection (d) or as soon thereafter as counsel for thesubject person is engaged, appointed, and ready to proceed. The motion shall beverified or accompanied by affidavits and shall set forth facts demonstratingthe efforts made to secure examination and certification by a physician orphysicians and shall indicate the reasons why the efforts failed.
(3) After considering the motion and such testimony as may beoffered on the date of hearing the motion, the court may deny the applicationand dismiss the petition, or upon finding: (i) that there is a good cause forthe failure to obtain one or more physician's certificates in accordance withsubsection (c); and (ii) that there is probable cause to substantiate theallegations of the petition, the court shall order an immediate examination bytwo (2) qualified psychiatrists, pursuant to subsection (e)(1).
(f) Professional assistance. A person with respect towhom a court hearing has been ordered under this section shall have and beinformed of a right to employ a mental health professional of his or her choiceto assist him or her in connection with the hearing and to testify on his orher behalf. If the person cannot afford to engage such a professional, thecourt shall, on application, allow a reasonable fee for the purpose.
(g) Procedure. Upon receipt of the requiredcertificates and/or psychiatric reports as applicable hereunder, the courtshall schedule the petition for final hearing unless, upon review of thereports and certificates, the court concludes that the certificates and reportsdo not indicate with supporting reasons, that the person who is the subject ofthe petition is in need of care and treatment, that his or her unsupervisedpresence in the community would create a likelihood of serious harm by reasonof mental disability, and that all alternatives to certification have beeninvestigated and are unsuitable, in which event the court may dismiss thepetition.
(h) Venue. An application for certification under thissection shall be made to, and all proceedings pursuant thereto shall beconducted in, the district court, or family court in the case of a person whohas not yet reached his or her eighteenth (18th) birthday, of the division orcounty in which the subject of an application may reside or may be, or when theperson is already a patient in a facility, in the district court or familycourt of the division or county in which the facility is located, subject,however, to application by any interested party for change of venue because ofinconvenience of the parties or witnesses or the condition of the subject ofthe petition or other valid judicial reason for the change of venue.
(i) Hearing. A hearing scheduled under this sectionshall be conducted pursuant to the following requirements:
(1) All evidence shall be presented according to the usualrules of evidence, which apply in civil, non-jury cases. The subject of theproceedings shall have the right to present evidence in his or her own behalf,and to cross examine all witnesses against him or her, including any physicianwho has completed a certificate or filed a report as provided hereunder. Thesubject of the proceedings shall have the further right to subpoena witnessesand documents, the cost of such to be borne by the court where the court findsupon an application of the subject that the person cannot afford to pay for thecost of subpoenaing witnesses and documents.
(2) A verbatim transcript or electronic recording shall bemade of the hearing which shall be impounded and obtained or examined only withthe consent of the subject thereof (or in the case of a person who has not yetattained his or her eighteenth (18th) birthday, his or her parent, guardian, ornext of kin) or by order of the court.
(3) The hearing may be held at a location other than a court,including any facility where the subject may currently be a patient, where itappears to the court that holding the hearing at another location would be inthe best interests of the subject thereof.
(4) The burden of proceeding and the burden of proof in ahearing held pursuant to this section shall be upon the petitioner. Thepetitioner has the burden of demonstrating that the subject of the hearing isin need of care and treatment in a facility, is one whose continuedunsupervised presence in the community would create a likelihood of seriousharm by reason of mental disability, and what alternatives to certification areavailable, what alternatives to certification were investigated, and why thesealternatives were not deemed suitable.
(5) The court shall render a decision within forty-eight (48)hours after the hearing is concluded.
(j) Order. If the court at a final hearing finds byclear and convincing evidence that the subject of the hearing is in need ofcare and treatment in a facility, and is one whose continued unsupervisedpresence in the community would, by reason of mental disability, create alikelihood of serious harm, and that all alternatives to certification havebeen investigated and deemed unsuitable, it shall issue an order committing theperson to the custody of the director for care and treatment or to anappropriate facility. In either event and to the extent practicable, the personshall be cared for in a facility, which imposes the least restraint upon theliberty of the person consistent with affording him or her the care andtreatment necessary and appropriate to his or her condition. No certificationshall be made under this section unless and until full consideration has beengiven by the certifying court to the alternatives to in-patient care,including, but not limited to, a determination of the person's relationship tothe community and to his or her family, of his or her employment possibilities,and of all available community resources, alternate available livingarrangements, foster care, community residential facilities, nursing homes, andother convalescent facilities. A certificate ordered pursuant to this sectionshall be valid for a period of six (6) months from the date of the order. Atthe end of that period the patient shall be discharged, unless he or she isdischarged prior to that time, in which case the certification shall expire onthe date of the discharge.
(k) Appeals. (1) A person certified under this sectionshall have a right to appeal from a final hearing to the supreme court of thestate within thirty (30) days of the entry of an order of certification. Theperson shall have the right to be represented on appeal by counsel of his orher choice or by the mental health advocate if the supreme court finds that heor she cannot afford to retain counsel. Upon a showing of indigency the supremecourt shall permit an appeal to proceed without payment of costs, and a copy ofthe transcript of the proceedings below shall be furnished to the subject ofthe proceedings or to his or her attorney at the expense of the state. Thecertifying court shall advise the person of all his or her rights pursuant tothis section immediately upon the entry of an order of certification.
(2) Appeals under this section shall be given precedence,insofar as practicable, on the supreme court dockets. The district and familycourts shall promulgate rules with the approval of the supreme court to insurethe expeditious transmission of the record and transcript in all appealspursuant to this chapter.