Involuntary Hold Info

Legal Involuntary Hold Information

LPS The last name initials of the California legislators who wrote the California Mental Health Act of 1969 Lanterman-Petris-Short

WIC Welfare and Institutions Code

LPS Hold Also known as a mental health hold or psychiatric hold. Any holds defined in the Welfare and Institutions Code sections 5000 et. seq. (Listed below)

WIC 5150 Also known as 72 hour holds.
“Detention of Mentally Disordered Persons for Evaluation and Treatment” for a period of 72 hours for persons alleged to meet the legal criteria of being a danger to self or others or gravely disabled due to a mental disorder (See WIC 5150 for more detail).

WIC 5250 Also known as 14 day holds.
“Certification for Intensive Treatment” for a period of 14 days for persons alleged to meet the legal criteria of being a danger to self or others or gravely disabled due to a mental disorder (See WIC 5250 for more detail).

WIC 5260 Also known as additional 14-day hold.
“Additional Intensive Treatment of Suicidal Person” certification for an additional period of 14 days beyond WIC 5250 (the first 14 days) for persons who are allegedly suicidal due to a mental disorder (See WIC 5260 for more detail).

WIC 5270 Also known as 30 day holds.
“Additional Intensive Treatment” for an additional period of 30 days beyond WIC 5250 (the first 14 days) for persons who were gravely disabled on the first 14 day hold and allegedly remain gravely disabled due to a mental disorder (See WIC 5270 for more detail).

Certification Review Hearing WIC 5256
Also known as Probable Cause Hearings.
A facility-based hearing for persons on WIC 5250 and/or 5270 holds. The hearing is to determine if the psychiatric treatment facility has probable cause to detain the person for the remainder of the hold period. The facility is required to notify the court (Mental Health Counselor’s Office) when any person is placed on a 5250, 5260, or 5270 hold. The Certification review hearing is to be held within 4 days of the person being placed on the hold. A facility representative must present the probable cause information at the hearing. The representative of the facility must be a mental health professional designated by the director of the facility to present. The psychiatric treatment facility representative must show probable cause that the person is a danger to self or others or gravely disabled due to a mental disorder. The patient is usually represented by a Patient’s Rights Advocate from the Los Angeles County Department of Mental Health but may be represented by their own attorney. The hearing is based on the criteria of the current hold the person is on (See above for hold criteria).

Mental Health Hearing Referee WIC 5256.1
Also known as probable cause hearing officer or certification review hearing officer. Person designated by the Supervising Judge of the Mental Health Court to conduct Certification Review Hearings and file Judicial Reviews requested by persons on holds. If the Mental Health Hearing Referee is an attorney, they may also be authorized to conduct Medication Capacity Hearings (See Medication Capacity Hearings).

Judicial Review WIC 5275 et. seq.
Also known as Writ or Writ of Habeas Corpus.
“Judicial Review” A person may request one Judicial Review per hold. A person may choose to bypass the probable cause hearing for Judicial Review. A person may request Judicial Review if probable cause is found at their certification review hearing. The Writ must be filed with the court on the date taken and heard within two judicial days.

WIC 5300 Also known as 180-day post cert.
“Post certification Procedures for Imminently Dangerous Persons” for a period of 180 days beyond WIC 5250 the first 14 days hold for persons who allegedly have made a serious threat of substantial physical harm or attempted or inflicted physical harm on another due to a mental disorder (See WIC 5300 for more detail).

Application for Conservatorship WIC 5352
Also known as an LPS or Mental Health Conservatorship.
A mental health conservatorship begins with an application for conservatorship completed by a person designated to write LPS holds, filed with the Public Guardian’s Office. No applications for mental health conservatorship will be accepted from family or friends.

Medication Capacity Hearing WIC 5332
Also known as a Riese hearing or antipsychotic medication capacity hearing.
A facility bases hearing to determine if person’s on an LPS holds, other than a temporary conservatorship or conservatorship, has the capacity to refuse psychiatric medications. Hearings for persons on temporary conservatorship must be requested through Public Guardian/County Counsel. If the person is on conservatorship, the conservator should be notified and advised to request a hearing with the court. These hearings are held in Superior Court Department 95A. The initial hearing for LPS, holds must be held at the facility. The treating physician must file (FAX) a petition to the Mental Health Counselor’s office. The hearing must be scheduled within 72 hours. The decision of the Mental Health Hearing Referee may be appealed to the Court by either the patient or the treating physician. The current treating Physician must present the evidence at these hearings.

WIC 5350 Also, called conservatorship, LPS conservatorship, or mental health conservatorship.
These sections define the process of requesting conservatorship for a person who is alleged to be gravely disabled due to a mental disorder. Conservatorship lasts for a period of one year. The conservator may petition the court for reappointment each year. Failure to request reappointment as conservator before expiration of the current appointment, requires the court to end the conservatorship “By operation of law”

Temporary Letters of Conservatorship WIC 5352.1.
Also known as TCON.
The court may issue a temporary letter of conservatorship when a petition for conservatorship is filed by the Public Guardian’s Office. The temporary letter of conservatorship permits the Public Guardian to authorized continued involuntary treatment for a period of 30 days (NOTE may be extended up to 6 months).

Public Guardian Also known as PG.

WIC 5351 All applications for mental health conservatorships must be filed with the Public Guardian. The Public Guardian may serve as conservator if the court finds a person to be gravely disabled and there are no family or friends willing and able to be the conservator.

Deputy Public Guardian
Also known as DPG.
A deputy public guardian will conduct the investigation to determine if conservatorship should be established or may carry a caseload of persons on conservatorship under the Public Guardian.

Public Defender Also known as PD.
May represent the patient in any type of mental health case.

County Counsel Also known as CC.
Represents the Public Guardian on all conservatorship cases.

District Attorney Also known as DA.
Represents the State’s interest on most mental health cases.

LPS HOLDS CHART
View the LPS Holds Chart.

BEHAVIOR VARIABLES TO CONSIDER
The basis for holding a person in a Designated Psychiatric Treatment Facility is not a medical model. It is a legal model. The law and the courts have consistently held that personal freedom is the most important right we possess.
The Court is looking at behaviors that lead you to believe that a person due to a mental disorder is a Danger to Self, Danger to Others, and/or Gravely Disabled. Simply stating the diagnosis without behaviors does not meet the criteria. Simply believing the patient is very sick and anyone can see does not meet the criteria. The burden of proof showing the patient meets the legal criteria to be held against their will lies with the hospital. The following are variables with questions you must consider and be able to present on when you are holding a person on Danger to Self, Danger to Others, and/or Gravely Disabled due to a mental disorder.
Auditory Hallucinations
Is the patient telling you they are having auditory hallucinations or is it that, they appear to be responding to internal stimuli?
When asked if they are having auditory hallucinations does the patient answer?
If they answer:
Are the auditory hallucinations sounds or words?
If they are words is it someone they know?
Are the words saying good things or bad?
Are they commanding?
Are they telling them to hurt self or others?
Are they telling them to not eat?
Have they heard the voices in the past?
If they have heard them in the past, did they cause them to do anything?
If they do not answer can you describe any behaviors that seem to be the result of the patient responding to internal stimuli?
Do the auditory hallucinations help you establish that the patient meets the legal criteria of being a Danger To Self, Danger To Others, and/or Gravely Disabled? If so, how? Delusions
What type of delusion is the person having?
How do you know it is a delusion?
Is the delusion such that it would lead the person to cause harm to self or others?
Have they had the delusion in the past and has it caused them to do anything?
Does it prevent them from providing for food, clothing and/or shelter? If so, how?
Seriousness Of Precipitating Events
How serious were the circumstances that brought the patient into the hospital?
Who is reporting this information to you?
Is it serious and the patient is down playing it as nothing?
Did something happen physically or was it just words?
Has the patient done this in the past?
How does the precipitating event lead you to believe that the patient continues to be a Danger to self and others and/or Gravely Disabled at this time?
Thought Disorders
What thoughts do you feel are disordered?
Have you looked at cultural differences?
Is the thought disorder global, does it affect every part of their thinking or just a selected area?
If it is a selected area how does it impact on danger to self and/or others, and/or Grave Disability?
Recent Discharge From Psychiatric Hospital
When was the person last in a psychiatric treatment facility?
What were the circumstances of their release?
Were they released by the Court?
Were they released against medical advice?
Did they AWOL from the facility?
Can it be shown that the patient has a pattern of not following through with treatment plans?
Support System In The Community
Do they have family?
Is the family involved?
Do they have a long-standing placement to which they can return?
Is there someone who will help them?
Do they live independent?
Are they current on mortgage/rent payments?
If they say they want to live on the streets, have they ever done that?
Are they homeless?
If they are homeless are they able to maintain on the streets?
Do they know how to get food?
Do they know about homeless shelters?
Motivation To Take Medications
Does this person take their prescribed medications?
Do they like to drink alcohol or take illegal drugs?
Is their living situation such that they can take medications and have their prescriptions refilled?
Have they taken medications in the hospital?
Have they taken medications in the past?
Do they have a problem with side effects?
Do they need any special ongoing test to be on the medication?
Are they taking more than prescribed on medications?
Are there any physical reasons that interfere with their taking psychiatric medications?
Do they understand the reasons for taking the medications?
If they recently stopped taking the medications, why?
Did someone take their medications away or tell them not to take them?
Do they feel medications have helped them in the past?
Do they see any reason for taking the medications?

Who Is At Risk – Patient’s Proximity To, And Contact With This Person
Has the hospital done a Tarosoff?
Is there a restraining order?
Is it an identified person?
Is it any person who fits a certain description?
Has someone called and given information about threatening behavior from the patient?
Has the patient called and made threats?
Have the threats ever been acted on?
Has there been previous circumstance where the threats were carried out?

OVERVIEW OF THE PROBABLE CAUSE HEARING PROCESS
When a patient is hospitalized in a psychiatric hospital against his or her will, he or she is placed on a 72-hour hold (WIC 5150). At the end of the 72 hours or any time during the 72 hours, the doctor may decide to discharge the patient, have the patient sign into the hospital as a voluntary patient, or place the patient on a 14-day hold (WIC 5250). The doctor may place the patient on a 14-day hold if he or she feels the patient is a danger to self, danger to others, or gravely disabled (unable to provide food, clothing or shelter) due to a mental disorder.
When the patient is placed on a 14-day hold, the hospital must notify the Superior Court, Mental Health Counselor’s Office immediately (323) 226-2911.
Within the first four days of the 14-day hold a Probable Cause Hearing is scheduled at the psychiatric facility. The Mental Health Hearing Coordinator will notify the hospital of the date and time of the hearing. The hospital will be notified the afternoon before the scheduled hearing.
There are over 55 designated psychiatric treatment facilities in Los Angeles County conducting over 1400 hearings per month. It is extremely important that you notify the court when a patient, who has not yet had a hearing, signs voluntary or is discharged.
Attempts are made to accommodate doctor’s hours. If a hearing is scheduled, a professional staff member must present for the hospital.
At the probable cause hearing there is a patient’s rights advocate who is there to help the patient, the patient, the doctor or a hospital staff person to present information for the doctor and/or hospital and the hearing referee. The Court when needed provides an interpreter for the patient.
Family members are discouraged from attending the hearings. If the patient wishes to have a family member present, the person may be admitted to the hearing as an observer. If the family member wished to present information supporting the hospitalization they are encouraged to give the information to the hospital presenter and let them provide the information at the hearing. This process helps alleviate any potential hostility or alienation which might develop because of the patient wishing to be released from hospitalization and the family member feeling they should remain in the hospital for further treatment. If the family member has information supporting the patient being released from the hospital, they should likewise give this information to the patients’ rights advocate who will present the information at the hearing.
The probable cause hearings are administrative hearings. This means that they are much less formal than judicial hearings and those legal rules, such as rules of evidence (i.e., hearsay information) do not apply. The purpose of the hearing is to gather as much information as possible so the hearing referee can decide probable cause.
It is the responsibility of the hospital presenter to explain to the hearing referee: (1) the events and patient’s behavior leading up to the patient’s hospitalization, (2) the patient’s behavior during his hospitalization which illustrates his or her mental disorder and his or her dangerousness or his or her grave disability, (3) previous psychiatric history, (4) living arrangements before hospitalization and plans after discharge, (5) patients’ diagnosis, (6) medications currently prescribed.
It is the responsibility of the patients’ rights advocate to present the patient’s point of view. It is the job of the advocate to attempt to gain the patient’s release from the hospital if that is what the patient desires, though the release may not be in the patient’s best interest. This is the advocate’s job no matter what they feel personally.
If the hearing referee determines that there is probable cause for the patient to remain in the hospital, he or she will inform the patient of his decision and the reasons for that decision. The referee will attempt to inform the patient in a way that the patient will understand. The referee will also indicate that the patient has other legal options open to him or her, which the advocate will explain. If the patient desires to file a Writ of Habeas Corpus, the hearing referee will file the papers for him with the court.
If the hearing referee determines that there is no probable cause, he or she will inform the patient and hospital representative of his or her decision and will explain the reason for his or her decision. If the hospital and the patient agree, the hospital may accept the patient as a voluntary patient then. If not, the patient must be discharged from the hospital.

PRESENTATION INFORMATION PROBABLE CAUSE HEARING
Download a form which can be used by the facility representative when presenting information at the probable cause hearing.

Medication Capacity

• 72 hour/14 day hold
• Additional 14 day hold
• Additional 30 day hold
• 180 day post certification
(NOTE: Medication Capacity hearings for persons on a temporary conservatorship are held in Department 95A)

THE CONDUCT OF RIESE HEARINGS INFORMATION BOOKLET FOR DOCTORS AND HOSPITALS
View “The Conduct of Riese Hearings Information Booklet for Doctors and Hospitals”.

MEDICATION CAPACITY PETITION
View the Petition and Declaration Regarding Capacity to Give Informed Consent to Medication (Riese Petition).

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The Nevada law regarding release after a 72 hours psychiatric hold is below. It likewise requires a release after 72 hours, but only requires that a petition seeking involuntary admission be filed with the court before then to continue to hold the person against his or her will.

NRS 433A.150 Detention for evaluation, observation and treatment; limitation on time.
1. Any person alleged to be a person with mental illness may, upon application pursuant to NRS 433A.160 and subject to the provisions of subsection 2, be detained in a public or private mental health facility or hospital under an emergency admission for evaluation, observation and treatment.
2. Except as otherwise provided in subsection 3, a person detained pursuant to subsection 1 must be released within 72 hours, including weekends and holidays, after the certificate required pursuant to NRS 433A.170 and the examination required by paragraph (a) of subsection 1 of NRS 433A.165 have been completed, if such an examination is required, or within 72 hours, including weekends and holidays, after the person arrives at the mental health facility or hospital, if an examination is not required by paragraph (a) of subsection 1 of NRS 433A.165, unless, before the close of the business day on which the 72 hours expires, a written petition for an involuntary court-ordered admission to a mental health facility is filed with the clerk of the district court pursuant to NRS 433A.200, including, without limitation, the documents required pursuant to NRS 433A.210, or the status of the person is changed to a voluntary admission.
3. If the period specified in subsection 2 expires on a day on which the office of the clerk of the district court is not open, the written petition must be filed on or before the close of the business day next following the expiration of that period.

There needs to be “a written petition for an involuntary court-ordered admission to a mental health facility is filed with the clerk of the district court pursuant to NRS 433A.200, including, without limitation, the documents required pursuant to NRS 433A.210

NRS 433A.200 Petition: Filing; certificate or statement of alleged mental illness; statement of parent consenting to treatment of minor.
1. Except as otherwise provided in NRS 432B.6075, a proceeding for an involuntary court-ordered admission of any person in the State of Nevada may be commenced by the filing of a petition for the involuntary admission to a mental health facility or to a program of community-based or outpatient services with the clerk of the district court of the county where the person who is to be treated resides. The petition may be filed by the spouse, parent, adult children or legal guardian of the person to be treated or by any physician, psychologist, social worker or registered nurse, by an accredited agent of the Department or by any officer authorized to make arrests in the State of Nevada. The petition must be accompanied:
(a) By a certificate of a physician, psychiatrist or licensed psychologist stating that he or she has examined the person alleged to be a person with mental illness and has concluded that the person has a mental illness and, because of that illness, is likely to harm himself or herself or others if allowed his or her liberty or if not required to participate in a program of community-based or outpatient services; or
(b) By a sworn written statement by the petitioner that:
(1) The petitioner has, based upon the petitioner’s personal observation of the person alleged to be a person with mental illness, probable cause to believe that the person has a mental illness and, because of that illness, is likely to harm himself or herself or others if allowed his or her liberty or if not required to participate in a program of community-based or outpatient services; and
(2) The person alleged to be a person with mental illness has refused to submit to examination or treatment by a physician, psychiatrist or licensed psychologist. 2. Except as otherwise provided in NRS 432B.6075, if the person to be treated is a minor and the petitioner is a person other than a parent or guardian of the minor, the petition must, in addition to the certificate or statement required by subsection 1, include a statement signed by a parent or guardian of the minor that the parent or guardian does not object to the filing of the petition.
(Added to NRS by 1975, 1604; A 1985, 54, 2270; 1989, 1551, 1760; 1995, 2413; 2001, 3044; 2005, 1322; 2013, 3489)

NRS 433A.210 Requirements of petition that is filed after emergency admission. In addition to the requirements of NRS 433A.200, a petition filed pursuant to that section with the clerk of the district court to commence proceedings for involuntary court-ordered admission of a person pursuant to NRS 433A.145 or 433A.150 must include a certified copy of:
1. The application for the emergency admission of the person made pursuant to NRS 433A.160; and
2. A petition executed by a psychiatrist, licensed psychologist or physician, including, without limitation, a sworn statement that:
(a) He or she has examined the person alleged to be a person with mental illness;
(b) In his or her opinion, there is a reasonable degree of certainty that the person alleged to be a person with mental illness suffers from a mental illness;
(c) Based on his or her personal observation of the person alleged to be a person with mental illness and other facts set forth in the petition, the person poses a risk of imminent harm to himself or herself or others; and
(d) In his or her opinion, involuntary admission of the person alleged to be a person with mental illness to a mental health facility or hospital is medically necessary to prevent the person from harming himself or herself or others.
(Added to NRS by 1975, 1604; A 1985, 2270; 1989, 1551, 1760; 1995, 2414; 2001, 3044)

Firearms prohibition Form (Word Doc)

Hold Terms and Abbreviations 

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Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe general standards and procedures relating to the involuntary commitment of mentally ill persons.

(2) Statutory authority. These rules are authorized by ORS 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395. These rules replace OAR 309-033-0100 though 309-033-0170, which were in effect from September 2, 1992 through August 31, 1994.

Stat. Auth.: ORS 413.042, 426.005 – 426.395
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0000

309-033-0210

Definitions

(1) “Administrator- means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator- has the same meaning as “director of the facility- as that term is defined in ORS 426.005. Whenever “administrator- appears it means the administrator or designee.

(2) “Assignment- means the designation, pursuant to ORS 426.060, by the Division or its designee of the hospital, facility or CMHP where the committed person is to receive care, custody and treatment during the commitment period.

(3) “Assistant Administrator- means the Assistant Administrator of Addictions and Mental Health Division.

(4) “Caregiver- means the person who is appointed by the court under ORS 426.125 to be allowed to care for a mentally ill person on conditional release.

(5) “Clinical record- means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(6) “CMHP- means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(7) “Community hospital- means any hospital that is not a state hospital.

(8) “County governing body- means the county court or the board of county commissioners of one or more counties who operate a CMHP, or in the case of a Native American Reservation, the Tribal Council, or if the county declines to operate or contract for all or part of a CMHP, the board of directors of a public or private corporation selected by the county.

(9) “County of residence- means the county where the person currently maintains a mailing address or, if the person has no current mailing address within the state, the county where the person was found or the county in which a committed person has been conditionally released as defined by ORS 426.241 to 426.255.

(10) “Court- means the circuit court acting pursuant to ORS Chapter 426.

(11) “Custody- means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233;

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(12) “Designee- means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(13) “Director- means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director- also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(14) “Director of the county of commitment- means the director for the county where the person is committed.

(15) “Director of the county of placement- means the director for the county where the committed person is to be placed.

(16) “Director of the county of residence- means the director for the county of residence.

(17) “Diversion- means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237(1)(b).

(18) “Division- means the Addictions and Mental Health Division of the Oregon Health Authority.

(19) “Hospital hold- means the taking of a person into custody by order of a physician pursuant to ORS 426.232.

(20) “NMI- is the notification of mental illness required, pursuant to ORS 426.070, to be submitted by any two persons, a county health officer or a magistrate to the director and thereafter submitted by the director to the court or, pursuant to ORS 426.234, to be submitted by the physician or the director to the court. Pursuant to ORS 426.070 and 426.234, the court commences proceedings pursuant to ORS 426.070 to 426.130 upon receipt of the NMI.

(21) “Nonhospital hold- means the taking of a person into custody by order of a director pursuant to the provisions of ORS 426.233. A director’s hold and a trial visit hold are variations of a nonhospital hold.

(22) “Peace officer- means a sheriff, constable, marshal, municipal policeman, member of the Oregon State Police or investigator of the Criminal Justice Division of the Department of Justice and such other persons as may be designated by law.

(23) “Placement of a committed person- means the physical act of removing a committed person from the courtroom to the place where the person has been assigned to receive care, custody and treatment, or the transfer of a committed person from one location where the person has been assigned to receive care, custody and treatment to another location for the same purpose.

(24) “Psychiatrist- means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(25) “Psychologist- means a clinical psychologist licensed by the Oregon Board of Psychologist Examiners.

(26) “QMHP- means a qualified mental health professional that meets the following minimum qualifications:

(a) Psychiatrist licensed to practice in the State of Oregon;

(b) Physician licensed to practice in the State of Oregon;

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

(27) “Recertification- means the certification of continued commitment provided for under ORS 426.301.

(28) “Secure transport provider- means a secure transport provider approved according to OAR 309-033-0432, Standards for the Approval of a Secure Transport Provider to Transport a Person in Custody or on Diversion to an Approved Holding or Nonhospital Facility.

(29) “State hospital- means Oregon State Hospital in Salem and Portland, and Eastern Oregon Psychiatric Center in Pendleton.

(30) “Superintendent- means the chief executive officer of a state hospital, or designee, or a person authorized by the superintendent to act in the superintendent’s capacity for the purpose of this rule.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0010; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0220

General Standards

(1) Goals. The goals of the Division in implementing these civil commitment standards are:

(a) To promote the well-being of persons who are allegedly mentally ill and who are mentally ill during involuntary care, custody and treatment of mental illness pursuant to ORS Chapter 426;

(b) To promote the protection of the civil rights of each person who is allegedly mentally ill and who is mentally ill;

(c) To encourage consistent application of ORS Chapter 426 as it specifically pertains to each of the following groups:

(A) Persons who are alleged to be mentally ill; and

(B) Persons who are mentally ill.

(d) To encourage the provision of care, custody and treatment of persons in the least restrictive environment that currently is available within existing resources;

(e) To encourage voluntary enrollment of persons in available mental health service in lieu of pursuing involuntary treatment through civil commitment, whenever possible;

(f) To encourage that the director monitors the commitment process in their county, is knowledgeable of the statutes and administrative rules pertaining to civil commitment, provides leadership so that persons being held are afforded their civil rights and are treated with dignity in the implementation of ORS Chapter 426;

(g) To provide for the safety of the community when threatened by a person who is dangerous as a result of mental illness.

(2) State’s interest. The state’s interest is to establish sufficient facts for the court to make a decision that is consistent with the intent of ORS Chapter 426.

(3) Declaration for mental health treatment. The director shall establish procedure and policy which assures that every person who may become incapacitated by mental illness and unable to consent to treatment is educated about the Declaration for Mental Health Treatment at the time of admission or at the time of discharge from a hospital.

Stat. Auth.: ORS 413.042 & 426.060
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0030

309-033-0230

Custody of Persons Alleged to Be Mentally Ill Prior to Filing a Notification of Mental Illness

(1) Custody by a physician pursuant to ORS 426.231. A physician taking a person into custody pursuant to ORS 426.231 at a hospital approved under OAR 309-033-0550, Standards for the Approval of Hospitals Detaining Persons in Custody Pending Transport to an Approved Holding Hospital or Nonhospital Facility, shall detain the person for no more than 12 hours and during that time shall either:

(a) Authorize the person for transportation to an approved hospital and provide transportation according to the agreement required under OAR 309-033-0550; or

(b) Release the person, if the physician determines that the person no longer is dangerous to self or others.

(2) Custody by a peace officer or secure transport provider. A peace officer taking a person into custody shall remove the person to an approved hospital as directed by the director in the county where the person was taken into custody. The peace officer or approved secure transport provider shall only take a person into custody under the provisions of one of the following:

(a) Custody on peace officer’s own initiative. A peace officer may take a person into custody pursuant to the provisions of ORS 426.228 when the peace officer has probable cause to believe that the person is dangerous to self or others, and is in need of immediate care, custody or treatment for a mental illness;

(b) Custody on the director’s authority. The director may direct, pursuant to the provisions of ORS 426.233, a peace officer or an approved secure transport provider to take into custody a person who is dangerous to self or others and in need of immediate care, custody or treatment for mental illness;

(c) Custody of a committed person on the director’s authority. The director may direct a peace officer or an approved secure transport provider to take into custody, pursuant to the provisions of ORS 426.233, a committed person who is on trial visit, outpatient commitment or conditional release in the community, who is dangerous to self or others or who is unable to provide for basic personal needs, who is not receiving the care that is necessary for health and safety, and who is in need of immediate care, custody or treatment for mental illness.

(d) A peace officer may transfer a person in custody under this section to the custody of an approved secure transport provider. The peace officer may meet the approved Secure transport provider at any location that is in accordance with ORS 426.140 to effect the transfer. When transferring a person in custody to an authorized person, the peace officer shall deliver the report required under subsection (3) of this section to the authorized person.

(3) Peace officer’s written report. When taking a person into custody pursuant to ORS Chapter 426.228 by a peace officer’s own initiative, a peace officer shall prepare a written report which states:

(a) The reason for custody;

(b) The date, time and place the person was taken into custody; and

(c) The name of the director in the county where the person is taken into custody and a telephone number where the director may be reached at all times.

(4) Director’s written report. When a peace officer or approved secure transport provider takes a person into custody pursuant to ORS Chapter 426.228 at the direction of the director, a director shall prepare a written report which states:

(a) The reason for custody;

(b) The date, time and place the person was taken into custody; and

(c) The name of the director in the county where the person is taken into custody and a telephone number where the director may be reached at all times.

(5) Transportation to a hospital or nonhospital facility more than one hour away. If the peace officer determines that more than one hour is required to transport the person to a hospital or nonhospital facility approved by the Division, the peace officer or approved secure transport provider shall obtain a certificate, if possible, from a physician prior to transporting the person. A physician authorizing transport shall sign a certificate, on a form approved by the Division, only if the person’s condition, in the opinion of the physician, meets all of the following requirements:

(a) The travel will not be detrimental to the person’s physical health;

(b) The person is dangerous to self or others; and

(c) The person is in need of immediate care or treatment for mental illness.

(6) The director directs peace officers or approved secure transport providers to appropriate facility. The director shall adopt written procedures for directing peace officers or approved secure transport providers to transport persons taken into custody, pursuant to ORS 426.228, to an approved hospital or nonhospital facility:

(a) The written procedures shall include one of the following, whichever, in the opinion of the director, serves the best interests of persons with mental illness and the community:

(A) A list of approved hospitals or nonhospital facilities where peace officers or approved secure transport providers are to transport persons;

(B) A procedure for contacting the director 24 hours-a-day, seven days-a-week.

(b) The director shall distribute copies of the written procedures to the sheriff and the chief of police of each municipality in the county and approved secure transport providers. The procedures shall be distributed as often as the procedure is amended.

(c) The director may develop a written agreement with the law enforcement agencies in the county which designates a site or sites where the director can safely evaluate the person and determine which facility, in the director’s opinion, can best serve the person’s needs within the resources available. If such an agreement exists in a county, the director may direct a peace officer to transport a person in custody under ORS 426.228 to a site designated in the agreement. Once the director makes a determination, the peace officer shall transport and deliver the person to a hospital or nonhospital facility as directed by the director. The agreement shall:

(A) Designate the site or sites where the director can safely evaluate the person’s needs for treatment;

(B) Define the minimum response time for the director meeting the peace officer at the site; and

(C) Be signed by all parties to the agreement.

Stat. Auth.: ORS 413.042, 426.228, 426.231 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0040; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0240

Initiation of the Civil Commitment Process

(1) Initiation. The civil commitment process is initiated when an NMI is filed with the circuit court. The NMI shall be filed with the court as directed below:

(a) Public petition. When an NMI is given to the director of the county where the allegedly mentally ill person resides pursuant to ORS 426.070, the director shall immediately file the NMI with the court in the county where the allegedly mentally ill person resides. The following persons may give an NMI to the director:

(A) Any two persons;

(B) A county health officer; or

(C) Any magistrate.

(b) Hospital hold with no request from director. When a physician admits or retains a person in a hospital pursuant to ORS 426.232, Hospital Hold, and the director in the county where the person resides makes no request for the physician to file the NMI in the county where the person resides, the physician shall file the NMI with the court in the county where the person is hospitalized;

(c) Hospital hold with request from director. When a physician admits or retains a person in a hospital pursuant to ORS 426.232, and the director in the county where the person resides requests the physician to do so, the physician shall file the NMI with the court in the county where the person resides;

(d) Hospital hold subsequent to peace officer custody with no request from director. When a physician admits a person to a hospital pursuant to ORS 426.232, subsequent to the person being brought to the hospital by a peace officer or approved secure transport provider, and the director of the county where the hospital is located makes no request, pursuant to ORS 426.234, the physician shall file the NMI with the court in the county where the person initially was taken into custody by the peace officer;

(e) Hospital hold subsequent to peace officer custody with request from director. When a physician admits a person to a hospital pursuant to ORS 426.232, subsequent to the person being brought to the hospital by a peace officer or approved secure transport provider, and the director of the county where the hospital is located requests the physician to do so, the physician shall file the NMI with the court in the county where the person is hospitalized.

(f) Nonhospital hold with no request from director. When a director in the county where the director admits or retains a person in a nonhospital facility pursuant to ORS 426.233, and the director in the county where the person resides makes no request for the director to file the NMI be filed in the county where the person resides, the director shall file the NMI with the court in the county where the person initially was taken into custody; and

(g) Nonhospital hold with request from director. When a director admits or retains a person in a nonhospital facility pursuant to ORS 426.233, and the director in the county where the person resides requests the director to do so, the director shall file the NMI with the court in the county where the person resides.

(2) Initiation of commitment proceedings by two persons, a county health officer or magistrate. The NMI shall be given to the director in the county where the allegedly mentally ill person resides. If the person has no residence, then the NMI shall be given to the director in the county where the person currently is located. The director shall file the original NMI with the court on the day the NMI is received or, if the NMI is received outside the court’s routine business hours, the next day the court is open for business. The director shall retain a copy of the NMI in the clinical record as required by OAR 309-033-0930, Procedures for the Investigation.

(3) Initiation by hospital hold. The physician who takes a person into custody, pursuant to ORS 426.232, in a hospital approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion, shall:

(a) File an NMI with the appropriate court as described in OAR 309-033-0240, Initiation; and

(b) Immediately notify the director in the county in which the person was hospitalized, unless the person resides in a county other than the county where the person is hospitalized in which case the physician shall immediately notify the director in the county where the person resides.

(4) Initiation by nonhospital hold. The director, after authorizing the taking of a person into custody pursuant to the provisions of ORS 426.233 (the director’s hold and trial visit hold), shall file a NMI with the appropriate court as described in OAR 309-033-0240.

(5) How a director requests where the NMI is filed. A director may request that the physician, in the case of a hospital hold, or the director of the county where the person was taken into custody, in the case of a nonhospital hold, file the NMI according to the provisions of ORS 426.234 by either:

(a) On a case by case basis. Making the request immediately upon receipt of the notice required by ORS 426.234; or

(b) Upon general request. Sending a written general request to a hospital or a director.

Stat. Auth.: ORS 413.042, 426.228, 426.231 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0050; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0250

Standards for Custody, Hospital and Nonhospital Holds, Emergency Commitment and Emergency Hospitalization of Persons Under Warrant of Detention

(1) Criteria for placement into custody. Only persons who are a danger to self or others and who are in need of treatment for mental illness shall be placed in custody at a facility approved by the Division.

(2) Warrant of detention. Upon the receipt of a warrant of detention issued by the court pursuant to ORS 426.070, the director or the sheriff of the county shall take the person into custody and remove the person to a hospital approved by the Division. Whoever takes the person into custody shall inform the person of his/her rights with regard to representation by or appointment of counsel as described in ORS 426.100 and be given the warning described under ORS 426.123 and OAR 309-033-0540, Warning.

(3) Hospital hold. Only a physician with admitting privileges or on staff at a hospital approved by the Division and who has completed a face-to-face examination of the person may retain the person in custody in the hospital as provided by ORS 426.232. When implementing hospital holds, the hospital shall assure the following:

(a) The consulting physician is not required to have admitting privileges at the hospital;

(b) The hospital shall not require the consulting QMHP to be a member of the hospital’s allied staff. However, the hospital may extend allied staff privileges to the consulting QMHP;

(c) The admitting physician shall document the following information on the NMI, retaining a copy of the NMI in the clinical record:

(A) Examples of indicators that support the physician’s belief that the person has a mental illness;

(B) Examples of thoughts, plans, means, actions, history of dangerousness or other indicators that support the physician’s belief that the person is imminently dangerous.

(4) Peace officer custody requested by director. This section establishes standards and procedures for a director to direct a peace officer to take into custody a person who the director has probable cause to believe is dangerous to self or any other person and who the director has probable cause to believe is in need of immediate care, custody or treatment for mental illness:

(a) A county governing body may authorize the director, or a person named and recommended by the director, to direct a peace officer or approved secure transport provider to take allegedly mentally ill persons into custody. Such an authorization shall be made formally and in writing by the county governing body of the director. The director shall keep a copy of each authorization in each person’s personnel file:

(b) Prior to directing a peace officer or approved secure transport provider to take a person into custody, a director shall have face-to-face contact with the person and document on forms approved by the Division, the evidence for probable cause to believe that the person is:

(A) Dangerous to self or others; and

(B) In need of immediate care, custody or treatment for a mental illness.

(5) When a person in custody can be released. A person shall who is detained, in custody, or on a hold shall be released as described:

(a) Physician’s release of a person on peace officer custody. When a person is brought to a hospital by a peace officer or approved secure transport provider pursuant to ORS 426.228, Peace Officer Custody, the treating physician shall release the person if, upon initial examination prior to admission, the physician makes the determination that the person is not dangerous to self or others. It is not necessary to notify the court of the release;

(b) Physician’s release of a person on transport custody. At any time during the 12 hour detention period, the treating physician shall release a person detained pursuant to ORS 426.231, Transport Custody, whenever the physician makes the determination that the person is not dangerous to self or others. In no case shall a physician involuntarily detain a person at a hospital approved solely for Transport Custody under OAR 309-033-0550 longer than 12 hours. It is not necessary to notify the court of the release;

(c) Physician’s release of a person on a hospital hold. The treating physician shall release a person retained or admitted to a hospital pursuant to ORS 426.232, Hospital Hold, whenever the physician makes the determination that the person is not dangerous to self or others. The treating physician shall immediately notify the director and the circuit court where the NMI was filed. See OAR 309-033-0240; or

(d) Director’s release of a person on a nonhospital hold. The director shall release a person detained in a nonhospital facility, approved under OAR 309-033-0530, pursuant to ORS 426.233, Nonhospital Hold, whenever the director, in consultation with a physician, makes the determination that the person is not dangerous to self or others. The director shall immediately notify the circuit court.

(6) When a person in custody cannot be released. Once the person is admitted to a hospital or nonhospital facility, a person taken into custody pursuant to ORS 426.070 (warrant of detention), may only be released by the court. However, a person may be discharged from a hospital or nonhospital facility when the person is transferred to another approved facility.

Stat. Auth.: ORS 413.042, 426.070, 426.231, 426.232, 426.233 & 426.234
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0060; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0260

Diversion from Commitment Hearing

(1) Notice to court by director. The director and a psychiatrist may certify a person for diversion at any time up to three judicial days after the person has been taken into custody.

(2) Treatment plan. The director and the treating psychiatrist shall prepare a treatment plan that describes, in general terms, the types of treatment and medication to be provided during the diversion. The general treatment plan shall be descriptive of the range of services and medications to be provided, and shall include a description of:

(a) Any of the following classes of medication, if medication is to be administered:

(A) Antipsychotics;

(B) Antidepressants;

(C) Mood stabilizers;

(D) Anti-anxiety medications; or

(E) Anti-side effect medications.

(b) Mental health interventions, therapies or diagnostic procedures to be employed;

(c) The person’s preferences about medications and therapies and any limitations on the specific use of medications or therapies to which the director and the treating psychiatrist have agreed;

(d) Location where treatment is to be initiated and the type of hospital or nonhospital facilities where the person may be transferred during the diversion; or

(e) Other conditions or limitations agreed to by the person and the director concerning the care or treatment that is to be provided.

(3) Notice to person. At the initiation of the diversion period, the director and the psychiatrist shall inform the person verbally, and in writing, of the usual and typical restraints or seclusion which may be employed in an emergency to assure health or safety.

(4) Psychiatrist to provide information. The psychiatrist shall provide the information described in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given, when administering a specific medication.

(5) Consent for non-psychiatric care. A treating physician shall obtain the person’s consent for non-psychiatric medical care and treatments which may be prescribed during the diversion. The general treatment plan for psychiatric intervention shall not include plans for non-psychiatric medical care or treatment.

(6) Refusal of treatment/demand for discharge. The person on diversion may refuse psychiatric treatment described in the general treatment plan or demand discharge at any time during the diversion by signing the form described in this paragraph or, if the person refuses to sign the form, by verbally making his or her refusal of treatment or demand for discharge known to two staff of

the facility. In accepting the person’s refusal of treatment or demand for discharge the staff of the facility shall:

(a) Provide the person a warning, both verbally and in writing, at the person’s first indication that he/she wishes to refuse treatment or demand discharge, which states:

“If you refuse psychiatric treatment described in the general treatment plan or demand to be discharged you may be required to appear at an involuntary civil commitment hearing. It is your right to request an involuntary civil commitment hearing at this time. If a judge finds you to be a mentally ill person you may be committed for up to 180 days. However, if a judge finds you not to be a mentally ill person you may be released. The treatment in which you were to participate as a condition of avoiding a commitment hearing is described in your general treatment plan. You were given a copy of your general treatment plan when you agreed to diversion. You may see the copy of your general treatment plan on file with this facility at any time. You may talk with your attorney before you refuse this treatment, demand discharge or request a hearing.”

(b) If the person refuses treatment, demands discharge or requests a hearing, offer the person the following form to sign:

“Warning

If you refuse psychiatric treatment described in your general treatment plan or demand discharge you may be required to appear at an involuntary civil commitment hearing. You have a right to request an involuntary civil commitment hearing at this time. If a judge finds you to be a mentally ill person you may be committed for up to 180 days. The psychiatric treatment in which you were to participate as a condition of avoiding a commitment hearing is described in your general treatment plan. You were given a copy of your general treatment plan when you agreed to diversion. You may see the copy of your general treatment plan on file with this facility at any time. You may talk with your attorney before you refuse this treatment, demand discharge or request a hearing.

I refuse the treatment described in my general treatment plan.

I request a hearing before the circuit court.

_____________________________

Signature of Certified Person.-

(c) If the person refuses to sign the form described in this section and verbally or nonverbally refuses treatment, the staff of the facility shall document the person’s refusal on the form and in the person’s clinical record;

(d) Immediately upon the person’s refusal of treatment, demand for discharge or request for a hearing, the treating physician shall treat the person as a person in custody, as provided under ORS 426.072, and shall immediately notify the director. The director shall immediately request a hearing.

(7) Director of the county of residence approval of payment for diversion. A person shall be on diversion only if payment for the care, custody and treatment is approved verbally by the director of the county of residence as provided under ORS 426.237. The director of the county of residence’s approval shall be documented by a written statement, signed by the director, and distributed by the end of the diversion period as follows:

(a) The original shall be filed in the clinical record at the CMHP; and

(b) A copy shall be delivered to each facility serving the person during the diversion.

Stat. Auth.: ORS 413.042, 426.236 & 426.237
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0070

309-033-0270

Provision of Care, Custody and Treatment of Persons Committed to the Division

(1) Provision of rights. In addition to the rights provided under ORS 426.385, committed persons also have the rights provided under ORS 430.205 through 430.210 and this rule, including:

(a) A Committed Person’s Right to Fresh Air. For the purpose of this rule, these terms have the following meanings:

(A) “Fresh air- means the inflow of air from outside the facility where the committed person is receiving services. “Fresh air- may be accessed through an open window or similar method as well as through access to the outdoors.

(B) “Outdoors- means an area with fresh air that is not completely enclosed overhead. “Outdoors- may include a courtyard or similar area.

(b) If a committed person requests access to fresh air and the outdoors or the committed person’s treating health care provider determines that fresh air or the outdoors would be beneficial to the committed person, the facility in which the committed person is receiving services shall provide daily access to fresh air and the outdoors unless this access would create a significant risk of harm to the committed person or others.

(c) The determination whether a significant risk of harm to the committed person or others exists shall be made by the committed person’s treating health care provider. The treating health care provider may find that a significant risk of harm to the committed person or others exists if:

(A) The committed person’s individual circumstances and condition indicate an unreasonable risk of harm to the committed person or others which cannot be reasonably accommodated within existing programming should the committed person be allowed access to fresh air and the outdoors; or

(B) The facility’s existing physical plant or existing staffing prevent the provision of access to fresh air and the outdoors in a manner than maintains the safety of the committed person or others.

(d) If a facility determines that its existing physical plant prevents the provision of access to fresh air and the outdoors in a safe manner, the facility shall make a good faith effort at the time of any significant renovation to the physical plant that involves renovation of the unit or relocation of where committed persons are treated to include changes to the physical plan or location that allow access to fresh air and the outdoors, so long as such changes do not add an unreasonable amount to the cost of the renovation.

(2) Provision of care at a state hospital. The superintendent of the state hospital serving the county of commitment shall be responsible for all admissions to the state hospital:

(a) The superintendent, in consultation with the director, shall determine whether the best interests of a committed person are served by an admission to the state hospital;

(b) The superintendent shall implement policies and procedures which afford a committed person placed in a state hospital the rights provided by ORS 426.385, 430.205 through 430.210 and this rule.

(3) Provision of care at a community hospital. The director shall assign and place a committed person only at a community hospital approved under OAR 309-033-0530:

(a) The admitting physician, in consultation with the director, shall determine whether the best interests of a committed person are served by an admission to a community hospital;

(b) The administrator shall implement policies and procedures which afford a committed person placed in a community hospital the rights provided by ORS 426.385, 430.205 through 430.210 and this rule.

(4) Provision of care at a nonhospital facility or an outpatient program. The director shall only assign and place a committed person in a nonhospital facility that is licensed or certified by the Division:

(a) The administrator, in consultation with the director, shall determine whether the best interests of a committed person are served by an admission to a nonhospital facility or an outpatient program;

(b) The administrator shall implement policies and procedures which afford a committed person placed in a nonhospital facility or an outpatient program the rights provided by ORS 426.385, 430.205 through 430.210 and this rule;

(c) The director shall place on a trial visit a committed person who is discharged from a state hospital or a community hospital when the director assigns and places the person in a nonhospital facility;

(d) The director shall place a committed person, who the court has ordered on outpatient commitment at the commitment hearing, on outpatient commitment when the director assigns and places the person in a nonhospital facility.

(5) Provision of medical services for a committed person. The superintendent of a state hospital, the treating physician at a community hospital or the director may transfer a committed person to a general hospital, or transfer a committed person from a psychiatric ward to a medical ward for medical care:

(a) The treating physician shall only provide medical care with the consent of the committed person in accordance with OAR 309-033-0600 through 309-033-0650;

(b) The superintendent or treating physician shall transfer a committed person to a general hospital for medical services on a pass or discharge the person from the state hospital when it is determined that the person will not return to the state hospital within a reasonable length of time, or that discharge is clinically appropriate and is required for the person to have access to third-party insurance benefits;

(c) The treating physician shall immediately notify the director that a person was transferred to another hospital for medical care under this subsection.

Stat. Auth.: ORS 413.042, 426.060, 426.385 & 430.205 – 430.210
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0080; MHS 5-2009, f. & cert. ef. 12-17-09

309-033-0280

Procedures for Committed Persons on Outpatient Commitment or Trial Visit

(1) Outpatient commitment. At the time of the commitment hearing the director may place a committed person on an outpatient commitment if adequate treatment services are available in the county. The director shall be responsible for:

(a) Enrolling the committed person in treatment services and assuring that the committed person has an opportunity to participate in the development of the treatment plan;

(b) Distributing the conditions of placement as pursuant to ORS 426.278 and OAR 309-033-0280, Distribution of the Conditions of Placement, below;

(c) Monitoring and documenting the provision and consumption of services which fulfill the conditions set for the outpatient commitment;

(d) Petitioning the court for a revocation hearing if the best interests of the committed person require a modification in the conditions of placement for a treatment option which is more restrictive;

(e) With the participation of the committed person, changing the conditions to less restrictive conditions, if appropriate; and

(f) Documenting in the clinical record any conditions of placement requiring modification by means of a report which:

(A) Documents the need for a change in the conditions of outpatient commitment;

(B) Sets new conditions of commitment;

(C) Describes the reasons for the new conditions;

(D) Is signed by the committed person and the mental health professional assigned to the case, or, if the committed person refuses to sign the new conditions of placement, such fact shall be documented in the report; and

(E) Documents that a copy of the changes and the reasons for the changes was distributed to appropriate persons described in OAR 309-033-0280, Distribution of the Conditions of Placement, below.

(2) Trial visit. The director may grant a trial visit to any committed person during a period of commitment, upon approval of the director of the county of placement. A director may grant a trial visit to any committed person during a period of community inpatient treatment. While it may be clinically advisable, the director is not required to obtain the consent or signature of the committed person:

(a) Trial visit of a committed person shall not exceed the time remaining in the period of commitment;

(b) Conditions for trial visit shall include designation of a facility, service or other provider to provide care or treatment;

(c) The director shall place the person on trial visit in accordance with OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division;

(d) The director shall evaluate any complaints received from any person concerning the behavior or treatment of a committed person on trial visit. The director shall document the results of the evaluation in the clinical record;

(e) Modification of the conditions of trial visit. The director may modify the conditions of placement for trial visit:

(A) Any modification shall not include a treatment option which is more restrictive than the current conditions of placement;

(B) The director shall petition the court for a revocation hearing if the best interests of the committed person require a modification in the conditions of placement for a treatment option which is more restrictive;

(C) The director shall document in the clinical record any conditions of placement requiring modification by means of a report which:

(i) Documents the need for a change in the conditions of outpatient commitment;

(ii) Sets new conditions of commitment;

(iii) Describes the reasons for the new conditions;

(iv) Is signed by the committed person and the mental health professional assigned to the case, or, if the committed person refuses to sign the new conditions of placement, such fact shall be documented in the clinical record; and

(v) Documents that a copy of the changes and the reasons for the changes was distributed to appropriate persons provided under ORS 426.278 and OAR 309-033-0280, Distribution of the Conditions of Placement, below.

(f) Transfer of trial visit to another county. The director may transfer a person on trial visit to another county only if the director for the county where the person will reside agrees to accept the trial visit:

(A) The director of the county where the person currently resides shall provide the director of the county where the person will reside a copy of the current treatment plan for the person on trial visit;

(B) Immediately upon accepting the trial visit the director of the county where the person will reside shall enroll the person on trial visit in treatment services and shall make any modifications in the trial visit as necessary and distribute the modified conditions of placement as required under OAR 309-033-0280, Distribution of the Conditions of Placement, below.

(3) Distribution of the conditions of placement. When a committed person is placed on conditional release, outpatient commitment or trial visit, or when the conditions of placement are modified in any manner, the current conditions of placement shall be distributed by the director to the following persons, pursuant to ORS 426.278:

(a) The committed person;

(b) The director of the county in which the committed person is to receive hospital, nonhospital or outpatient treatment;

(c) The administrator of any facility, service or other provider designated to provide care or treatment;

(d) The court of current commitment; and

(e) The appropriate court of the county in which the committed person lives during the commitment period if the person is living in a different county than the county of the court that made the current commitment.

Stat. Auth.: ORS 413.042, 426.127, 426.273 & 426.278
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0090

309-033-0290

Assignment and Placement of Persons Committed to the Division

(1) Assignment authority. The Division, pursuant to ORS 426.060, delegates the responsibility for the assignment and placement of committed persons to the director of the county of commitment:

(a) The director may assign or transfer a committed person to any facility or program approved by the Division which, in the opinion of the director, will appropriately meet the mental health needs of the committed person;

(b) The director may discharge the committed person from commitment by notifying, in writing, the court having jurisdiction, if the director determines the person no longer is a mentally ill person as defined by ORS 426.005.

(2) Assignment outside the county of residence. The director of the county of commitment may assign the committed person to a facility in a county other than the county of residence only with the approval of the director of the county of residence and the director of the county of placement:

(a) When the director of the county of commitment assigns a committed person under this section, the director of the county of commitment shall transfer the responsibility for assignment and placement to the director of the county of placement;

(b) The Assistant Administrator shall assign a committed person under this section when the director of the county of commitment, the director of the county of residence and the director of the county of placement determine that they cannot agree on the assignment of the person and request the Division to make the assignment:

(A) The Assistant Administrator shall determine fiscal responsibility for the services to be delivered to the committed person and shall look to existing applicable laws, contracts and interagency agreements;

(B) The decision of the Assistant Administrator shall be final.

(c) When placement is determined, the director of the county of placement shall accept the responsibility for further assignment and placement;

(d) The director of the county of commitment shall petition the court in the county where the person was committed to transfer jurisdiction to the court in the county where the person is to reside, pursuant to ORS 426.275.

(3) Assignment to a state hospital. The director of the county of commitment shall only assign and place a committed person in a state hospital with the consent of the superintendent.

(4) Assignment procedure. The director of the county of commitment shall make the assignment in writing immediately upon commitment of a person by the court or at the time the placement of a committed person is changed during the commitment period. The director shall:

(a) Retain an original assignment order on file in safe keeping for seven years;

(b) Deliver a signed original copy of the assignment order to the person prior to placement;

(c) Enter into the Division’s current computer data system information about the committed person including:

(A) Name and any known aliases;

(B) Date of birth;

(C) Address of current residence;

(D) Address where assigned for treatment if different from residence;

(E) Name and telephone number of the administrator of the hospital, facility or program responsible for the person’s treatment; and

(F) Any other data as requested by the Division.

(d) Out of county assignments shall include a statement that assignment and placement responsibility is transferred to the director of the county of placement.

(5) Appeal of assignment procedure. At any time during the period of commitment, a committed person may appeal to the Assistant Administrator for Mental Health for a change in assignment made by a director.

(a) How to make an appeal. The committed person shall make the appeal in writing and shall include the following information in the appeal:

(A) A statement that the committed person appeals the current assignment;

(B) The reason(s) the committed person believes the current assignment is inappropriate; and

(C) The proposed alternate placement and the reasons the committed person is requesting the alternate placement.

(b) Appeal of an assignment to a community hospital or to the community. The Assistant Administrator shall make a determination of an appealed assignment for persons currently assigned to community hospitals or community placements. The Assistant Administrator shall determine the assignment for the committed person, and notify the committed person of the assignment, in writing or verbally, within five business days of the receipt of the written appeal. The Assistant Administrator’s determination shall be final:

(A) In making a determination of an appealed assignment the Assistant Administrator:

(i) Shall review the written appeal;

(ii) Shall contact the director making the assignment, and consider the director’s reason(s) for making the assignment;

(iii) Shall consider the opinion of the person’s treating physician if the person is placed at a community hospital;

(iv) May require the director to submit a written statement which gives the reason(s) for the assignment; and

(v) May consider the consultation or opinion of any person that the Assistant Administrator believes has knowledge relevant to the case.

(B) The Assistant Administrator shall use the following criteria when making a determination of an appealed assignment:

(i) The assignment shall be in the best interests of the committed person;

(ii) The assignment shall assure the safety of the person and the community; and

(iii) The assignment shall be in the least restrictive environment that the resources of the person or Division will allow.

(c) Appeal of an assignment to a state hospital. The Administrator shall make a determination of an appealed assignment for persons currently assigned to a state hospital or where the appeal requests assignment to a state hospital. The Administrator shall determine the assignment for the committed person, and notify the committed person of the assignment, in writing or verbally, within five business days of the receipt of the written appeal. The Administrator’s determination shall be final:

(A) In making a determination of an appealed assignment the Administrator shall consider the opinion of the superintendent, or designee, of the state hospital affected by the appeal, and the report of the Assistant Administrator. In making the report to the Administrator, the Assistant Administrator:

(i) Shall review the written appeal;

(ii) Shall contact the director making the assignment, and consider the director’s reason(s) for making the assignment;

(iii) Shall consider the opinion of the person’s treating physician if the person is placed at a community hospital;

(iv) May require the director to submit a written statement which gives the reason(s) for the assignment;

(v) May consider the consultation or opinion of any person that the Assistant Administrator believes has knowledge relevant to the case;

(vi) Shall make a recommendation about the proposed assignment; and

(vii) Shall submit the report within three business days after the Division receives the appeal.

(B) The Administrator shall use the following criteria when making a determination of an appealed assignment:

(i) The assignment shall be in the best interests of the committed person;

(ii) The assignment shall assure the safety of the person and the community; and

(iii) The assignment shall be in the least restrictive environment that the resources of the person or Division will allow.

Stat. Auth.: ORS 413.042, 426.060
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0100

309-033-0300

Transfers Between Classes of Facilities

(1) Transfers between classes of facilities. The director may transfer a committed person from one class of facility to another in the same class or in a less restrictive class as provided by ORS 426.060. However, the director shall transfer a committed person who has voluntarily agreed to placement at the facility only with the written consent of the person. The director shall transfer committed persons as provided by OAR 309-033-0400 through 309-033-0440, Standards for Transportation and Transfer of Persons in Custody or on Diversion, and OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division. The director shall modify the conditions of trial visit to reflect the change of placement and shall notify the following persons of the transfer:

(a) The committed person;

(b) The court in the county where the person was committed;

(c) The court in the county where the person is to be placed;

(d) The director in the county where the person is to reside;

(e) The administrator of the facility designated to provide care or treatment; and

(f) Any other provider designated to provide care or treatment.

(2) Transfers restricted by rule. The director may transfer a committed person from a facility of one class to another facility of a same class or lower class by:

(a) Assigning the committed person to the new facility; and

(b) Modifying the person’s commitment status as follows:

(A) Persons transferred to a Class 2 or Class 3 facility. When the director transfers a committed person to a Class 2 or Class 3 facility, the director shall place the person on trial visit (see OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division);

(B) Transfers between Class 1 hospitals or facilities. The director shall transfer a person between Class 1 hospitals or facilities without placing the committed person on trial visit; or

(C) Transfer to any facility and discharged from commitment. When the director determines a committed person is no longer a mentally ill person, the director shall discharge the person from commitment (see OAR 309-033-0330, Discharge of Committed Persons from Commitment Status) and enroll the person in services voluntarily at the receiving facility.

(3) Transfers from a facility of one class to a facility of a more restrictive class:

(a) Involuntary transfers of committed persons. The director shall transfer a committed person, who is on trial visit, to a facility of a more restrictive class only:

(A) By order of the court after a hearing, pursuant to ORS 426.275; or

(B) Initiate involuntary procedures as provided in this paragraph and as provided by ORS 426.233 (see subparagraph (c) of this paragraph).

(b) Voluntary transfers of committed persons. The director may transfer a committed person, who is on trial visit, to a facility of a more restrictive class with the committed person’s consent. However, if the committed person revokes his/her consent to the current more restrictive placement and requests to be placed at another facility of a less restrictive class, as soon as reasonably possible the director shall:

(A) Transfer the person to a facility where the person consents to receive services; or

(B) Initiate involuntary procedures as provided in this paragraph and by ORS 426.233.

(c) Emergency transfers of committed persons. As provided by ORS 426.233, the director may transfer a committed person, who is on trial visit, to a hospital or nonhospital facility approved by the Division when the director has probable cause to believe the person is dangerous to self or others or unable to provide for basic personal needs and is not receiving the care that is necessary for health and safety, and is in need of care, custody or treatment for mental illness. Upon the recommendation of the investigator, the director shall request the court to revoke the person’s trial visit or recertify the person for continued commitment at a more restrictive facility as provided by ORS 426.275.

(4) Authority to retake persons. A Class 1 or Class 2 facility shall immediately notify a peace officer and the Division of any person who has left the facility without lawful authority and shall immediately request the assistance of a peace officer(s) in retaking and returning the person to a Division-approved hospital or facility. The director shall show the peace officer a copy of the order of commitment.

Stat. Auth.: ORS 413.042, 426.060, 426.223, 426.233, 426.273, 426.275 & 426.278
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0110

309-033-0310

Recertification for Continued Commitment

(1) Recertification for continued commitment of persons placed in a state hospital:

(a) After consulting with the director of the person’s county of residence, the superintendent shall issue a recertification to:

(A) The person whose 180 day period of commitment is due to expire, if the person is still mentally ill and in need of further treatment; and

(B) The director.

(b) The superintendent shall notify the court concerning:

(A) The date the recertification was issued to the person; and

(B) Whether the person protests, within 14 days of the issuance of the recertification, to continued commitment.

(2) Recertification for continued commitment of persons placed in a community hospital or nonhospital facility:

(a) After consulting with the director of the person’s county of residence, the director shall issue a recertification to:

(A) The person whose 180 day period of commitment is due to expire, if the person is still mentally ill and in need of further treatment; and

(B) The director of the person’s county of residence.

(b) The director shall notify the court concerning:

(A) The date recertification was issued to the person; and

(B) Whether the person protests continued commitment, within 14 days of the issuance of the recertification.

(3) Documentation of recertification for continued commitment in the clinical record. The director or the superintendent making the recertification shall include in the clinical record:

(a) The date and time the director’s approval of continued commitment was obtained prior to the recertification being issued to the person;

(b) The date and time the recertification was issued to the persons;

(c) A copy of the recertification issued to the person;

(d) Concerning the notification to the court of the date the recertification was issued to the person:

(A) The date and time that the court was notified of the issuance of the recertification to the person; and

(B) A copy of the notification.

(e) Concerning the notification to the court of whether the person protests continued commitment, within 14 days of the issuance of the recertification:

(A) The date and time that the court was notified of whether the person protests; and

(B) A copy of the notification to the court whether the person protests.

(f) If an examination is requested by the person:

(A) The name of the psychiatrist or the certified mental health examiner ordered by the court to conduct the examination;

(B) The date that the examination was conducted; and

(C) A copy of the examination report sent to the court.

(g) If the court orders continued commitment, a copy of the order continuing the commitment; and

(h) If the court orders the release of the person:

(A) A copy of the order requiring release;

(B) If the person consents to services upon discharge, a copy of an aftercare plan signed by the person and the name of the case manager responsible for arranging outpatient services; or

(C) If the person refuses services upon discharge, a statement signed by the person indicating the person’s refusal of outpatient services; and

(D) The date and time the person was released from the facility.

Stat. Auth.: ORS 413.042, 426.301, 426.307 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0120

309-033-0320

Revocation of Conditional Release, Outpatient Commitment or Trial Visit

(1) Conditional release. A caregiver appointed by the court to care for a committed person on conditional release is responsible for reporting to the court any violation of the conditions of placement. If a person on conditional release, whose conditions of placement include any service agreed to be provided by a CMHP, violates the conditions of conditional release, the director shall include in the clinical record a revocation report which documents the following:

(a) The person’s noncompliance with those conditions of placement that include services provided by the CMHP;

(b) Efforts by the CMHP to inform the caregiver of the noncompliance and the caregiver’s response to these efforts;

(c) Requests by the caregiver for the CMHP to assist in obtaining compliance from the committed person, or in notifying the court of the person’s failure to comply with the conditions of placement, and the CMHP response to the requests for assistance;

(d) Documentation of the disposition made by the court, if the caregiver submits notification to the court; and

(e) The date the person was transported to an inpatient facility, and the name of the facility, if appropriate.

(2) Outpatient commitment and trial visit. The director is responsible for reporting to the court any violation of the conditions of placement for persons on outpatient commitment (including community inpatient or outpatient treatment) or trial visit. For persons on outpatient commitment or trial visit, the director shall include in the clinical record a revocation report which includes the following:

(a) Documentation of the person’s noncompliance with the conditions of placement;

(b) Documentation of efforts from all parties attempting to obtain compliance from the committed person and the response of the person to these efforts;

(c) A copy of the notification to the court of the person’s failure to comply with the conditions of placement;

(d) Documentation of the disposition made by the court;

(e) Documentation of the distribution of any modified conditions of placement or disposition placing the person in inpatient treatment to all parties originally receiving copies of the conditions of placement; and

(f) Date the person was transported to an inpatient facility, and the name of the facility, if appropriate.

Stat. Auth.: ORS 413.042 & 426.275
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0130

309-033-0330

Discharge of Committed Persons, Who Are Placed in the Community, from Commitment Status

(1) Only director of county of placement may discharge. Only the director of the county of placement may change the commitment status of a committed person placed in a community hospital or other community facility:

(a) The director shall discharge a person from commitment when:

(A) Release from treating facility. The director believes the committed person is no longer a mentally ill person as defined in ORS 426.005, and the person is to be released from the treating facility.

(B) Transfer to voluntary status. The director believes it is in the best interests of the person to transfer a committed person to voluntary status, but the person is to remain at the treating facility.

(b) The director shall discharge a person from commitment by notifying the last committing court and the court of residence, pursuant to the provisions of ORS 426.300.

(2) Discharge required unless new assignment and placement made. The director of the county of commitment shall discharge a person from commitment when a committed person is discharged from a hospital, nonhospital or residential facility, or an outpatient treatment program where the person has been assigned and placed unless the director of the county of commitment assigns and places the person with another provider of service as provided by OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division.

(3) Persons required to notify director prior to discharge. The following persons shall notify the director of the county of commitment 48 hours before discharging a person from a hospital, nonhospital or residential facility, or outpatient treatment:

(a) If the committed person is in a state hospital, the superintendent or designee shall notify the director;

(b) If the committed person is in a hospital serving as a regional acute care hospital or a private hospital, the treating physician shall notify the director;

(c) If the committed person is in a nonhospital or residential facility, the administrator of the facility shall notify the director;

(d) If the person is on trial visit, outpatient commitment or conditional release receiving outpatient treatment, and is not living in a nonhospital or residential facility, the administrator of the program where the person is receiving outpatient treatment shall notify the director.

(4) Procedures for discharge. The director shall give written notice to the committed person within thirty days after the commitment was terminated. The notice shall state the date the commitment expired or was terminated. A copy of the notice shall be kept in the person’s clinical record.

Stat. Auth.: ORS 413.042 & 426.300
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0140

309-033-0340

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Office.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovern-mental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0150
Standards for Transportation and Transfer of Persons in Custody or on Diversion

309-033-0400

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures relating to the involuntary commitment of mentally ill persons.

(2) Statutory authority. These rules are authorized by ORS 426.395.041, and 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0000

309-033-0410

Definitions

(1) “Administrator- means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator- has the same meaning as “director of the facility- as that term is defined in ORS 426.005. Whenever “administrator- appears it means the administrator or designee.

(2) “CMHP- means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(3) “Community hospital- means any hospital that is not a state hospital.

(4) “Court- means the circuit court acting pursuant to ORS Chapter 426.

(5) “Custody- means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer or approved secure transport provider pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer or approved secure transport provider at the direction of the director pursuant to ORS 426.233;

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(6) “Director- means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director- also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer or approved secure transport provider to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(7) “Director of the county of commitment- means the director for the county where the person is committed.

(8) “Division- means the Addictions and Mental Health Division of the Oregon Health Authority.

(9) “Mechanical Restraint- is any object or apparatus, device or contraption applied or affixed to the person to limit movement, and includes, but is not limited to handcuffs, leg irons, soft restraints or Posey Strait Jacket.

(10) “Secure transport provider- means any service which uses privately or publicly owned motor vehicles, other than city, county or state police, to transport Persons in Custody or on Diversion to an Approved Holding Hospital or NonHospital Facility.

(11) “State hospital- means Oregon State Hospital in Salem and Portland, and Eastern Oregon Psychiatric Center in Pendleton.

(12) “Superintendent- means the chief executive officer of a state hospital, or designee, or a person authorized by the superintendent to act in the superintendent’s capacity for the purpose of this rule.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0010; MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00

309-033-0420

Transportation and Transfer of Persons in Custody or On Diversion

(1) Notification of court. The director shall immediately inform the court of a transfer and the location of the person and of the time the person is admitted to a new hospital or nonhospital facility.

(2) Transfer of persons in custody or on diversion. The director may transfer a person who is in custody or on diversion only when:

(a) The director believes there is an approved facility available that can provide necessary care or treatment which is sufficient to meet the emergency psychiatric needs of the person;

(b) The facility is approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion, to provide care, custody and treatment of persons in custody or on diversion;

(c) The director has obtained the consent required by OAR 309-033-0420(3), Consent by Treating Physician and Receiving Physician or Director for Transfer Between Hospitals, through 309-033-0420(4), Consent by Treating Physician for Transfer from Nonhospital Facility to Hospital.

(3) Consent by treating physician and receiving physician or director for transfer between hospitals. If the transfer is from a hospital to another hospital or to a nonhospital facility, the director shall obtain the consent of the treating physician, and the receiving physician or the director of the nonhospital facility, prior to transferring the person:

(a) The treating physician shall give consent by writing in the person’s clinical record an order over the physician’s signature within 24 hours of giving verbal, telephonic or facsimile consent;

(b) The receiving physician at a hospital or the administrator of a nonhospital facility shall accept the transfer orally or telephonically, and shall document the acceptance in the clinical record of the person.

(4) Consent by treating physician for transfer from nonhospital facility to hospital. If the transfer is from a nonhospital facility to a hospital, the director shall obtain the consent of the receiving physician prior to transferring the person:

(a) The receiving physician shall give consent by writing in the person’s clinical record an order over the physician’s signature within 24 hours of giving verbal, telephonic or facsimile consent to admit the person to the hospital;

(b) The director shall provide the nonhospital facility written approval of the transfer within 24 hours of giving verbal, telephonic or facsimile approval of the transfer;

(c) The administrator of the nonhospital facility shall document the director’s verbal or telephonic approval and retain written approval of the transfer in the clinical record of the person.

(5) Consent by administrator for transfer between nonhospital facilities. If the transfer is from one nonhospital facility to another nonhospital facility, the director shall obtain the verbal, telephonic or facsimile consent of the administrator of the receiving nonhospital facility prior to transferring the person:

(a) The administrator of the receiving nonhospital facility shall consent to the transfer by documenting in the person’s clinical record the consent within 24 hours of giving verbal, telephonic or facsimile consent;

(b) The director shall provide the nonhospital facility written approval of the transfer within 24 hours of giving verbal, telephonic or facsimile approval of the transfer;

(c) The administrator of the sending nonhospital facility shall document the director’s verbal, telephonic or facsimile approval and retain written approval of the transfer in the clinical record of the person.

(6) Notice to person to be transferred. Except in cases of emergency, twenty-four hours before the transfer is to take place, the director shall provide a notice to the person to be transferred which includes:

(a) Transfer date and time;

(b) A statement that the person may use the grievance procedure; and a brief description of how to initiate a grievance; and

(c) Justification for the transfer.

Stat. Auth.: ORS 413.042, 426.060 & 426.235
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0030

309-033-0430

Transportation of a Committed Person to a State Hospital, Community Hospital or Nonhospital Facility

(1) Transportation of a committed person to a state hospital, community hospital or nonhospital facility. The director of the county of commitment shall arrange for the transportation of committed persons to the hospital or nonhospital facility:

(a) Only committed persons who have received prior approval for admission by the superintendent may be transported to a state hospital;

(b) A guardian, friend or relative may transport the committed person to the designated facility if all the following are met:

(A) The guardian, friend, or relative requests to transport the person to the designated facility prior to or at the time of the commitment hearing;

(B) The committing judge at the commitment hearing determines that the means of transportation would not be detrimental to the welfare of the mentally ill person or to the public.

(2) Medically unstable committed persons. The costs of providing care, custody and treatment for a committed person who is unable to be transported or cannot be admitted to a state hospital because of medical necessity shall be paid by the county of residence from funds provided it by the Division for the provision of mental health services. The hospital or other facility shall charge to and collect from the county of residence only after the hospital or other facility has charged to and collected from the person, third party payers or agencies otherwise legally responsible for the costs of emergency care, custody and treatment, as it would for any other patient.

(3) Transfer of a committed person to another hospital. The administrator of a facility caring for a committed person may transfer the person only with the recommendation of the director of the county of residence and the approval of the administrator of the receiving facility.

(4) Transfer of a committed person to voluntary status or discharge for commitment. The superintendent of a state hospital, on his/her own initiative or on the request of the committed person, shall transfer the committed person to voluntary status if the superintendent believes with reasonable medical certainty that the person will pursue voluntary treatment. The superintendent of a state hospital may discharge the person from commitment when the person meets the criteria for discharge in OAR 309-031-0210, Criteria for Admission to and Discharge from State or Other Adult Inpatient Psychiatric Hospitals:

(a) The administrator of a community hospital or nonhospital facility, other than a state hospital, caring for the committed person, in consultation with the director, may transfer the person to voluntary status or discharge the person from commitment;

(b) When a person is transferred to voluntary status, the superintendent or administrator shall notify the director and the court of the county of current commitment of such action within 72 hours;

(c) Any committed person transferred to voluntary status shall be discharged from the treating facility, at the request of the person or his legal guardian, within 72 hours of the request unless the person meets the criteria for prehearing custody and is placed in custody, thus initiating the commitment process.

(5) Grievance of transfer. The director and the superintendent shall have written procedures for resolving grievances about the transfer of committed persons from one facility to another. The director or the superintendent shall suspend the transfer of the person, until the grievance procedure is completed, unless immediate transfer is necessary for health or safety, upon the written or verbal protest of one of the following persons:

(a) The person being transferred;

(b) The legal guardian of the person being transferred.

Stat. Auth.: ORS 413.042, 426.150
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0040

309-033-0432

Standards for the Approval of a Secure Transport Provider to Transport a Person in Custody or On Diversion to an Approved Holding Hospital or Nonhospital Facility

(1) Approved Secure transport provider. A Secure transport provider must be approved by the Division under this rule in order to transport a person pursuant to the provisions of ORS 426.228, 426.231, and 426.233. A Secure transport provider approved under this rule may transport the person only to a hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion.

(2) Application for approval. A Secure transport provider shall submit a letter of application to the Division. If approved, a certificate of approval will be issued to the Secure transport provider to provide such services. This approval shall be renewed every two years subject to the application of the Secure transport provider and review by the Division.

(3) Requirements for approval include all of the following:

(a) Secure transport providers must comply with the requirements OAR 309-033-0435, Client Rights with Regards to a Secure Transport Provider, and OAR 309-033-0437, Mechanical Restraint by a Secure Transport Provider.

(b) The governing body of the county in which the secure transport is to be used shall submit a letter formally authorizing the Secure transport provider to Transport Persons in Custody or on Diversion.

(c) The director in the county in which the secure transport is to be used shall submit a letter of recommendation for approval to the Division on behalf of the Secure transport provider.

(d) The vehicles of the Secure transport provider must:

(A) Have a secured rear seat in an area separated from the driver:

(B) Have a safety shield that prohibits physical contact with the driver;

(C) Have plexiglass or secured window guards covering any windows in the secured area;

(D) Be washable and nonbreakable in the secured area;

(E) Be absent of inside locks or door handles in the secured area;

(F) Have wrist and ankle restraints (preferably soft non-metal) for use when necessary to control violent or overt behavior;

(G) Be absent of any foreign item(s) or instrument(s) in the secured area that may be used by the client to inflict harm to self, attendant or person accompanying client;

(H) Have an operating cellular phone or other communication device for use in transit;

(I) Have adequate ventilation/heating appropriate to the secured seating.

Stat. Auth.: ORS 413.042, 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00

309-033-0435

Client Rights with Regards to a Secure Transport Provider

(1) A secure transport provider shall maintain written policies and procedures with regard to client rights. The policies and procedures must assure that a client has the right to be treated with consideration, respect, and full recognition of human dignity and individuality. These rights are in addition to any other rights provided for in law.

(2) The client care policies and procedures must include but are not limited to:

(a) Considerate and respectful care;

(b) Reasonable privacy concerning a client’s transportation and care;

(c) Confidentiality of all communications and records relating to client transportation and care except to the extent otherwise required by law;

(d) An environment in the secure transport that is free from recognized hazards.

(3) A secure transport provider shall keep a record of any formal complaint or report of misconduct made against an employee. The record must contain a copy of the complaint or report or a detailed written summary of the allegation. A provider shall investigate the accuracy of the complaint, report, or allegation and shall include a summary of the investigation and resulting action taken, if any, in the record. These records must be included in the driver’s file with a copy provided to the Division.

(4) A secure transport provider shall report any client abuse in accordance with OAR 407-045-0250 through 407-045-0370.

(5) A secure transport provider shall obtain criminal offender information on all employees who are Transporting a Person in Custody or on Diversion in accordance with OAR chapter 407, division 007.

Stat. Auth.: ORS 413.042

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00; MHS 5-2007, f. & cert. ef. 5-25-07]

309-033-0437

Mechanical Restraint by a Secure Transport Provider

(1) A mechanical restraint may be used by secure transport providers in emergency situations to prevent a person from inflicting immediate and serious harm to self or others, or property. A mechanical restraint shall only be used for health and safety reasons. Mechanical restraint that results in injury to the person requires immediate written notification to the Division.

(2) Checking a person in a mechanical restraint:

(a) The provider shall monitor the client’s need for adequate circulation.

(b) Staff shall document that the client was checked and appropriate attention paid to the person’s needs.

(3) A Secure transport provider shall have adequately trained employees who are transporting a person in custody or on diversion.

(a) The employee shall participate in four hours of training annually. The training curriculum shall include: the management of aggressive behavior, the proper application of mechanical restraint and standards for the proper use of mechanical restraint.

(b) The employee shall be certified in cardiopulmonary resuscitation.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00

309-033-0440

Variance

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042, 426.060 & 426.235
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0050; MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; Administrative correction 11-17-00
Standards for the Approval of Facilities that Provide Case, Custody and Treatment
to Committed Persons in Custody or On Diversion

309-033-0500

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards for the approval of facilities that provide involuntary care, custody and treatment to persons in protective custody, in custody and on diversion.

(2) Statutory authority. These rules are authorized by ORS 426.395, and 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042 & 426.060 – 426.500
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0000

309-033-0510

Definitions

(1) “Administrator- means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator- has the same meaning as “director of the facility- as that term is defined in ORS 426.005. Whenever “administrator- appears it means the administrator or designee.

(2) “Assistant Administrator- means the Assistant Administrator of Addictions and Mental Health Division.

(3) “Clinical record- means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Service Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP- means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and

alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community hospital- means any hospital that is not a state hospital.

(6) “Court- means the circuit court acting pursuant to ORS Chapter 426.

(7) “Custody- means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233;

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(8) “Designee- means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(9) “Director- means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director- also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(10) “Diversion- means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237.

(11) “Division- means the Addictions and Mental Health Division of the Oregon Health Authority.

(12) “QMHP- means a qualified mental health professional that meets the following minimum qualifications:

(a) Psychiatrist licensed to practice in the State of Oregon;

(b) Physician licensed to practice in the State of Oregon;

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0010

309-033-0520

Classes of Facility that Provide Care, Custody or Treatment to Committed Persons or to Persons In Custody or On Diversion

(1) Division to assign classification. The Division shall assign a classification to a facility approved to serve a person committed to the Division under ORS 426.130, or a person in custody pursuant to ORS 426.232, 426.233, or on diversion pursuant to 426.237.

(2) Class 1. A Class 1 facility is a facility that is approved under applicable administrative rules to be locked to prevent a person from leaving the facility, to use seclusion and restraint, and to involuntarily administer psychiatric medication. This class of facility includes:

(a) A state hospital;

(b) A hospital, regional acute psychiatric care facility or other nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion;

(c) A facility which, in the opinion of the Division, restricts the liberty of a person to substantially the same degree as other facilities in this class.

(3) Class 2. A Class 2 facility is a facility that is approved under applicable administrative rules to be locked to prevent a person from leaving the facility. This class of facility includes:

(a) A secure residential facility that is approved under OAR 309-035-0100 through 309-035-0190, Residential Care Facilities for Mentally or Emotionally Disturbed Persons, and that is approved by the Division to be locked to prevent a person from leaving the facility;

(b) A facility which, in the opinion of the Division, restricts the liberty of a person to substantially the same degree as other facilities in this class.

(4) Class 3. A Class 3 facility is a residential facility that is approved under OAR 309-035-0100 through 0309-035-0190, Residential Care Facilities for Mentally or Emotionally Disturbed Persons. A Class 3 facility shall not lock its doors to prevent a person from leaving the facility.

Stat. Auth.: ORS 413.042 & 426.238
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0030

309-033-0530

Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons In Custody and On Diversion

This section establishes rules for approval of hospital and nonhospital facilities which provide service to a committed person or to a person in custody or on diversion.

(1) Approved hospitals and other facilities. Only hospitals and nonhospital facilities, approved by the Division under this rule, shall provide care and treatment services for committed persons or for persons in custody or on diversion.

(2) Application for approval. Approval of hospitals or nonhospital facilities shall be accomplished by submission of a letter of application. If approved, a Certificate of Approval will be issued to the hospital or nonhospital facility to provide such services. This approval shall be reviewed on a biennial basis subject to application of the hospital or other facility and/or review by the Division.

(3) Requirements for approval. In undertaking review of the hospital or nonhospital facility for approval, the Division shall be satisfied that the hospital or nonhospital facility meets one of the following requirements:

(a) Approval to provide seclusion and restraint considered approval to provide services to committed persons and to persons in custody and on diversion. The Division shall approve, without further requirement, hospitals and nonhospital facilities currently approved under OAR 309-033-0700 through 309-033-0740, Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(b) Requirements for facilities not approved to provide seclusion and restraint. The Division shall approve a nonhospital facility to serve committed persons and persons in custody and on diversion if the nonhospital facility is certified as a secure residential facility under Division rules and the nonhospital facility has the following:

(A) Written policies and procedures in place which assure that:

(i) The facility shall not admit a person who may require seclusion or physical restraint.

(ii) A person who develops the need for seclusion and restraint is immediately removed to a hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(iii) Each person admitted to the facility has a physician who is responsible for treating the person during the person’s stay at the facility and who examines the person within 24 hours of the person’s admission to the facility.

(iv) A staff person shall provide direct care for consumers only when that staff person is trained in the curriculum approved by the psychiatrist or psychiatric nurse practitioner. The staff shall receive the training within the last six months prior to providing direct consumer care.

(v) A staff person shall participate in the training approved by the psychiatrist or psychiatric nurse practitioner quarterly.

(B) A psychiatrist or a licensed psychiatric nurse practitioner, who is employed by the facility or has a contract with the facility, to provide medical oversight of admission policies and procedures, and staff training.

(C) A staff training curriculum which is approved by the psychiatrist or nurse practitioner and includes:

(i) Criteria for the admission of a person who can safely be served by the nonhospital facility;

(ii) Recognition of indicators of violence or assault and criteria for the transfer of person to a more secure facility;

(iii) Indicators of medical problems, identification of medication side effects, and indicators of medical problems and medical crisis; and

(iv) Management of aggressive behavior and de-escalation techniques.

(D) Two qualified mental health associates who are available on-site 24 hours-a-day, seven days-a-week.

(E) Alarmed doors and windows which have been approved by the Division.

(F) A written agreement with a law enforcement agency to respond to emergencies that provides:

(i) Emergency response time within 15 minutes of the nonhospital facility’s request.

(ii) Agreement by the law enforcement agency to retake a person who elopes and to return the person to the nonhospital facility or remove the person to a hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion, as directed by the administrator of the nonhospital facility.

(G) Documentation of fire marshal approval to operate as a secure facility.

Stat. Auth.: ORS 413.042, 426.228, 426.232, 426.233 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0040

309-033-0540

Administrative Requirements for Hospitals and Nonhospital Facilities Approved to Provide Services to Persons In Custody

(1) Written policies. Each hospital or nonhospital facility shall have written policies concerning the care, custody, and treatment of persons in custody or on diversion. These policies shall be written to provide for the comfort and safety of the person being provided care and for the safety of the facility staff providing care to that person. These policies shall detail staff responsibilities, person’s rights, and emergency procedures. All staff involved in the care of these persons shall be fully familiar with these policies and procedures. These policies shall be reviewed as part of the Division’s approval process.

(2) Warning. Each hospital or nonhospital facility shall:

(a) Have a physician, nurse or QMHP give the person the following warning:

“You are being held in this hospital because someone is concerned that you may hurt yourself or other people. Anything the staff of this hospital observes you do or say while you are in custody here may be used as evidence in a court of law to determine whether you should be committed as a mentally ill person. You have a right to legal counsel. If you cannot afford an attorney one will be provided for you by the court.-

(b) Have the warning given at the time of admission and at times when it is determined that the person will reasonably understand the notice, and as often as it is determined necessary to assure that the person has been given an opportunity to be aware of the notice.

(c) Have the warning given to the person in writing, as required by ORS 426.123. An attempt shall be made to have the person sign the written warning. A copy of the signed written warning shall be given to the person and the original shall be kept in the clinical record. The person’s inability to sign the written warning or refusal to sign the written warning shall be documented on the written warning below the place where the person’s signature would be normally found, clearly stating the reasons the signature was not obtained. The written warning shall include a place where the person, by making a mark, may request legal counsel.

(3) Notification of next of kin. If the person consents, a physician, nurse or QMHP at a hospital shall make every effort to notify the person’s next of kin of the location and condition of the person as required under ORS 426.234.

(4) Notification of the court of hospital hold. The admitting physician, if the person is at a hospital, shall immediately notify the circuit court in writing. The admitting physician shall also immediately notify the director in the county where the hospital is located so that an investigation can be conducted.

(5) Notification of the court of nonhospital hold. The director, if the person is at a nonhospital facility, shall notify, in writing, the circuit court in the county where the person was taken into custody.

(6) Log. Each hospital or nonhospital facility shall maintain a log of persons in custody that includes: name, date of birth, date of admission, type of admission and a notation of the use of restraints.

(7) Posted warning and rights. Each hospital or nonhospital facility shall post a copy of the person’s rights in the holding room behind protective unbreakable plastic or in another location clearly visible from the holding room which, at a minimum, states:

(a) The warning described in OAR 309-033-0540;

(b) The person’s right to be free from electro-shock therapy or unduly hazardous procedures.

(8) Clinical records. Each hospital or nonhospital facility shall maintain a clinical record which accurately documents the care, custody and treatment of a person in custody. These records shall include:

(a) A copy of the hold form which documents the reasons for the hold, including specific behaviors which indicate the person:

(A) Is dangerous to self or another person; and

(B) Is in need of immediate care, custody or treatment for mental illness.

(b) Documentation that the warning described in OAR 309-033-0540 has been given to the person.

(c) Documentation of the potential effects and the observed effects of any medication administered which may substantially affect the person to prepare for or function effectively at the commitment hearing, signed by the treating physician.

(d) A report of physical examination and relevant laboratory tests.

(e) Daily medical progress notes.

(f) Twenty-four hour nursing notes.

(g) Documentation, signed by the treating physician, of each use of any mechanical restraints and the specific reasons which justify the use.

(h) Documentation of the psychiatric history which, whenever possible, shall include:

(A) History of present illness, including specific prodromal symptoms;

(B) Medical history;

(C) Family history;

(D) Past psychiatric history;

(E) Substance use and abuse history;

(F) History of legal difficulties; and

(G) Social history including current support system.

(i) A report of mental status.

(j) A diagnostic impression.

(k) A treatment plan.

(9) Access to clothing before release of persons in custody. Each hospital or nonhospital facility shall allow the person in custody to have access to his/her clothing before being released to attend the commitment hearing.

Stat. Auth.: ORS 413.042, 426.123, 426.232, 426.233, 426.234 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0050

309-033-0550

Standards for the Approval of Hospitals Detaining Persons In Custody Pending Transport to an Approved Holding Hospital or Nonhospital Facility

(1) Approved hospitals. Only hospitals approved by the Division under this rule may detain a person pending transport pursuant to the provisions of ORS 426.231. A hospital approved under this rule may transport the person only to a hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion. Hospitals approved under OAR 309-033-0530 are also approved under this rule to detain a person pending transport and may transport a person to another hospital or nonhospital facility approved under OAR 309-033-0530.

(2) Application for approval. Approval of hospitals shall be accomplished by submission of a letter of application in accordance with administrative rules on letters of approval. If approved, a certificate of approval will be issued to the hospital to provide such services. This approval shall be renewed on a biennial basis subject to the application of the hospital or review by the Division.

(3) Requirements for approval. The director in the county in which the hospital is located shall submit a letter of recommendation for approval on behalf of the hospital. The letter of recommendation shall clearly state that the director and the hospital have a written agreement which includes the following:

(a) The procedures to be followed when a person is detained or transported to another hospital or nonhospital facility, with the parties responsible for performing the procedures clearly identified. The procedures shall state whether or not the hospital is required to give notice to the director prior to the release of the person.

(b) The party or parties responsible for transporting the person to another hospital or nonhospital facility and the means by which such transportation is initiated and authorized.

(c) The services to be provided by the hospital when a person is detained and transported to another hospital or nonhospital, and the payment the hospital is to receive for these services.

(d) The hospital shall have a room which meets OAR 309-033-0720, Application and Requirements for Approval to Provide Seclusion and Restraint, or shall provide an attendant to provide continuous face-to-face monitoring of the person.

(4) Responsibilities of the physician. The physician shall complete a face-to-face examination of the person. Once the physician determines that the person is dangerous to self or any other person and in need of emergency care or treatment for mental illness, the physician shall:

(a) Assure the detention of the person in safe and humane quarters for no longer than 12 hours;

(b) Assure that the person is monitored face-to-face every 15 minutes;

(c) Consult with a physician who has admitting privileges at a receiving hospital or nonhospital facility approved by the Division to determine that the receiving physician:

(A) Agrees that the person appears to be dangerous to self or any other person; and

(B) Consents to receive the person for further evaluation for involuntary emergency care and treatment for mental illness.

(d) If the person is to be sent to the receiving hospital, complete a written statement that states:

(A) The physician has examined the person within the preceding 12 hours;

(B) The reasons the physician has found the person to be dangerous to self or any other person and is in need of emergency care or treatment for mental illness; and

(C) The name of the admitting physician at the receiving hospital who has agreed to transporting the person for further evaluation and possible admission.

(e) Retain a copy of the written statement in the person’s clinical record. The original written statement shall accompany the person to the receiving hospital and shall serve as authorization for transport.

(5) Release when person is no longer dangerous. If the physician at the hospital where the person is detained and is awaiting transport believes the person is no longer dangerous to self or any other person, then the physician shall release the person as soon as possible. If the physician cannot locate a receiving hospital where a physician agrees to receive the person for evaluation, then the person shall be released within twelve hours of the time the person was originally detained.

Stat. Auth.: ORS 413.042 & 426.231
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0060

309-033-0560

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0070

Standards for Obtaining Informed Consent to Treatment from a Person and the Administration of Significant Procedures without the Informed Consent
of a Committed Person at Community Hospitals, Nonhospital Facilities, and Residential Facilities Approved by the Division

309-033-0600

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures for community hospitals, nonhospital facilities and residential facilities relating to obtaining informed consent to treatment from a committed person, and for the administration of significant procedures without obtaining the informed consent of a committed person.

(2) Statutory authority. These rules are authorized by ORS 426.385 and 430.041 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0000

309-033-0610

Definitions

(1) “Administrator- means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator- has the same meaning as “director of the facility- as that term is defined in ORS 426.005(1)(a). Whenever “administrator- appears it means the administrator or designee.

(2) “Assistant Administrator- means the Assistant Administrator of the Addictions and Mental Health Division.

(3) “Clinical record- means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP- means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community hospital- means any hospital that is not a state hospital.

(6) “Court- means the circuit court acting pursuant to ORS Chapter 426.

(7) “Custody- means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233(1);

(c) A health care facility licensed under ORS Chapter 431 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(8) “Designee- means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(9) “Director- means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director- also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(10) “Division- means the Addictions and Mental Health Division of the Oregon Health Authority.

(11) “Legally incapacitated person- means a person who has been found by the court to be unable to give informed consent to medical treatment and the court has appointed a guardian to make such decisions on the person’s behalf pursuant to ORS 126.127.

(12) “Material risk- means the risk may have a substantial adverse effect on the patient’s psychological and/or physical health. Tardive dyskinesia is a material risk of neuroleptic medication.

(13) “Nurse- means a registered nurse or a psychiatric nurse practitioner licensed by the Oregon Board of Nursing, but does not include a licensed practical nurse or a certified nurse assistant.

(14) “Person- means a consumer of mental health services committed to the Division who is admitted to a community hospital, nonhospital facility or residential facility for care, custody or treatment of mental illness.

(15) “Psychiatrist- means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(16) “Psychologist- means a clinical psychologist licensed by the Oregon Board of Psychologist Examiners.

(17) “QMHP- means a qualified mental health professional that meets the following minimum qualifications:

(a) Psychiatrist licensed to practice in the State of Oregon;

(b) Physician licensed to practice in the State of Oregon;

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

(18) “Significant procedure- means a diagnostic or treatment modality which poses a material risk of substantial pain or harm to the patient or resident such as, but not limited to, psychotropic medication and electro-convulsive therapy.

(19) “Superintendent- means the chief executive officer of a state hospital, or designee, or a person authorized by the superintendent to act in the superintendent’s capacity for the purpose of this rule.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0010

309-033-0620

Obtaining Informed Consent to Treatment From a Person and the Administration of Significant Procedures Without the Informed Consent of a Committed Person

(1) Basic rule for obtaining informed consent to treatment from a person. A person or a guardian, on behalf of a legally incapacitated committed person, may refuse any significant procedure and may withdraw at any time consent previously given to any significant procedure.

(2) Documentation of withdrawal of consent. Any refusal or withdrawal or withholding of consent shall be documented in the person’s record.

(3) Exceptions to obtaining informed consent from a person. Personnel of a facility shall not administer a significant procedure to a committed person unless informed consent is obtained from or on behalf of the person in the manner prescribed in OAR 309-033-0620, except as follows:

(a) Administration of significant procedures without informed consent in emergencies (OAR 309-033-0630); and

(b) Involuntary administration of significant procedures with good cause to persons committed to the Division (OAR 309-033-0640).

(4) Capacity of the committed person. Unless adjudicated legally incapacitated for all purposes or for the specific purpose of making treatment decisions, a person shall be presumed competent to consent to, or refuse, withhold, or withdraw consent to significant procedures.

(a) A physician shall deem a person unable to consent to or refuse, withhold, or withdraw consent to a significant procedure only if the person currently demonstrates an inability to compre-

hend and weigh the risks and benefits of the proposed procedure, alternative procedures, or no treatment at all or other information disclosed pursuant to OAR 309-032-0620. Such inability is to be documented in the person’s record and supported by documented statement or behavior of the person.

(b) A person committed to the Division shall not be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure merely by reason of one or more of the following facts:

(A) That the person has been involuntarily committed to the Division;

(B) That the person has been diagnosed as mentally ill;

(C) That the person has disagreed or now disagrees with the treating physician’s diagnosis; and

(D) That the person has disagreed or now disagrees with the treating physician’s recommendation regarding treatment.

(c) If a court has determined that a committed person is legally incapacitated with regard to medical treatment decisions, then consent shall be sought from the legal guardian.

(5) Procedures for obtaining informed consent and information to be given.

(a) The person from whom informed consent to a significant procedure is sought, as required by ORS 677.097, shall be given information regarding:

(A) The nature and seriousness of the committed person’s mental illness or condition;

(B) The purpose and method of the significant procedure, its intended outcome and the risks and benefits of the procedure and when neuroleptic medication is prescribed, that tardive dyskinesia is a risk;

(C) Any alternatives that are reasonably available and reasonably comparable in effectiveness; and

(D) Any additional information concerning the proposed significant procedure requested by the person.

(b) The physician intending to administer a significant procedure shall document in the person’s chart that the information required in OAR 309-033-0620 was explained and that the person or guardian of a legally incapacitated person or resident explicitly consented, refused, withheld or withdrew consent.

(6) Voluntary consent. Consent to a proposed significant procedure must be given voluntarily, free of any duress or coercion. Subject to the provisions of OAR 309-033-0640, Involuntary Administration of Significant Procedures to Committed Person with Good Cause, and 309-033-0260, Diversion from Commitment Hearing, the decision to refuse, withhold or withdraw consent previously given shall not result in the denial of any other benefit, privilege, or service solely on the basis of refusing withholding to or withdrawing consent. A voluntary person may be discharged from the facility if offered procedures are refused.

(7) Obtaining consent with respect to legally incapacitated persons. A facility may not administer a significant procedure to a legally incapacitated committed person without the consent of the guardian, except in the case of an emergency.

(8) Reports of progress. The person or the guardian of a legally incapacitated person shall, upon request, be informed of the progress of the person during administration of the significant procedure.

(9) Right to appeal. A person has the right to appeal the application of any provision of these rules as provided in the grievance policies and procedures of the facility. If the committed person is legally incapacitated, the guardian has the right to appeal the application of any provision of these rules by using the grievance procedures.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0030

309-033-0625

Administration of Medication and Treatment without the Informed Consent of a Person in Custody

(1) Hospitals or Nonhospital Facilities Authorized. Only a physician at a hospital or nonhospital facility approved under OAR 309-033-0500 through 309-033-0560 may administer medication and treatment without the informed consent of a person in custody.

(2) What constitutes an emergency. The fact that a person is in custody under the provisions of ORS 426.232 or 426.233 shall not be the sole justification that an emergency exists. An emergency exists if in the opinion of the physician, and either a consulting physician or qualified mental health profession:

(a) Immediate action is required to preserve the life or physical health of the person and it is not practical to obtain informed consent as provided in OAR 309-033-0620; or

(b) Immediate action is required because the behavior of the person creates a substantial likelihood of immediate physical harm to the person, or others in the facility and it is not practical to obtain informed consent as provided in OAR 309-033-0620.

(3) Grounds for the administration of medication and treatment without informed consent. As provided by ORS 426.072(2)(c), a physician shall administer medication and treatment to a person in custody without obtaining prior informed consent, only in the following circumstances:

(a) If an emergency exists as described in OAR 309-033-0625, or

(b) If the physician, in consultation with another physician or qualified mental health profession, the person is unable to give informed consent as described in OAR 309-033-0620.

(4) Procedures and limitations for the administration of medication or treatment without consent. When administering medication or treatment without the informed consent of a person in custody, the physician shall:

(a) Administer medication and treatment in accordance with medical standards in the community;

(b) Not administer electro-shock therapy or unduly hazardous treatment as set forth in ORS 426.072;

(c) Document in the person’s record the specific nature of each emergency and the procedure that was used to deal with the emergency, or if the person is unable to give consent, document that fact in the person’s record;

(d) If the person is a minor or has a guardian, make a reasonable effort to contact the legal guardian prior to the administration of medication or treatment, but if efforts to contact the guardian are not successful, the physician may only administer medication or treatment in an emergency and shall notify the legal guardian as soon as possible, otherwise the physician shall not administer medication until consent is obtained from the guardian;

(e) Review the medication and treatment with the treatment team within a reasonable period of time after the medicine or treatment is administered without consent and, if applicable, administer medication or treatment designed to correct the behavior creating the emergency;

(f) Not continue to administer medication or treatment after the emergency has subsided or the person has regained the ability to consent to treatment, without obtaining the person’s informed consent; and

(g) Immediately proceed as provided in OAR 309-033-0600 through 309-033-0650 if the person who was in custody is committed and the physician believes the person remains unable to give consent and it is necessary to continue involuntary administration of medication or treatment; the physician may only continue the administration of medication or treatment under the provisions of 309-033-0625 for seven days pending a decision under 309-033-0640.

Stat. Auth.: ORS 413.042, 426.072, 426.231 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHS 5-2007, f. & cert. ef. 5-25-07

309-033-0630

Administration of Significant Procedures in Emergencies Without the Informed Consent of a Committed Person

(1) Hospitals or nonhospital facilities authorized. The following facilities that serve committed persons and which administer

significant procedures in emergencies, without obtaining informed consent, shall be subject to the provisions of 309-033-0630:

(a) A hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Approval of Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(b) A hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities To Provide Services to Committed Persons and to Persons in Custody or on Diversion.

(c) Secure residential facilities licensed by the Division, or licensed by the Aging and People with Disabilities Division (APD).

(d) Intermediate care facilities or enhanced care facilities licensed by the SPD.

(2) What constitutes an emergency. An emergency exists if in the opinion of the responsible physician or nurse:

(a) Immediate action is required to preserve the life or physical health of the committed person and it is impracticable to obtain informed consent as provided in OAR 309-033-0620; or

(b) Immediate action is required because the behavior of the committed person creates a substantial likelihood of immediate physical harm to the committed person or others in the facility and it is impracticable to obtain informed consent as provided in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given.

(3) Administering a significant procedure. If an emergency exists, the responsible physician or nurse may administer a significant procedure to a committed person without obtaining prior informed consent in the manner otherwise required by these rules, provided:

(a) The physician or designee shall document in the person’s clinical record the specific nature of each emergency and the procedure which was used to deal with the emergency.

(b) If the person is legally incapacitated, the physician or designee shall make reasonable effort to contact the legal guardian prior to the administration of the significant procedure. If contact is not possible, the physician or designee shall notify the legal guardian as soon as possible.

(c) Within a reasonable period of time after an emergency procedure is administered, the treatment team shall review the treatment and, if practicable, implement treatment designed to correct the behavior creating the emergency.

(d) The responsible physician or nurse shall not administer a significant procedure after the emergency situation has subsided, without obtaining informed consent.

Stat. Auth.: ORS 413.042 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0040

309-033-0640

Involuntary Administration of Significant Procedures to a Committed Person With Good Cause

(1) Hospitals or nonhospital facilities authorized. Only the following facilities that serve committed persons shall involuntarily administer significant procedures with good cause under the provisions of 309-033-0640:

(a) A hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Approval of Hospitals and Nonhospital Facilities To Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(b) A hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities To Provide Services to Committed Persons and to Persons in Custody or on Diversion.

(c) Secure residential facilities licensed by the Division or licensed by the APD.

(d) Intermediate care facilities or enhanced care facilities licensed by APD which have a variance from APD to provide involuntary medication.

(2) Good cause. Good cause exists to administer a significant procedure to a person committed to the Division without informed consent if, in the opinion of the treating physician, after consultation with the treatment team:

(a) The person is deemed unable pursuant to OAR 309-033-0620 to consent to, refuse, withhold or withdraw consent to the significant procedure.

(b) The proposed significant procedure will likely restore, or prevent deterioration of, the person’s mental or physical health, alleviate extreme suffering, or save or extend the person’s life.

(c) The proposed significant procedure is the most appropriate treatment for the person’s condition according to current clinical practice, and all other less intrusive procedures have been considered and all criteria and information set forth in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given, are considered.

(d) The treating physician has made a conscientious effort to obtain informed consent to the significant procedure from the person.

(3) Independent review. Prior to granting approval for the administration of a significant procedure for good cause to a person committed to the Division, the administrator shall obtain consultation and approval from an independent examining physician.

(a) The administrator shall maintain a list of independent examining physicians and shall seek consultation and approval from independent examining physicians selected on a rotating basis from the list. The independent examining physician shall:

(A) Be a psychiatrist;

(B) Not be in a position to provide primary or on-call care or treatment to the person who is subject of the independent review;

(C) Not be an employee of the facility;

(D) Have been subjected to review by medical staff executive committee as to qualifications to make such an examination; and

(E) Have read and received training from the medical staff regarding the meaning and the application of these rules.

(b) Prior to seeking consultation and approval of an examining physician, the administrator shall provide written notice to the committed person who is subject to the proposed significant procedure without the person’s consent.

(4) Independent physician activities. The physician selected to conduct the independent consultation shall:

(a) Review the person’s clinical record, including the records of efforts made to obtain the person’s informed consent;

(b) Personally examine the person;

(c) Interview the person to determine the extent of the need for the procedure and the nature of the person’s refusal, withholding, or withdrawal or inability to consent to the significant procedure;

(d) Consider additional information, if any, presented prior to or at the time of examination or interview as may be requested by the person; and

(e) Make a determination whether the factors required under these rules exist for the particular person or that one or more factors are not present. If the physician determines that the person does not have capacity to give consent to treatment, the physician shall review the proposed significant procedure. The physician shall make his/her determination of capacity, approval or disapproval of the proposed significant procedure to:

(A) The administrator; and

(B) The person to whom a significant procedure is proposed to be administered, with a copy being made part of the person’s record.

(5) Administrator determination. The administrator shall approve or disapprove of the administration of the significant procedure to a person committed to the Division based on good cause, provided:

(a) The administrator shall not approve the significant procedure and it shall not be performed when the independent examining physician found that one or more of the factors required by OAR 309-033-0640 were not present or otherwise disapproved of the procedure.

(b) Approval of the significant procedure shall terminate if there is a substantial increase in risk, as determined by a physician, of administering the significant procedure or at any time the person regains capacity to give informed consent/refusal. Approval of the significant procedure shall terminate at the end of the person’s commitment but in no case longer than 180 days. Disapproval shall be only so long as no substantial change occurs in the person’s condition.

(c) Written notice of the administrator’s determination shall be provided to the person and made part of the committed person’s clinical records.

(d) A copy of the independent examining physician’s report shall be made part of the committed person’s clinical record.

(6) Ninety-day right to review. The administrator shall adopt procedures which assure that the committed person may request independent review of the approval once every ninety days after the initial approval. Within 14 days of a verbal or written request from the committed person, the administrator shall initiate an independent review of the approval, as in OAR 309-033-0640.

(7) Transfer of approval. The administrator, or the superintendent of a State hospital, shall transfer the approval of the administration of a significant procedure when a committed person is transferred to another hospital or nonhospital facility described in OAR 309-033-0640.

(a) The administrator, or the superintendent, of the sending hospital or nonhospital facility shall transfer the approval by sending copies of all approval documents to the administrator of the receiving facility.

(b) The administrator, or the superintendent, of the receiving hospital or nonhospital facility shall assure that the treating physician at that facility reexamines the committed person and verifies that the need for the approval continues to exist as described in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given, and 309-033-0640, Good Cause. The receiving hospital or nonhospital facility may administer the significant procedure if the need for the procedure continues in accordance with OAR 309-033-0640, Involuntary Administration of Significant Procedures to a Committed Person with Good Cause.

(c) In no event shall the approval of a significant procedure continue beyond 180 days from the date of the original approval without reestablishing the need for the approval by following the procedures prescribed in OAR 309-033-0640, Involuntary Administration of Significant Procedures to Committed Persons with Good Cause.

(8) Administrative procedures.

(a) Utilization summary. Every four months the administrator shall make a summary of the use of OAR 309-033-0630 and 309-033-0640 that includes:

(A) Each type of proposed significant procedure for which consultation with an independent examining physician was sought;

(B) The number of times consultation was sought from a particular independent examining physician or disposition board for each type of proposed significant procedure;

(C) The number of times each independent examining physician approved and disapproved each type of proposed significant procedure; and

(D) The number of times the approved and disapproved each type of proposed significant procedure.

(b) Outside reviewer’s access to summaries. The administrator shall provide a copy of a utilization summary to the federally-mandated advocacy and protection agency for Oregon, which is appointed by the Governor and which currently is the Oregon Advocacy Center, and the Division. The Division may only distribute the report to any other person or organization authorized by the Division which in the opinion of the Assistant Administrator:

(A) Has substantial interest in the advocacy and protection of the rights of persons with mental illness; and

(B) Whose access to the summaries will provide a substantial and material benefit to the citizens of Oregon.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0050

309-033-0650

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0060

Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide
Seclusion and Restraint toCommitted Persons and to Persons in Custody or on Diversion

309-033-0700

Purpose and Scope

(1) This section establishes rules pursuant to ORS 426.072, 426.236, 426.228, 426.232, 426.233 and 426.234, 426.385 for certification of hospitals and facilities which provide care, custody, and treatment to committed persons and to persons in custody or on diversion.

(2) Seclusion or restraint may be used only for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or other individuals.

Stat. Auth.: ORS 413.042, 426.236, 426.385 & 430.021
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0000; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0710

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs in a nonhospital facility. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005(1)(a). Whenever “administrator” appears it means the administrator or his or her designee.

(2) “Authority- means the Oregon Health Authority (OHA).

(3) “Clinical Record” means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Service Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP” means the community mental health program which organizes all services for persons with mental disorders or substance use disorders, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community Hospital” means any hospital that is not a state hospital.

(6) “Council- means a regional acute care psychiatric facility organization with a mission statement and bylaws, comprised of facility representatives, consumers and family members. The council is advisory to the facility.

(7) “Court” means the circuit court acting pursuant to ORS Chapter 426.

(8) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233(1);

(b) A health care facility licensed under ORS Chapter 431 and certified by the Division, pursuant to 426.231;

(c) A state hospital pursuant to ORS 426.232;

(d) A community hospital pursuant to ORS 426.072 or 426.232; or

(e) A regional acute care psychiatric or non-hospital facility pursuant to ORS 426.072 or 426.233.

(9) “Director” means the community mental health program director who has been authorized by the local mental health authority to direct the CMHP.

(10) “Diversion” means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237(1)(b).

(11) “Division” means the Addictions and Mental Health (AMH) Division of the Oregon Health Authority (OHA).

(12) “Emergency- means, in the opinion of the treating physician, immediate action is required to preserve the life or physical health of a person, or because the behaviors of that person creates a substantial likelihood of immediate physical harm to self, or to others in the facility. The fact that a person is in custody under the provisions or ORS 426.072, 426.232 or 426.233 must not be the sole justification that an emergency exists.

(13) “Hospital or Facility- means the community hospital, regional acute care psychiatric facility, or non-hospital facility eligible for, or presently certified for, the use of seclusion or restraints to committed persons and persons in custody or on diversion.

(14) “NMI” means “Notice of Mental Illness- required, pursuant to ORS 426.070, to be submitted by any two persons, a county health officer or a magistrate to the director and thereafter submitted by the director to the court or, pursuant to 426.234, to be submitted by the physician or the director to the court. Pursuant to 426.070 and 426.234, the court commences proceedings pursuant to 426.070 to 426.130 upon receipt of the NMI.

(15) “Non-Hospital Facility- means any facility, other than a hospital, that is certified by the Authority to provide adequate security, psychiatric, nursing and other services to persons under ORS 426.232 or 426.233.

(16) “Nurse” means a registered nurse or a psychiatric nurse practitioner licensed by the Oregon Board of Nursing, but does not include a licensed practical nurse or a certified nurse assistant.

(17) “P.R.N.- (pro re nata) means that a medication or medical treatment has been ordered to be given as needed.

(18) “Patient Days- means the day of admission plus each additional day of stay, but not the day of discharge, unless it is also the day of admission.

(19) “Peace officer” means a sheriff, constable, marshal, municipal policeman, member of the Oregon State Police or investigator of the Criminal Justice Division of the Department of Justice and such other persons as may be designated by law.

(20) “Physician- means a person who holds a degree of Doctor of Medicine, Doctor of Osteopathy, or Doctor of Podiatric Medicine, if the context in which the term “physician- is used does not authorize or require the person to practice outside the scope of a license issued under ORS 677.805 through 677.840.

(21) “Physician Assistant- means a person who is licensed as such in accordance with ORS 677.265, 677.495, 677.505, 677.510, 677.515, 677.520, and 677.525.

(22) “Psychiatrist” means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(23) “Regional Acute Care Psychiatric Facility- means a facility certified by the Division to provide services for adults as described in OAR 309-033-0850 through 309-033-0890, and is operated in cooperation with a regional or local council. A regional acute care psychiatric facility must include 24 hour per day psychiatric, multi-disciplinary, inpatient or residential stabilization, care and treatment, for adults aged 18 or older with severe psychiatric disabilities in a designated region of the state. For the purpose of these rules, a state hospital is not a regional acute care psychiatric service. The goal of a regional acute care service is the stabilization, control and/or amelioration of acute dysfunctional symptoms or behaviors that result in the earliest possible return of the person to a less restrictive environment.

(24) “Restraint” means any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely. Restraint may be used only for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or others.

(25) “Seclusion- is the involuntary confinement of a patient alone in a room or area, from which the patient is physically prevented leaving. Seclusion may be used only for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or others.

(26) “State Hospital” means each campus of the Oregon State Hospital.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110, 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0010; MHS 5-2008, f. & cert. ef. 6-27-08; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0720

Application, Training and Minimum Staffing Requirements

(1) Only the following facilities shall be certified to use seclusion or restraint:

(a) Community hospitals licensed by the Public Health Division;

(b) Regional acute care facilities for adults certified by the Division pursuant to OAR 309-032-0850 through 309-032-0890; and

(c) Non-hospital facilities certified by the Division pursuant to OAR 309-033-0500 through 309-033-0550.

(2) Applications. Certification for the use of seclusion and restraints must be accomplished by submission of an application, and by the application process described in OAR 309-016. Continued certification is subject to hospital or facility reviews at frequencies determined by the Division.

(3) Requirements for Certification. In order to be certified for the use of seclusion and restraint, the Division must be satisfied that the hospital or facility meets the following requirements:

(a) Medical staffing. An adequate number of nurses, direct care staff, physicians, nurse practitioners or physician assistants shall be available at the hospital or facility, to provide emergency medical services which may be required. For hospitals, a letter from the chief of the medical staff or medical director of the hospital or facility, ensuring such availability, shall constitute satisfaction of this requirement. For non-hospital facilities, a written agreement with a local hospital, to provide such medical services may fulfill this requirement. When such an agreement is not possible, a written agreement with a local physician to provide such medical services may fulfill this requirement.

(b) Direct Care Staff Training. A staff person must be trained and able to demonstrate competency in the application of restraints and implementation of seclusion during the following intervals:

(A) A new staff person must be trained within the six months prior to providing direct patient care or as part of orientation; and

(B) Subsequently on a periodic basis consistent with the hospital or facility policy.

(c) Documentation in the staff personnel records must indicate the training and demonstration of competency were successfully completed.

(d) Trainer Qualifications. Individuals providing staff training must be qualified as evidenced by education, training, and experience in techniques used to address a person’s behaviors.

(e) Training Curriculum. The training required for direct care staff must include:

(A) Standards for the proper use of seclusion and restraints as described in OAR 309-033-0730;

(B) Identification of medication side effects;

(C) Indicators of medical problems and medical crisis;

(D) Techniques to identify staff and patient behaviors, events, and environmental factors that may trigger circumstances that require the use of a restraint or seclusion;

(E) The use of non-physical intervention skills;

(F) Choosing the least restrictive intervention based on an individualized assessment of the person’s medical, or behavioral status or condition;

(G) The safe application and use of all types of restraint or seclusion used in the hospital or facility, including treaining in how to recognize and respond to sign of physical or psychological distress;

(H) Clinical identification of specific behavioral changes that indicate that restraint or seclusion is no longer necessary;

(I) Monitoring the physical and psychological well-being of the patient who is restrained or secluded, including but not limited to respiratory and circulatory status, skin integrity, vital signs, and any special requirements specified by the hospital or facility policies and procedures; and

(J) The use of first aid techniques and certification in the use of cardio-pulmonary resuscitation, including periodic recertification.

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0030; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0725

Medical Services

(1) A physician must be available 24 hours per day, seven days per week to provide medical supervision of the services provided.

(a) In accordance with state law, those physicians authorized to order seclusion or restraint pursuant to the facility policy, must at minimum have a working knowledge of the hospital policy regarding the use of seclusion and restraint.

(b) A physician must examine a person admitted to the facility within 24 hours of the person’s admission.

(2) At least one registered nurse must be on duty at all times.

(3) The facility must maintain a personnel file for each patient care staff which includes a written job description; the minimum level of education or training required for the position; copies of applicable licenses, certifications, or degrees granted; annual performance appraisals; a biennial, individualized staff development plan signed by the staff; documentation of CPR training; documentation of annual training and certification in managing aggressive behavior, including seclusion and restraint; and other staff development and/or skill training received.

(4) Health Care Supervisor. The facility must appoint as Health Care Supervisor a physician, a psychiatric nurse practitioner, a master’s level registered nurse or a registered nurse certified by the American Nursing Association. The health care supervisor shall review and approve policies and procedures relating to:

(a) The reporting of indicators of medical problems to a physician; and

(b) Curriculum for the staff training, as identified in these rules.

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0727

Structural and Physical Requirements

(1) The hospital or other facility which provides care, custody and treatment for persons who are considered dangerous to themselves or others shall have available at least one room which meets the following requirements:

(a) The room must be of adequate size, not isolated from regular staff of the facility, and provided with an adequate locking device on all doors and windows.

(b) The door must open outward and contain a port of shatterproof glass or plastic through which the entire room may be viewed from outside and before entering.

(c) The room shall contain no protruding objects, such as doorknobs, towel or clothes bars, hooks, or racks. There shall be no exposed curtains, drapes, rods, or furniture, except a portable bed which can be removed, if necessary. In case of the removal of the bed frame, a fireproof mattress shall be placed on the floor. Beds which are securely fastened to the floor must have no protrusions such as bed posts or sharp corners.

(d) Any windows shall be made of unbreakable or shatterproof glass, or plastic. Non-shatterproof glass shall be protected by adequate detention type screening, such as Chamberlain Detention Screen.

(e) There shall be no exposed pipes or electrical wiring in the room. Electric outlets shall be permanently capped or covered with a metal shield which opens with a key. Ceiling and wall lights shall be recessed and covered with safety-type glass or unbreakable plastic. Any cover, cap or shield shall be secured by tamper-proof screws or other means approved by the Division.

(f) The room shall contain no combustible material, such as matches, lighters, cigarettes, etc. Smoking shall not be allowed in the room, except under direct supervision of staff.

(g) The room shall meet fire, safety, and health standards. If sprinklers are installed, they shall be recessed and covered with a fine mesh metal screening. If pop-down type, sprinklers must have breakaway strength of under 80 pounds. In lieu of sprinklers, a combined smoke and heat detector shall be used. Documentation of the breakaway strength of sprinklers must be on file at the facility.

(2) Bathroom requirements include:

(a) Adequate toilet and sanitary facilities shall be available.

(b) The bathroom shall contain no shower rods, shower curtains, window curtain rods, curtains, or towel rods, unless used only with direct staff supervision.

(c) The bathroom shall not lock from the inside and, if connected to the room, shall be locked when not in use.

(3) No sharp objects, such as razor blades, scissors, knives, nail files, etc., shall be available to the patient, except under direct staff supervision. No poisons or cleaning materials shall be kept in the room or in the bathroom available for the room.

Stat. Auth.: ORS 426.236, 426.385 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0730

Seclusion and Restraint Procedures

(1) Certified facilities shall not use seclusion and restraint except in an emergency and only then subject to the conditions and limitations of these rules.

(2) General procedures.

(a) Only a physician, nurse practitioner, physician assistant or nurse may initiate seclusion or restraint procedures.

(b) Each use of seclusion or restraint shall be monitored and supervised by a physician or a nurse.

(c) A physician responsible for the patient’s care must order the use of seclusion or restraint within one hour of the administration of the procedure. This approval must be documented in the person’s medical record. The physician’s order may occur by the following methods:

(A) Verbally, in person or via telephone;

(B) By Computerized Medical Record; or

(C) By a written order.

(d) Within one hour after the initiation of the seclusion or restraint intervention, the patient must be seen face-to-face by a physician, a registered nurse or physician assistant who has been trained in accordance with these rules.

(e) If the face-to-face evaluation is performed by a registered nurse or physician assistant, the evaluator must consult with the attending physician as soon as possible following the face-to-face evaluation.

(f) The face-to-face evaluation must include the following:

(A) An evaluation of the patient’s immediate situation;

(B) The patient’s reaction to the intervention;

(C) The patient’s medical and behavioral condition; and

(D) The need to continue or terminate the restraint or seclusion

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0040; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0732

Time Limits

(1) The maximum time limit for each restraint or seclusion order — before consideration of a renewal, and up to a maximum of 24 hours — is as follows:

(a) 4 hours for adults 18 years of age or older;

(b) 2 hours for children and adolescents 9 to 17 years of age; or

(c) 1 hour for children under 9 years of age.

(2) Orders may be renewed according to time limits for a maximum 24 hours verbally, by telephone, facsimile, or thru a computerized medical record. After each 24 hours of continuous restraint or seclusion, and prior to further extension of the restraint or seclusion, an examination and second opinion must occur by a second physician.

(3) The physician responsible for the care of the patient shall examine a person within 24 hours of the administration of seclusion or restraint and the person must be examined by a nurse every two hours until such time as the physician examines the person and either makes new orders for seclusion nor restraint or for releasing the patient from seclusion or restraint. The physician must document reasons for the use of the seclusion or restraint over the physician’s signature.

(4) A physician shall not order physical restraint on an as required basis, i.e. a physician shall not make “p.r.n.” orders for physical restraint.

(5) No form of restraint shall be used as punishment, for the convenience of staff, or as a substitute for activities, treatment or training.

(6) Medication will not be used as a restraint, but will be prescribed and administered according to acceptable medical, nursing and pharmaceutical practices.

(7) Patients shall not be permitted to use restraint on other patients.

(8) Physical restraint must be used in accordance with sound medical practice to assure the least risk of physical injury and discomfort. Any patient placed in physical restraint shall be protected from self-injury and from injury by others.

(9) 15 Minute Checks:

(a) A patient in restraint or seclusion must be checked at least every 15 minutes.

(b) 15 minute checks include circulation checks, during waking hours adequate range of motion, and partial release of restraint to permit motion and exercise without endangering the patient or staff.

(c) Attention must be paid to the patient’s basic personal needs (such as regular meals, personal hygiene and sleep) as well as the person’s need for good body alignment and circulation.

(d) Staff must document that the patient was checked and appropriate attention paid to the person’s needs.

(e) The patient must be released as soon as the patient is assessed by a nurse, physician, or nurse practitioner to not present imminent dangerousness to themselves or others.

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0733

Documentation

(1) No later than the end of their work shifts, the persons who obtained authorization and carried out the use of restraint shall document in the person’s chart including but not necessarily limited to the following:

(a) The specific behavior(s) which required the intervention of seclusion or restraint;

(b) Less restrictive alternatives used before deciding seclusion or restraint was necessary;

(c) The methods of intervention used and the patient’s responses to the interventions; and

(d) Findings and recommendations from the face-to-face evaluation discussed in OAR 309-033-0730(d) through (f) above.

(2) Within 24 hours after the incident resulting in the use of restraint, the treating physician who ordered the intervention must review and sign the order.

(3) Each use of restraint must be reported daily to the health care supervisor.

(4) Any death that occurs while a patient is in seclusion or restraint must be reported to AMH within 24 hours of the death.

(5) Restraint/Seclusion Review Committee. Each facility must have a Restraint/Seclusion Review Committee. The committee may be one formed specifically for the purposes set forth in this rule, or the duties prescribed in this rule may be assigned to an existing committee. The purpose and duty of the Restraint/Seclusion Review Committee is to review and evaluate, at least quarterly, the appropriateness of all such interventions and report its findings to the health care supervisor.

Stat. Auth.: ORS 426.236, 426.385 & 430.021
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0735

Quarterly Reports

(1) Every facility certified under these rules must report to the Division and to the Council within 30 days of each quarter’s end, the following information:

(a) The number of seclusion and the number of restraint incidents; and

(b) The number of patient days in the quarter.

(2) The Division must compile the information from all facilities approved under this rule and make available to the public statewide aggregate data. The information may be divided according to facility types.

Stat. Auth.: ORS 426.236, 426.385 & 430.021
Stats. Implemented: ORS 426.005 – 426.309
Hist.: MHS 17-2007(Temp), f. 12-28-07, cert. ef. 1-1-08 thru 6-29-08; MHS 5-2008, f. & cert. ef. 6-27-08: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0740

Variances

(1) Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the Council indicating its position on the proposed variance.

(3) The AMH Director, or his or her designee, will approve or deny the request for a variance.

(4) Appeal application. Appeal of the denial of a variance request shall be made in writing to the AMH Director, whose decision shall be final.

(5) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(6) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 426.236, 426.385 & 430.041
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0050; MHS 13-2014, f. & cert. ef. 9-29-14
Standards for the Denial of Payment for Services to Persons in Custody or on Diversion

309-033-0800

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures for the denial of payment for persons in custody or on diversion.

(2) Statutory authority. These rules are authorized by ORS 426.241 and 413.042 and carry out the provisions of ORS 426.241.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats Implemented: ORS 426.241
Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0000

309-033-0810

Definitions

(1) “Administrator- means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator- has the same meaning as “director of the facility- as that term is defined in ORS 426.005. Whenever “administrator- appears it means the administrator or designee.

(2) “Assistant Administrator- means the Assistant Administrator of the Division.

(3) “Clinical record- means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “Community hospital- means any hospital that is not a state hospital.

(5) “Custody- means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233(1);

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(6) “Director- means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director- also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(7) “Diversion- means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237.

(8) “Division- means the Addictions and Mental Health Division of the Oregon Health Authority.

(9) “Psychiatrist- means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(10) “Psychologist- means a clinical psychologist licensed by the Oregon Board of Psychologist Examiners.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236

Stats. Implemented: ORS 426.241

Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0010

309-033-0820

Denial of Payment for Services to Persons In Custody or On Diversion

(1) Assistant Administrator denial. The Assistant Administrator shall deny part or all payment for services for a person in custody or on a diversion only when the Assistant Administrator determines that evidence required by OAR 309-033-0820, Information Payer Must Submit, and the evidence required by OAR 309-033-0820, Clinical Records to be Submitted, does not reasonably support the belief that the person in custody demonstrated:

(a) Mental illness; and

(b) Dangerousness to self or others as evidenced by thoughts, plans, means, actions, history of dangerousness or other indicators of imminent dangerousness which Division believes are within accepted community standards of professional knowledge.

(2) Assistant Administrator consultation with psychiatrist or psychologist. When making a determination under this rule which is primarily based on accepted community standards of professional knowledge, the Assistant Administrator shall consult with a psychiatrist or a psychologist.

(3) Information payer must submit. When making a request for denial of payment the payer responsible for the services provided to the person in custody or on diversion under ORS 426.241 shall submit the following to the Assistant Administrator:

(a) A statement requesting the Division review the appropriateness of the hold or diversion for the purpose of approving denial of part or all payment for services rendered.

(b) An explanation of why the payer believes the services provided to the person in custody or on diversion do not meet criteria described in ORS 426.232, 426.233 or 426.237.

(c) Any documentation which supports the payer’s belief that the services provided to the person in custody or on diversion were inappropriate.

(4) Clinical records to be submitted. At the request of the Division, as provided by ORS 426.241(5)(b), the following shall submit clinical records and other documents requested relating to the services in question to the Division:

(a) A hospital or a nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion.

(b) A physician or person providing services to the person in custody or on diversion.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236

Stats. Implemented: ORS 426.241

Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0030

309-033-0830

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236

Stats. Implemented: ORS 426.241

Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0040

Standards for the Investigation and Examination of a
Person Alleged to be a Mentally Ill Person

309-033-0900

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures relating to the investigation and examination of a person alleged to be a mentally ill person during the involuntary civil commitment process.

(2) Statutory authority. These rules are authorized by ORS 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0000

309-033-0910

Definitions

(1) “Administrator- means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator- has the same meaning as “director of the facility- as that term is defined in ORS 426.005. Whenever “administrator- appears it means the administrator or designee.

(2) “Assistant Administrator- means the Assistant Administrator of Addictions and Mental Health Division.

(3) “Clinical record- means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP- means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community hospital- means any hospital that is not a state hospital.

(6) “Court- means the circuit court acting pursuant to ORS Chapter 426.

(7) “Custody- means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233(1);

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(8) “Designee- means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(9) “Director- means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director- also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(10) “Diversion- means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237(1)(b).

(11) “Division- means the Addictions and Mental Health Division of the Oregon Health Authority.

(12) “NMI- is the notification of mental illness required, pursuant to ORS 426.070, to be submitted by any two persons, a county health officer or a magistrate to the director and thereafter submitted by the director to the court or, pursuant to ORS 426.234, to be submitted by the physician or the director to the court. Pursuant to ORS 426.070 and 426.234, the court commences proceedings pursuant to ORS 426.070 to 426.130 upon receipt of the NMI.

(13) “Peace officer- means a sheriff, constable, marshal, municipal policeman, member of the Oregon State Police or investigator of the Criminal Justice Division of the Department of Justice and such other persons as may be designated by law.

(14) “Psychiatrist- means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(15) “QMHP- means a qualified mental health professional that meets the following minimum qualifications:

(a) Psychiatrist licensed to practice in the State of Oregon;

(b) Physician licensed to practice in the State of Oregon;

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0010

309-033-0920

Certification of Mental Health Investigators

(1) Investigation only by a certified investigator. Only a person certified by the Division shall conduct an investigation of a person alleged to be a mentally ill person as required by ORS 426.070(3)(c) and 426.074.

(2) Certification of a mental health investigator. The Division shall certify as a qualified mental health investigator, for three years or until such time as the Division terminates the certificate, any person who meets the following:

(a) Is recommended by a director for certification as a mental health investigator; and

(b) Is a QMHP, or on January 1, 1988, has been employed by a CMHP as an investigator for a minimum of two years; and

(c) Has established individual competence through training provided by the Division and within 6 months of the training has passed an examination conducted by the Division in the following areas:

(A) The role and duties of an investigator and the process of investigation;

(B) Oregon statutes and administrative rules relating to the civil commitment of mentally ill persons;

(C) Establishing probable cause for mental disorder;

(D) The mental status examination; and

(E) The assessment of suicidality, assaultiveness, homocidality and inability to care for basic needs.

(3) Certification of a senior mental health investigator. The Division shall certify as a senior mental health investigator, for five years or until such time as the Division terminates the certificate, a person who meets the following:

(a) Is recommended by a director for certification as a senior mental health investigator;

(b) Is a QMHP;

(c) Has been certified as a mental health investigator for three years; and

(d) Has completed the training required under OAR 309-033-0920 during the six months prior to application for certification.

(4) Certification of a mental health investigator resident. The Division shall certify as a mental health investigator resident for a non-renewable period of six months, or until such time as the Division terminates the certificate, a person who meets the following:

(a) Is recommended by a director for certification as a mental health investigator;

(b) Is a QMHP;

(c) Has passed an examination conducted by the Division regarding Oregon statutes and administrative rules relating to the civil commitment of mentally ill persons; and

(d) Is supervised by a certified senior mental health investigator. The senior mental health investigator shall review each investigation conducted by the mental health investigator resident and co-sign each investigation report as evidence that the senior mental health investigator believes the report meets OAR 309-033-0940, The Investigation Report.

(5) Qualifications for recertification. The Division may recertify a mental health investigator or a senior mental health investigator who is currently employed by a CMHP, is recommended by the director for recertification and who, during the period of certification, has completed eight hours of training or education in the assessment of mental disorder or the assessment of dangerousness which is approved by the Division.

(6) Residents cannot be recertified. The Division shall not recertify a mental health investigator resident.

(7) Termination of certification. The Division may terminate the certification of a mental health investigator, senior mental health investigator, or a mental health investigator resident when, in the opinion of the assistant administrator:

(a) The person no longer can competently perform the duties required by this rule, or

(b) The person has exhibited a behavior or a pattern of behavior which violates the rights, afforded by statute, of persons being investigated.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0030

309-033-0930

Investigation of Person Alleged to Be a Mentally Ill Person

(1) Initiation and timelines for investigation. Upon receipt of an NMI the CMHP shall conduct an investigation of the person to determine probable cause for mental disorder. The person conducting the investigation shall not be the same as the person filing the NMI.

(a) Investigation of NMIs by two persons, a county health officer or a magistrate. At a minimum, if the person can be located, the investigator must contact the person by telephone within three judicial days of the receipt of the NMI by the director.

(A) The investigator shall complete an investigation and submit an investigation report to the circuit court within 15 days of the director’s receipt of the NMI.

(B) The investigator may request an extension from the court if a treatment option less-restrictive than involuntary inpatient commitment is actively being pursued or if the person cannot be located.

(b) Investigation of persons in custody. The investigator shall investigate persons in custody in an approved hospital under ORS 426.232 or 426.033 as soon as reasonably possible but no later than one judicial day after the initiation of the detention and 24-hours prior to the hearing. Whenever feasible, the investigator shall:

(A) Make face-to-face contact with the person within 24 hours of admission to a hospital or nonhospital facility, including weekends; and

(B) Meet with the person one additional time prior to making a recommendation for the court to hold a commitment hearing.

(2) Procedures for the investigation. Only certified mental health investigators, senior mental health investigators or mental health investigator residents shall conduct an investigation of a person.

(a) While conducting an investigation, the investigator shall:

(A) Present photo identification, authorized and provided by the county mental health authority, to the person; and

(B) Explain the reason for the investigation orally and, if doing so would not endanger the investigator, in writing.

(b) Information from relatives. The investigator shall solicit information about the person from person’s parents and relatives, whenever feasible.

(c) Disclosure of names. The investigator shall disclose the names of the persons filing the NMI to the allegedly mentally ill person except when, in the opinion of the investigator, disclosure will jeopardize the safety of the persons filing the NMI. The investigator may withhold any information that is used in the investigation report, only until the investigation report is delivered to the court and others as required under ORS 426.074. The investigator may withhold any information that is not included in the investigation report if the investigator determines that release of the information would constitute a clear and immediate danger to any person (see ORS 426.370).

(d) Encourage voluntary services. The director shall attempt, as appropriate, to voluntarily enroll in the least restrictive community mental health services a person for whom an NMI has been filed.

(e) Clinical record required. The director shall maintain a clinical record for every person investigated under this rule. The clinical record shall document to the extent possible the following:

(A) A brief summary of the events leading to the filing of an NMI, the circumstances and events surrounding the interview of the person and the investigator’s attempts to engage the person in voluntary mental health services;

(B) Identifying information about the person;

(C) A copy of the NMI;

(D) A copy of the investigation report submitted to the court;

(E) Names, addresses and telephone numbers of family, friends, relatives or other persons who the investigator interviewed for pertinent information. This list shall include the names of the persons filing the NMI with the director; and

(F) Summary of the disposition of the case.

(f) Coordination of services. In the event the person is released or agrees to voluntary treatment, the investigator shall coordinate with the CMHP for the purpose of referral and offering voluntary treatment services to the person as soon as reasonably possible.

(3) Access to clinical records. The investigator shall have access to clinical records of the person being investigated as follows:

(a) When the person is in custody. The investigator shall have access only to clinical records compiled during the hold period. Without valid consent, the investigator shall not have access to clinical records compiled as part of treatment that is provided to the person at any time outside the hold period except as provided by OAR 309-033-0930(3)(b).

(b) When the person investigated is eligible for commitment pursuant to ORS 426.074. The investigator shall have access to any clinical record necessary to verify the existence of the criteria which make the person eligible for commitment pursuant to ORS 426.074.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0040

309-033-0940

The Investigation Report

(1) Evidence required in report. The investigator shall include in a report to the court, if relevant or available, evidence and the source of that evidence in the following areas:

(a) Evidence which describes the present illness and the course of events which led to the filing of the NMI and which occurred during the investigation of the person.

(b) Evidence to support or contradict the allegation that the person has a mental disorder.

(c) Evidence to support or contradict the allegation that the person is a danger to self or others, or is unable to provide for basic personal needs and is not receiving such care as is necessary for health and safety.

(2) Documentation of manifestation of mental disorder. The evidence which describes the present illness shall include:

(a) The situation in which the person was found and the most recent behaviors displayed by the person which lead to and support the filing of an NMI;

(b) The sequence of events affecting the person during the investigation period including dates of admission, transfer or discharge from a hospital or nonhospital facility;

(c) Any change in the mental status of the person during the course of the investigation; and

(d) Attempts by the investigator to engage the person in voluntary treatment in lieu of civil commitment and their outcome.

(3) Documentation of mental disorder. Evidence to support or contradict the allegation that the person has a mental disorder shall include the results of a mental status examination and a psychosocial history.

(a) Mental status examination. A mental status examination shall review the presence of indicators of mental disorder in the following areas:

(A) Appearance. Features of the person’s dress, physical condition which may indicate the presence of a mental disorder.

(B) Behavior. Features of the person’s behavior, movement or rate of speech which may indicate the presence of mental disorder.

(C) Thought content. Features of the content of the person’s speech such as delusions and hallucinations which may indicate the presence of a mental disorder.

(D) Thought process. Features of the person’s expressed thoughts which may indicate that the person is unable to think in a clear logical fashion and which may indicate the presence of a mental disorder.

(E) Insight. Features of the person’s understanding of his/her current mental state which may indicate the presence of a mental disorder.

(F) Judgment. Features of the person’s judgment about social situations and dangerous situations which may indicate the presence of a mental disorder.

(G) Cognitive testing. Features of the person’s ability to concentrate, ability to remember recent and historical events, ability to use abstract thinking, and ability to use or remember generally known information which may indicate the presence of a mental disorder.

(H) Emotions. Features of the person’s emotions, such as being inappropriate to the situation, which may indicate the presence of a mental disorder.

(b) Psychosocial History. A psychosocial history shall discuss the presence of indicators of mental disorder in the following areas:

(A) Psychiatric history.

(i) History of psychiatric or mental health treatment;

(ii) History of commitments for mental disorder including verification from the Division if available; and

(iii) Current participation in mental health treatment.

(B) Family history.

(i) Members of the person’s family who have a history of psychiatric or mental health treatment;

(ii) Members of the person’s family who have a history of commitment for mental disorder; or

(iii) Reports of family members who appear to have had an untreated mental disorder.

(C) History of alcohol or drug abuse.

(i) History of abusing alcohol or drugs;

(ii) Behaviors which the person may have displayed during the course of the investigation, which are substantially similar to behaviors that indicate the presence of a mental disorder, that may be attributable to the use of alcohol or drugs; or

(iii) If the person appears to have a mental disorder, the effect of the person’s current use of alcohol or drugs on behaviors that may indicate the presence of a mental disorder.

(D) History of a loss of function.

(E) Social function.

(F) Personal finances.

(i) Availability of financial resources to provide for basic needs such as food and shelter;

(ii) Use of financial resources to meet needs for food and shelter; or

(iii) Other features of the manner in which the person uses money which would indicate the presence of a mental disorder.

(G) Medical issues.

(i) Medical conditions that may produce behaviors which are substantially similar to behaviors that indicate the presence of a mental disorder; or

(ii) Medical conditions which contribute to the seriousness of a mental disorder which appears to be present.

(4) Documentation of dangerousness and/or inability to provide for basic needs. Evidence to support or contradict the allegation that the person is a danger to self or others, or is unable to provide for basic personal needs and is not receiving such care as is necessary for health and safety shall include the results of an assessment of dangerousness.

(a) An assessment of dangerousness to self shall consider the following areas:

(A) History of thoughts, plans or attempts at suicide;

(B) Presence of thoughts, plans or attempts at suicide;

(C) Means and ability to carry out the plans for suicide;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at suicide; and

(F) Available support systems which may prevent the person from acting on the plan.

(b) An assessment of dangerousness to others shall consider the following areas:

(A) History of thoughts, plans, attempts or acts of assaultiveness or violence;

(B) Presence of thoughts, plans, attempts or acts of assaultiveness or violence;

(C) Means and ability to carry out the plans for assaultiveness or violence;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at assault or violence; and

(F) Available support systems which may prevent the person from attempting an assault or an act of violence.

(c) An assessment of the person’s ability to provide for basic personal needs shall consider the following areas:

(A) History of the person’s ability to provide for basic personal needs;

(B) The person’s current use of resources to obtain food, shelter, and health care necessary for health and safety;

(C) Behaviors which result in exposure to danger to self or others;

(D) Available support systems which may provide the person care necessary for health and safety; and

(E) If the person appears to lack capacity to care for self, the availability of a guardian who can assure the provision of such care.

(5) Additional report requirements. The investigation report shall also include the following:

(a) The person’s consent or objection to contact with specific third parties.

(b) If appropriate and if available from the Division, verification of the person’s eligibility for commitment under ORS 426.005(c).

(6) Report availability. The investigation report shall be made available to the facility with custody of the person if the person is committed.

(7) Investigator’s responsibilities to the circuit court. The investigator shall file the investigation report with the circuit court twenty-four hours before the hearing and shall appear at the civil commitment hearing.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0050

309-033-0950

Certification of Mental Health Examiners

(1) Psychiatrists exempt from certification. A psychiatrist may serve as an examiner as provided by ORS 426.110. Division certification is not necessary for psychiatrists serving as mental health examiners.

(2) Qualifications for certification of persons other than psychiatrists. The Division shall certify, as a qualified mental health examiner for three years or until such time as the Division terminates the certificate, a QMHP who meets all of the following:

(a) Has at least three years clinical experience in the diagnosis and treatment of severely mentally ill adults who suffer primarily from a psychotic disorder;

(b) Presents acceptable written references from two persons who have the above qualifications and can demonstrate direct knowledge of the person’s qualifications;

(c) Is recommended by the director to be an examiner in the county; and

(d) Has established individual competence through training provided by the Division in the following areas:

(A) The role and duties of an examiner and the process of examination;

(B) Oregon statutes and administrative rules relating to the civil commitment of mentally ill persons;

(C) Establishing clear and convincing evidence for mental disorder;

(D) The mental status examination; and

(E) The assessment of suicidality, assaultiveness, homocidality and inability to care for basic needs.

(3) Qualifications for recertification. The Division may recertify for three years, or until such time as the Division terminates the certificate of, any mental health examiner who meets the following:

(a) The examiner has been an examiner certified by the Division after July 1, 1988;

(b) The examiner has successfully completed eight hours of training provided by the Division relating to the assessment and diagnosis of mental disorder and, changes in statutes and administrative rules relating to civil commitment; and

(c) The director recommends the person to be an examiner in the county.

(4) Examination. The examiner shall conduct an examination in a manner that elicits the data necessary for establishing a diagnosis and a plan for treatment. Only certified examiners shall conduct an examination of an allegedly mentally ill person.

(5) Termination of certification. The Division may terminate the certification of any mental health examiner when, in the opinion of the assistant administrator:

(a) The person no longer can competently perform the duties required by this rule; or

(b) The person has exhibited a behavior or a pattern of behavior which violates the rights, afforded by statute, of persons being investigated.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0060

309-033-0960

Mental Health Examiner’s Report to the Court

(1) Examiner assessment of evidence. The examiner shall provide in a report to the court the examiner’s opinion whether the evidence supports or contradicts:

(a) The allegation that the person has a mental disorder;

(b) The allegation that the person is a danger to self or others, or is unable to provide for basic personal needs and is not receiving such care as is necessary for health and safety; and

(c) That the person would cooperate with and benefit from voluntary treatment.

(2) Mental status examination and psychosocial history. In addition to considering other evidence presented at the hearing, the examiner shall conduct a mental status examination and a psychosocial history to determine whether the person alleged to be mentally ill has a mental disorder.

(a) Mental status examination. A mental status examination shall include review of the presence of indicators of mental disorder in the following areas:

(A) Appearance. Features of the person’s dress, physical condition which may indicate the presence of a mental disorder.

(B) Behavior. Features of the person’s behavior, movement or rate of speech which may indicate the presence of mental disorder.

(C) Thought content. Features of the content of the person’s speech such as delusions and hallucinations which may indicate the presence of a mental disorder.

(D) Thought process. Features of the person’s expressed thoughts which may indicate that the person is unable to think in a clear logical fashion and which may indicate the presence of a mental disorder.

(E) Insight. Features of the person’s understanding of his/her current mental state which may indicate the presence of a mental disorder.

(F) Judgment. Features of the person’s judgment about social situations and dangerous situations which may indicate the presence of a mental disorder.

(G) Cognitive testing. Features of the person’s ability to concentrate, ability to remember recent and historical events, ability to use abstract thinking, and ability to use or remember generally known information which may indicate the presence of a mental disorder.

(H) Emotions. Features of the person’s emotions, such as being inappropriate to the situation, which may indicate the presence of a mental disorder.

(b) Psychosocial history. A psychosocial history shall consider the presence of indicators of mental disorder in the following areas:

(A) Psychiatric history.

(i) History of psychiatric or mental health treatment;

(ii) History of commitments for mental disorder including verification from the Division if available; and

(iii) Current participation in mental health treatment.

(B) Family history.

(i) Members of the person’s family who have a history of psychiatric or mental health treatment;

(ii) Members of the person’s family who have a history of commitment for mental disorder; or

(iii) Reports of family members who appear to have had an untreated mental disorder.

(C) History of alcohol or drug abuse.

(i) History of abusing alcohol or drugs;

(ii) Behaviors the person may have displayed during the course of the investigation which are substantially similar to behaviors that indicate the presence of a mental disorder that may be attributable to the use of alcohol or drugs; or

(iii) If the person appears to have a mental disorder, the effect of the person’s current use of alcohol or drugs on behaviors that may indicate the presence of a mental disorder.

(D) History of a loss of function.

(E) Social function.

(F) Personal finances.

(i) Availability of financial resources to provide for basic needs such as food and shelter;

(ii) Use of financial resources to meet needs for food and shelter; and

(iii) Other features of the manner in which the person uses money which would indicate the presence of a mental disorder.

(G) Medical issues.

(i) Medical conditions that may produce behaviors which are substantially similar to behaviors that indicate the presence of a mental disorder; or

(ii) Medical conditions which contribute to the seriousness of a mental disorder which appears to be present.

(3) Assessment of dangerousness and ability to provide basic needs. In addition to considering other evidence presented at the hearing, the examiner shall conduct an assessment of the danger the person represents to self or others and an assessment of the person’s ability to provide for basic personal needs.

(a) An assessment of dangerousness to self shall consider the following areas:

(A) History of thoughts, plans or attempts at suicide;

(B) Presence of thoughts, plans or attempts at suicide;

(C) Means and ability to carry out the plans for suicide;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at suicide; and

(F) Available support systems which may prevent the person from acting on the plan.

(b) An assessment of dangerousness to others shall consider the following areas:

(A) History of thoughts, plans, attempts or acts of assaultiveness or violence;

(B) Presence of thoughts, plans, attempts or acts of assaultiveness or violence;

(C) Means and ability to carry out the plans for assaultiveness or violence;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at assault or violence; and

(F) Available support systems which may prevent the person from attempting an assault or an act of violence.

(c) An assessment of the person’s ability to provide for basic personal needs shall consider the following areas:

(A) History of the person’s ability to provide for basic personal needs;

(B) The person’s current use of resources to obtain food, shelter, and health care necessary for health and safety;

(C) Behaviors which result in exposure to danger to self or other;

(D) Available support systems which may provide the person care necessary for health and safety; and

(E) If the person appears to lack capacity to care for self, the availability of a guardian who can assure the provision of such care.

Stat. Auth.: ORS 413.042, 426.060 – 426.500

Stats. Implemented: ORS 426.005 – 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0070

309-033-0970

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 426.060 – 426.500 & 430.041

Stats. Implemented: ORS 426.005 – 426.309

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0080

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MISSOURI INVOLUNTARY STATUTES

Chapter 632
Comprehensive Psychiatric Services
DEFINITIONS:

632.005. As used in chapter 631, RSMo, and this chapter, unless the context clearly requires otherwise, the following terms shall mean: 
(1) “Comprehensive psychiatric services”, any one, or any combination of two or more, of the following services to persons affected by mental disorders other than mental retardation or developmental disabilities: inpatient, outpatient, day program or other partial hospitalization, emergency, diagnostic, treatment, liaison, follow-up, consultation, education, rehabilitation, prevention, screening, transitional living, medical prevention and treatment for alcohol abuse, and medical prevention and treatment for drug abuse;
(2) “Council”, the Missouri advisory council for comprehensive psychiatric services;
(3) “Court”, the court which has jurisdiction over the respondent or patient;
(4) “Division”, the division of comprehensive psychiatric services of the department of mental health;
(5) “Division director”, director of the division of comprehensive psychiatric services of the department of mental health, or his designee;
(6) “Head of mental health facility”, superintendent or other chief administrative officer of a mental health facility, or his designee;
(7) “Judicial day”, any Monday, Tuesday, Wednesday, Thursday or Friday when the court is open for business, but excluding Saturdays, Sundays and legal holidays;
(8) “Licensed physician”, a physician licensed pursuant to the provisions of chapter 334, RSMo, or a person authorized to practice medicine in this state pursuant to the provisions of section 334.150, RSMo;
(9) “Likelihood of serious harm” means any one or more of the following but does not require actual physical injury to have occurred:
(a) A substantial risk that serious physical harm will be inflicted by a person upon his own person, as evidenced by recent threats, including verbal threats, or attempts to commit suicide or inflict physical harm on himself. Evidence of substantial risk may also include information about patterns of behavior that historically have resulted in serious harm previously being inflicted by a person upon himself;
(b) A substantial risk that serious physical harm to a person will result or is occurring because of an impairment in his capacity to make decisions with respect to his hospitalization and need for treatment as evidenced by his current mental disorder or mental illness which results in an inability to provide for his own basic necessities of food, clothing, shelter, safety or medical care or his inability to provide for his own mental health care which may result in a substantial risk of serious physical harm. Evidence of that substantial risk may also include information about patterns of behavior that historically have resulted in serious harm to the person previously taking place because of a mental disorder or mental illness which resulted in his inability to provide for his basic necessities of food, clothing, shelter, safety or medical or mental health care; or
(c) A substantial risk that serious physical harm will be inflicted by a person upon another as evidenced by recent overt acts, behavior or threats, including verbal threats, which have caused such harm or which would place a reasonable person in reasonable fear of sustaining such harm. Evidence of that substantial risk may also include information about patterns of behavior that historically have resulted in physical harm previously being inflicted by a person upon another person; (10) “Mental health coordinator”, a mental health professional employed by the state of Missouri who has knowledge of the laws relating to hospital admissions and civil commitment and who is appointed by the director of the department, or his designee, to serve a designated geographic area or mental health facility and who has the powers, duties and responsibilities provided in this chapter;
(11) “Mental health facility”, any residential facility, public or private, or any public or private hospital, which can provide evaluation, treatment and, inpatient care to persons suffering from a mental disorder or mental illness and which is recognized as such by the department or any outpatient treatment program certified by the department of mental health. No correctional institution or facility, jail, regional center or mental retardation facility shall be a mental health facility within the meaning of this chapter;
(12) “Mental health professional”, a psychiatrist, resident in psychiatry, psychologist, psychiatric nurse or psychiatric social worker;
(13) “Mental health program”, any public or private residential facility, public or private hospital, public or private specialized service or public or private day program that can provide care, treatment, rehabilitation or services, either through its own staff or through contracted providers, in an inpatient or outpatient setting to persons with a mental disorder or mental illness or with a diagnosis of alcohol abuse or drug abuse which is recognized as such by the department. No correctional institution or facility or jail may be a mental health program within the meaning of this chapter;
(14) “Ninety-six hours” shall be construed and computed to exclude Saturdays, Sundays and legal holidays which are observed either by the court or by the mental health facility where the respondent is detained;
(15) “Peace officer”, a sheriff, deputy sheriff, county or municipal police officer or highway patrolman;
(16) “Psychiatric nurse”, a registered professional nurse who is licensed under chapter 335, RSMo, and who has had at least two years of experience as a registered professional nurse in providing psychiatric nursing treatment to individuals suffering from mental disorders;
(17) “Psychiatric social worker”, a person with a master’s or further advanced degree from an accredited school of social work, practicing pursuant to chapter 337, RSMo, and with a minimum of one year training or experience in providing psychiatric care, treatment or services in a psychiatric setting to individuals suffering from a mental disorder;
(18) “Psychiatrist”, a licensed physician who in addition has successfully completed a training program in psychiatry approved by the American Medical Association, the American Osteopathic Association or other training program certified as equivalent by the department;
(19) “Psychologist”, a person licensed to practice psychology under chapter 337, RSMo, with a minimum of one year training or experience in providing treatment or services to mentally disordered or mentally ill individuals;
(20) “Resident in psychiatry”, a licensed physician who is in a training program in psychiatry approved by the American Medical Association, the American Osteopathic Association or other training program certified as equivalent by the department;
(21) “Respondent”, an individual against whom involuntary civil detention proceedings are instituted pursuant to this chapter;
(22) “Treatment”, any effort to accomplish a significant change in the mental or emotional conditions or the behavior of the patient consistent with generally recognized principles or standards in the mental health professions.
(L. 1980 H.B. 1724, A.L. 1985 S.B. 265, A.L. 1988 H.B. 971, A.L. 1996 S.B. 884 & 841)
CROSS REFERENCE:
Definitions also applicable, RSMo 630.005

632.010. Responsibilities, powers, functions and duties of division. 
1. The “Division of Comprehensive Psychiatric Services” is hereby created within the department of mental health. The division shall have the responsibility of insuring that division prevention, evaluation, treatment and rehabilitation services are accessible, wherever possible. The division shall have and exercise supervision of division residential facilities, day programs and other specialized services operated by the department and oversight over facilities, programs and services funded or licensed by the department.
2. The powers, functions and duties of the division shall include the following:
(1) Provision of funds for the planning and implementation of accessible programs to prevent and alleviate mental disorders and mental illness;
(2) Review of comprehensive psychiatric service plans submitted to receive state and federal funds allocated by the department;
(3) Provision of technical assistance and training to community-based programs to assist in planning and implementing quality services;
(4) Assurance of program quality in compliance with such appropriate standards as may be established by the department;
(5) Sponsorship and encouragement of research into the causes, effects, prevention, treatment and rehabilitation of mental disorders and mental illness;
(6) Provision of public information relating to mental disorders and mental illness;
(7) Cooperation with non-state governmental agencies and the private sector in establishing, conducting, integrating and coordinating facilities, programs, projects and services for persons affected by mental disorders or mental illness;
(8) Participation in developing and implementing a statewide plan to prevent and alleviate mental disorders and mental illness and to overcome the barriers to the treatment and rehabilitation of persons chronically affected by mental disorders or mental illness;
(9) Encouragement of coordination of division services with other divisions of the department and other state agencies, where appropriate;
(10) Encouragement of the utilization, support, assistance and dedication of volunteers to participate in the treatment and rehabilitation of persons affected by mental disorders or mental illness or to persuade such persons to voluntarily seek appropriate services to alleviate their disorders or illness;
(11) Evaluation, or the requirement of the evaluation, including the collection of appropriate and necessary information, of division programs to determine their cost-and-benefit effectiveness;
(12) Participation in developing standards for residential facilities, day programs and specialized services operated, funded or licensed by the department for persons affected by mental disorders or mental illness.
(L. 1980 H.B. 1724)

632.015. Division director to be chief administrative officer. 
The division director, subject to the supervision of the director, shall be the chief administrative officer of his division and shall exercise for the division the powers and duties of an appointing authority under chapter 36, RSMo, to employ such administrative, technical and other personnel, except employees of department facilities, as may be necessary for the performance of the powers and duties of the division.
(L. 1980 H.B. 1724)

632.020. Advisory council for comprehensive psychiatric services–members, number, terms, qualifications, appointment–organization, meetings –duties. 
1. The Missouri advisory council for comprehensive psychiatric services, created by executive order of the governor on June 10, 1977, shall act as an advisory body to the division and the division director. The council shall be comprised of up to twenty-five members, the number to be determined under the council bylaws.
2. The members of the council shall be appointed by the director. Members shall serve for overlapping terms of three years each. The members of the existing council appointed under the provisions of the executive order shall serve the remainder of their appointed terms. At the expiration of the term of each such member, the director shall appoint an individual who shall hold office for a term of three years. Each member shall hold office until a successor has been appointed. Members shall have professional, research or personal interest in the prevention, evaluation, care, treatment and rehabilitation of persons affected by mental disorders and mental illness. The council shall include representatives from the following:
(1) Nongovernment organization or groups and state agencies concerned with the planning, operation or use of comprehensive psychiatric services;
(2) Representatives of consumers and providers of comprehensive psychiatric services who are familiar with the need for such services. At least one-half of the members shall be consumers. No more than one-fourth of the members shall be vendors or members of boards of directors, employees or officers of vendors, or any of their spouses, if such vendors receive more than fifteen hundred dollars under contract with the department; except that members of boards of directors of not-for-profit corporations shall not be considered members of board of directors of vendors under this subsection.
3. A vacancy occurring on the council shall be filled by appointment of the director.
4. Meetings shall be held at least every ninety days at the call of the division director or the council chairman, who shall be elected by the council.
5. Each member shall be reimbursed for reasonable and necessary expenses, including travel expenses pursuant to the travel regulations for employees of the department, actually incurred in the performance of his official duties.
6. The council may be divided into sub-councils in accordance with its bylaws. The council shall study, plan and make recommendations on the prevention, evaluation, care, treatment, rehabilitation, housing and facilities for persons affected by mental disorders and mental illness.
7. No member of a state advisory council may participate in or seek to influence a decision or vote of the council if the member would be directly involved with the matter or if he would derive income from it. A violation of the prohibition contained herein shall be grounds for a person to be removed as a member of the council by the director.
8. The council shall collaborate with the department in developing and administering a state plan for comprehensive psychiatric services. The council shall be advisory and shall:
(1) Promote meetings and programs for the discussion of reducing the debilitating effects of mental disorders and mental illness and disseminate information in cooperation with any other department, agency or entity on the prevention, evaluation, care, treatment and rehabilitation for persons affected by mental disorders or mental illness;
(2) Study and review current prevention, evaluation, care, treatment and rehabilitation technologies and recommend appropriate preparation, training, retraining and distribution of manpower and resources in the provision of services to persons affected by mental disorders or mental illness through private and public residential facilities, day programs and other specialized services;
(3) Recommend what specific methods, means and procedures should be adopted to improve and upgrade the department comprehensive psychiatric service delivery system for citizens of this state;
(4) Participate in developing and disseminating criteria and standards to qualify comprehensive psychiatric service residential facilities, day programs and other specialized services in this state for funding or licensing, or both, by the department.
(L. 1980 H.B. 1724)

632.025. Services to be provided. 
The division may provide prevention, evaluation, care, treatment, rehabilitation and such related services directly or through performance contracts with appropriate residential facilities, day programs or specialized services licensed and funded by the department.
(L. 1980 H.B. 1724)

632.030. Department to develop state plan, contents. 
1. The department shall prepare a state plan to secure coordinated prevention, evaluation, care, treatment and rehabilitation services accessible to persons in need of them in defined geographic areas, which plan shall be reviewed and revised annually.
2. The state plan shall include, but need not be limited to, the following:
(1) A needs-assessment of the state to determine underserved, un-served and inappropriately served populations and areas;
(2) Statements of short-term and long-term goals for meeting the needs of the currently served, un-served, underserved or inappropriately served populations and areas of the state;
(3) An inventory of existing private or community-based public residential facilities, clinics, day programs and other specialized service providers offering mental disorder or mental illness services;
(4) Evaluations of the effects of prevention, evaluation, care, treatment and rehabilitation programs;
(5) Descriptions of the following:
(a) Methods for assuring active, consumer-oriented citizen participation throughout the system;
(b) Strategies and procedures for encouraging, coordinating and integrating community-based services wherever practicable to avoid duplication by private, not-for-profit and public state and community-based providers of services;
(c) Methods for monitoring the quality of prevention, evaluation, care, treatment and rehabilitation services funded by the state;
(d) Rules which set standards for construction, staffing, operations and programs, as appropriate, for any public or private entity to meet before receiving state licensing, certification or funding; and
(e) Plans for addressing the particular mental disorder and mental illness service needs of each region, including special strategies for rural and urban un-served, underserved or inappropriately served populations and areas of the state.
3. In preparing the state plan, the department shall take into consideration its regional plans.
(L. 1980 H.B. 1724)

632.035. Department director to establish regions. 
The department director shall divide the state into regions. The boundaries of such regions shall, to the extent practicable, be contiguous with relevant boundaries of political subdivisions and health service areas.
(L. 1980 H.B. 1724)

632.040. Department director may establish regional councils–division director to appoint members–terms and qualifications of members. 
1. The director may establish regional councils in any of the regions. If a regional council is established in a region, the division director shall appoint up to twenty members who reside in the region to serve staggered three-year terms on the councils.
2. At least one-half of the members shall be consumers and no more than one-fourth of the members shall be vendors, or employees, members of boards of directors or officers of vendors, or their spouses, if such vendors receive more than fifteen hundred dollars under contract with the department; except that members of boards of directors of not-for-profit corporations shall not be subject to the one-fourth limitation on the membership under this subsection.
3. No member of a regional advisory council may participate in or seek to influence a decision or vote of the council if the member would be directly involved with the matter or if he would derive income from it. A violation of the prohibition contained herein shall be grounds for a person to be removed as a member of the council by the director.
(L. 1980 H.B. 1724)

632.045. Duties of regional advisory councils–plans–employment of staff. 
1. Any regional advisory councils established under section 632.040 shall participate in the preparation of regional plans and annually review, advise on and recommend them before they are transmitted to the state advisory council and the division director. The plans shall include at least the following:
(1) An inventory of existing private or community-based public residential facilities, clinics, day programs and other specialized service providers offering mental disorder or mental illness services;
(2) An assessment of needs, including any special target populations, of un-served, underserved or inappropriately served persons;
(3) A statement of specific goals for the region.
*2. Any staff of such regional advisory councils shall be provided only from funds appropriated specifically for that purpose. This subsection shall become effective July 1, 1981.
(L. 1980 H.B. 1724)

632.050. Division to identify community-based services. 
The division shall identify community-based services in each geographic area as entry and exit points into and from the state mental health delivery system offering a continuum of comprehensive mental health services.
(L. 1980 H.B. 1724)

632.055. Division to provide services. 
The division shall provide or arrange for the provision of services in the least restrictive environment to mentally disordered and mentally ill persons based upon their diagnoses and individualized treatment plans on a continuum of services.
(L. 1980 H.B. 1724)

632.060. Department may establish outpatient clinics–cooperation with others. 
The department may establish clinics for the evaluation, care, treatment or rehabilitation, on an outpatient basis, of persons affected by mental disorders or mental illness. The department shall cooperate with political subdivisions, schools and other organizations in the geographic area where it locates its clinic to establish and further programs of education and training for the prevention of mental disorders and mental illness.
(L. 1980 H.B. 1724)

632.070. Family services division to cooperate with mental health department –consent for minors required. 
The division of family services of the department of social services through its county family service offices shall cooperate with the facilities, programs and services operated or funded by the department in locating, referring and interviewing any persons who are in need of comprehensive psychiatric services. The parents or legal custodians of any minors shall consent to the treatment of the minors, and they shall be advised that they have the right to consult their regular physicians before giving their consent to any treatment.
(L. 1980 H.B. 1724)

632.105. Adults to be accepted for evaluation, when, by whom–may then be admitted to mental health facility–consent required. 
1. The head of a private mental health facility may, and the head of a department mental health facility shall, except in the case of a medical emergency and subject to the availability of suitable programs and accommodations, accept for evaluation, on an outpatient basis if practicable, any person eighteen years of age or over who applies for his admission. The department may require that a community-based service where the person resides perform the evaluation pursuant to an affiliation agreement and contract with the department.
2. If a person is diagnosed as having a mental disorder, other than mental retardation or developmental disability without another accompanying mental disorder, and is determined to be in need of inpatient treatment, the person may be admitted by a private mental health facility and shall be admitted by a department mental health facility, if suitable accommodations are available, for care and treatment as an inpatient for such periods and under such conditions as authorized by law. The department may require that a community-based service where the patient resides admit the person for inpatient care and treatment pursuant to an affiliation agreement and contract with the department.
3. A person who is admitted under this section is a voluntary patient and shall have the right to consent to evaluation, care, treatment and rehabilitation and shall not be medicated without his prior voluntary and informed consent; except that medication may be given in emergency situations.
(L. 1980 H.B. 1724)

632.110. Minors to be accepted for evaluation, when, by whom–may then be admitted to mental health facility–parent or guardian to consent –peace officer may transport to facility, when. 
1. The head of a private mental health facility may, and the head of a department mental health facility shall, except in the case of a medical emergency and subject to the availability of suitable programs and accommodations, accept for evaluation, on an outpatient basis if practicable, any minor for whom an application for voluntary admission is made by his parent or other legal custodian. The department may require that a community-based service where the minor resides perform the evaluation pursuant to an affiliation agreement or contract with the department.
2. If the minor is diagnosed as having a mental disorder, other than mental retardation or developmental disability without another accompanying mental disorder, and found suitable for inpatient treatment as a result of the evaluation, the minor may be admitted by a private mental health facility or shall be admitted by a department mental health facility, if suitable accommodations are available, for care, treatment and rehabilitation as an inpatient for such periods and under such conditions as authorized by law. The department may require that a community-based service where the patient resides admit the person for inpatient care, treatment and rehabilitation pursuant to an affiliation agreement and contract with the department.
3. The parent or legal custodian who applied for the admission of the minor shall have the right to authorize his evaluation, care, treatment and rehabilitation and the right to refuse permission to medicate the minor; except that medication may be given in emergency situations. 4. The parent or legal custodian may request a peace officer to take a minor into custody and transport him to the mental health facility for evaluation if the parent or legal custodian applies for such evaluation under subsection 1 of this section.
(L. 1980 H.B. 1724)

632.115. Juveniles to be admitted by heads of facilities when committed. 
The head of a private mental health facility may, and the head of a public mental health facility shall, except in the case of medical emergency and subject to the availability of suitable programs and accommodations, admit any minor who has symptoms of mental disorder other than mental retardation or developmental disability, who is under the jurisdiction of a juvenile court and who is committed to a facility not operated by the state of Missouri under section 211.181, RSMo, or to the custody of the director pursuant to sections 211.201 to 211.207, RSMo, for assignment by the director to an appropriate facility.
(L. 1980 H.B. 1724)

632.120. Incompetents to be accepted by heads of facilities upon application –duration of admission for evaluation–consent may be authorized. 
1. The head of a private mental health facility may, and the head of a department facility shall, except in the case of a medical emergency and subject to the availability of suitable programs and accommodations, accept for evaluation and treatment, on an outpatient basis if practicable, any person who has been declared incapacitated by a court of competent jurisdiction and for whom an application for voluntary admission is made by his guardian. The department may require that a community-based service where the person resides perform the evaluation pursuant to an affiliation agreement and contract with the department.
2. If the person is diagnosed as having a mental disorder, other than mental retardation or developmental disability without another accompanying mental disorder, and the person is found suitable for inpatient treatment as a result of the evaluation, the person may be admitted by a private mental health facility or shall be admitted by a public mental health facility, if suitable accommodations are available, for care, treatment and rehabilitation as an inpatient for up to thirty days after admission for evaluation and treatment.
3. If further inpatient services are recommended, the person may remain in the facility only if his guardian is authorized by the court to continue the inpatient hospitalization. The court may authorize the guardian to consent to evaluation, care, treatment, including medication, and rehabilitation on an inpatient basis.
(L. 1980 H.B. 1724, A.L. 1985 S.B. 35, et al.)

632.150. Release of voluntary patients–voluntary patient may be involuntarily detained, procedure. 
1. A voluntary patient who has applied for his own admission may request his release either orally or in writing to the head of the mental health facility and shall be released immediately; except, that if the head of the facility determines that he is mentally disordered and, as a result, presents a likelihood of serious physical harm to himself or others, the head of the facility may refuse the request for release.
2. If the request for release is refused, the mental health facility may detain the person only if a mental health coordinator, a licensed physician, a registered professional nurse designated by the facility and approved by the department, a mental health professional or a peace officer completes an application for detention for evaluation and treatment to begin the involuntary detention of the patient under this chapter.
(L. 1980 H.B. 1724)

632.155. Release of voluntary minor patients, consent required–may be involuntarily detained, when, procedure. 
1. A voluntary patient who is a minor and who requests his release either orally or in writing, or whose release is requested in writing to the head of the facility by his parent, spouse, adult next of kin, or person entitled to his custody, shall be released immediately; except, that if the patient was admitted on the application of another person, his release shall be conditioned upon receiving the consent of the person applying for his admission.
2. If the head of the mental health facility determines that the minor is mentally disordered and, as a result, presents a likelihood of serious physical harm to himself or others, the head of the facility may refuse the release. The mental health facility may detain the minor only if a mental health coordinator, a licensed physician, a mental health professional or a registered professional nurse designated by the facility and approved by the department completes an application for detention for evaluation and treatment to begin the involuntary detention of the minor under this chapter or, if appropriate, the minor is detained in the facility under the provisions of chapter 211, RSMo.
(L. 1980 H.B. 1724)

632.175. Review of patient’s condition, by whom, when–release or placement –copy of review to be given. 
1. At least once every one hundred eighty days, the head of each mental health facility shall cause the condition of each patient to be reviewed for the purpose of determining whether the patient needs further hospitalization or should be released. If, as a result of such review, it is determined that inpatient care, treatment and rehabilitation are no longer appropriate, the head of the facility shall discharge, or initiate proceedings to discharge, the patient. If a patient meets the criteria for placement, the head of the facility shall refer him for placement.
2. In making the review required by this section, the head of the facility shall satisfy himself that the patient is receiving care, treatment or rehabilitation in the least restrictive environment available.
3. If the patient has a guardian, copies of this review and the person’s individualized treatment plan shall be sent to the guardian and the court.
(L. 1980 H.B. 1724)

632.300. Procedure when a likelihood of serious harm is alleged. 
1. When a mental health coordinator receives information alleging that a person, as the result of a mental disorder, presents a likelihood of serious harm to himself or others, he shall:
(1) Conduct an investigation;
(2) Evaluate the allegations and the data developed by investigation; and
(3) Evaluate the reliability and credibility of all sources of information.
2. If, as the result of personal observation or investigation, the mental health coordinator has reasonable cause to believe that such person is mentally disordered and, as a result, presents a likelihood of serious harm to himself or others, the mental health coordinator may file an application with the court having probate jurisdiction pursuant to the provisions of section 632.305; provided, however, that should the mental health coordinator have reasonable cause to believe, as the result of personal observation or investigation, that the likelihood of serious harm by such person to himself or others as a result of a mental disorder is imminent unless the person is immediately taken into custody, the mental health coordinator shall request a peace officer to take or cause such person to be taken into custody and transported to a mental health facility in accordance with the provisions of subsection 3 of section 632.305.
3. If the mental health coordinator determines that involuntary commitment is not appropriate, he should inform either the person, his family or friends about those public and private agencies and courts which might be of assistance.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.305. Detention for evaluation and treatment, who may request–procedure –duration–disposition after application. 
1. An application for detention for evaluation and treatment may be executed by any adult person, who need not be an attorney or represented by an attorney, including the mental health coordinator, on a form provided by the court for such purpose, and must allege under oath that the applicant has reason to believe that the respondent is suffering from a mental disorder and presents a likelihood of serious harm to himself or to others. The application must specify the factual information on which such belief is based and should contain the names and addresses of all persons known to the applicant who have knowledge of such facts through personal observation.
2. The filing of a written application in court by any adult person, who need not be an attorney or represented by an attorney, including the mental health coordinator, shall authorize the applicant to bring the matter before the court on an ex parte basis to determine whether the respondent should be taken into custody and transported to a mental health facility. The application may be filed in the court having probate jurisdiction in any county where the respondent may be found. If the court finds that there is probable cause, either upon testimony under oath or upon a review of affidavits, to believe that the respondent may be suffering from a mental disorder and presents a likelihood of serious harm to himself or others, it shall direct a peace officer to take the respondent into custody and transport him to a mental health facility for detention for evaluation and treatment for a period not to exceed ninety-six hours unless further detention and treatment is authorized pursuant to this chapter. Nothing herein shall be construed to prohibit the court, in the exercise of its discretion, from giving the respondent an opportunity to be heard.
3. A mental health coordinator may request a peace officer to take or a peace officer may take a person into custody for detention for evaluation and treatment for a period not to exceed ninety-six hours only when such mental health coordinator or peace officer has reasonable cause to believe that such person is suffering from a mental disorder and that the likelihood of serious harm by such person to himself or others is imminent unless such person is immediately taken into custody. Upon arrival at the mental health facility, the peace officer or mental health coordinator who conveyed such person or caused him to be conveyed shall either present the application for detention for evaluation and treatment upon which the court has issued a finding of probable cause and the respondent was taken into custody or complete an application for initial detention for evaluation and treatment for a period not to exceed ninety-six hours which shall be based upon his own personal observations or investigations and shall contain the information required in subsection 1 of this section.
4. If a person presents himself or is presented by others to a mental health facility and a licensed physician, a registered professional nurse or a mental health professional designated by the head of the facility and approved by the department for such purpose has reasonable cause to believe that the person is mentally disordered and presents an imminent likelihood of serious harm to himself or others unless he is accepted for detention, the licensed physician, the mental health professional or the registered professional nurse designated by the facility and approved by the department may complete an application for detention for evaluation and treatment for a period not to exceed ninety-six hours. The application shall be based on his own personal observations or investigation and shall contain the information required in subsection 1 of this section.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.310. Facilities to accept certain applicants–evaluation to follow –transportation back to place of residence. 
1. Whenever a court has authorized the initial detention and evaluation of a respondent pursuant to subsection 2 of section 632.305, or whenever a mental health coordinator submits an application for initial detention and evaluation pursuant to subsection 3 of section 632.305, or whenever a licensed physician, a registered professional nurse designated by the facility and approved by the department, or a mental health professional submits an application for initial detention and evaluation pursuant to subsection 4 of section 632.305, a public mental health facility shall, and a private mental health facility may immediately accept such application and the respondent on a provisional basis, and the facility shall then evaluate the respondent’s condition and admit him for treatment or release him in accordance with the provisions of this chapter.
2. Whenever a peace officer applies for initial detention and evaluation pursuant to subsection 3 of section 632.305, the mental health facility may, but is not required to, accept the application and the respondent. If the facility accepts the application and the respondent, the facility shall evaluate the respondent’s condition and admit him for treatment or release him in accordance with the provisions of this chapter.
3. If the respondent is not accepted for admission by a facility providing ninety-six-hour evaluation and treatment, the facility shall immediately furnish transportation, if not otherwise available, to return the respondent to his place of residence or other appropriate place; provided, that in the case of a person transported to the facility by a peace officer or other governmental agency, such peace officer or agency shall furnish or arrange for such transportation. 4. The department may require, pursuant to an affiliation agreement and contract with a community-based service certified by the department to serve the catchment area where a respondent whose mental disorder consists of alcohol or drug abuse resides, that the service immediately accept the application and respondent engaging in alcohol or drug abuse on a provisional basis and that the service then evaluate such respondent’s condition and admit him for treatment for up to ninety-six hours, petition for further detention and treatment, or release him in accordance with the provisions of chapter 631, RSMo.
(L. 1980 H.B. 1724, A.L. 1982 H.B. 1565, A.L. 1985 S.B. 265)

632.315. Copies of admission application to be furnished. 
Any mental health facility accepting a respondent pursuant to section 632.310 shall be furnished a copy of the application for initial detention and evaluation. If a person is involuntarily detained in a mental health facility pursuant to section 632.310, no later than twenty-four hours after his arrival, excluding Saturdays, Sundays and legal holidays, the head of the mental health facility or the mental health coordinator shall file with the court the application, a copy of the notice required by section 632.325 and proof that the notice was given. The person’s designated attorney shall receive a copy of all documents. The head of the mental health facility shall send copies of all completed applications, whether accepted for admission or not, to the designated mental health coordinator for the region. (L. 1980 H.B. 1724)
CROSS REFERENCE:
Alcohol and drug abuse facilities, procedure applicable, RSMo 631.175

632.320. Time limits for certain procedures. 
1. Within three hours of the time at which the respondent arrives at a mental health facility he shall:
(1) Be seen by a mental health professional or registered professional nurse; and
(2) Be given a copy of the application for initial detention and evaluation, a notice of rights pursuant to section 632.325 and a notice giving the name, business address and telephone number of the attorney appointed to represent him; and
(3) Be provided assistance in contacting the appointed attorney or an attorney of his own choosing, if so requested.
2. Within eighteen hours after the respondent arrives at the mental health facility, he shall be examined by a licensed physician.
3. Within four days after the respondent arrives at the mental health facility, unless sooner released, the mental health coordinator shall meet with the respondent and explain his statutory rights under this chapter.
(L. 1980 H.B. 1724)

632.325. Information to be furnished to patient and others, when. 
If the respondent is accepted for evaluation or for evaluation and treatment pursuant to this chapter, he shall be advised, orally and in writing, of the information contained in subdivisions (1) through (11) of this section. The respondent’s guardian and, if possible and the respondent consents, a responsible member of his immediate family shall be advised, within eight hours either orally or in writing, of the information contained in subdivisions (1) through (11) of this section. The personnel of the mental health facility to which the respondent is taken or the mental health coordinator shall advise the aforementioned individuals that unless the respondent is released or voluntarily admits himself within ninety-six hours of the initial detention:
(1) He may be detained for ninety-six hours from the time of his initial detention to be evaluated and treated;
(2) Within the ninety-six hours, the head of the mental health facility or the mental health coordinator may file a petition to have him detained for an additional period not to exceed twenty-one days, after a court hearing;
(3) He will be given a judicial hearing within two judicial days after the day the petition for additional detention is filed;
(4) An attorney has been appointed who will represent him before and after the hearing and who will be notified as soon as possible; provided, however, that he also has the right to private counsel of his own choosing and at his own expense;
(5) He has the right to communicate with counsel at all reasonable times and to have assistance in contacting such counsel;
(6) The purpose of the evaluation is to determine whether he meets the criteria for civil detention under this chapter and that anything he says to personnel at the mental health facility may be used in making that determination, may result in involuntary detention proceedings being filed against him and may be used at the court hearing;
(7) He has the right to present evidence and to cross-examine witnesses who testify against him at the hearing;
(8) During the period prior to being examined by a licensed physician, he may refuse medication unless he presents an imminent likelihood of serious physical injury to himself or others;
(9) He has the right to refuse medication except for lifesaving treatment beginning twenty-four hours prior to the hearing for twenty-one-day detention;
(10) He has the right to request that the hearing be held in his county of residence if he is a resident of this state;
(11) He has the right to have an interpreter assist him to communicate, at the facility or during the hearing, or both, if he has impaired hearing or does not speak English.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.330. Additional detention and treatment may be requested–contents of petition. 
1. At the expiration of the ninety-six hour period, the respondent may be detained and treated involuntarily for an additional two judicial days only if the head of the mental health facility or a mental health coordinator either has filed a petition for additional inpatient detention and treatment not to exceed twenty-one days or has filed a petition for outpatient detention and treatment for a period not to exceed one hundred eighty days.
2. Within ninety-six hours following initial detention, the head of the facility or the mental health coordinator may file or cause to be filed either a petition for a twenty-one-day inpatient involuntary detention and treatment period or a petition for outpatient detention and treatment for a period not to exceed one hundred eighty days, provided he has reasonable cause to believe that the person is mentally ill and as a result presents a likelihood of serious harm to himself or others. The court shall serve the petition and list of prospective witnesses for the petitioner upon the respondent and his attorney at least twenty-four hours before the hearing. The head of the facility shall also notify the mental health coordinator if the petition is not filed by the mental health coordinator. The petition shall:
(1) Allege that the respondent, by reason of mental illness, presents a likelihood of serious harm to himself or to others;
(2) Allege that the respondent is in need of continued detention and treatment either on an inpatient basis or on an outpatient basis;
(3) Allege the specific behavior of the respondent or the facts which support such conclusion;
(4) Affirm that attempts were made to provide necessary care, treatment and services in the least restrictive environment to the respondent on a voluntary basis, but either the petitioner believes that the respondent lacks the capacity to voluntarily consent to care, treatment and services or the respondent refuses to voluntarily consent to care, treatment and services such that proceeding with a petition for the respondent’s civil detention in the least restrictive environment is necessary; (5) Allege that there will be appropriate support from family, friends, case managers or others during the period of outpatient detention and treatment in the community if such commitment is sought;
(6) Specify the mental health program that is appropriate to handle the respondent’s condition and that has agreed to accept the respondent;
(7) Specify the range of care, treatment and services that shall be provided to the respondent if the petition for further detention is sustained by the court;
(8) Name the entities that have agreed to fund and provide the specified interventions; and
(9) Be verified by a psychiatrist or by a licensed physician and a mental health professional who have examined the respondent.
3. The petitioner shall consider whether based on the respondent’s condition and treatment history, the respondent meets the criteria in chapter 475, RSMo, so that appointment of a full or limited guardian or conservator is appropriate for the court to consider, and if deemed so, the petitioner then shall proceed as specified in subsection 4 of this section.
4. If the head of the mental health facility, or his designee, or the mental health coordinator believes that the respondent, because of a mental illness or mental disorder, may be incapacitated or disabled as defined in chapter 475, RSMo, the head of the mental health facility or mental health coordinator shall cause a petition to be filed pursuant to section 475.060, RSMo, and section 475.061, RSMo, if applicable, with the court having probate jurisdiction as determined by section 475.035, RSMo. In addition, if the head of the mental health facility, his designee or the mental health coordinator believes it appropriate, he shall proceed with obtaining an order for the respondent’s temporary emergency detention as provided for in section 475.355, RSMo. Furthermore, the hearing on the petition filed pursuant to chapter 475, RSMo, shall be conducted pursuant to the requirements of section 475.075, RSMo, and other appropriate sections of chapter 475, RSMo, and shall be held within two judicial days after termination of the ninety-six-hour civil detention period unless continued for good cause shown. Nothing contained in this subsection shall restrict or prohibit the head of the mental health facility, his designee or the mental health coordinator from proceeding under the appropriate provisions of this chapter if the petition for guardianship or conservatorship is denied.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.335. Court procedures relating to continued detention or outpatient detention and treatment–continued detention may be ordered–patient’s rights relating thereto. 
1. The petition for additional inpatient detention and treatment not to exceed twenty-one days or the petition for outpatient detention and treatment not to exceed one hundred eighty days shall be filed with the court having probate jurisdiction. At the time of filing the petition, the court clerk shall set a date and time for the hearing which shall take place within two judicial days of the filing of the petition. The clerk shall promptly notify the respondent, his attorney, the petitioner and the petitioner’s attorney of the date and time for the hearing. The court shall not grant continuances except upon a showing of good and sufficient cause. If a continuance is granted, the court, in its discretion, may order the person released pending the hearing upon conditions prescribed by the court. The court may order the continued detention and treatment of the person at a mental health facility pending the continued hearing, and a copy of such order shall be furnished to the facility.
2. The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the respondent. Due consideration shall be given by the court to holding a hearing at the mental health facility. The respondent shall have the following rights in addition to those specified elsewhere:
(1) To be represented by an attorney;
(2) To present evidence on his own behalf;
(3) To cross-examine witnesses who testify against him;
(4) To remain silent;
(5) To view and copy all petitions and reports in the court file of his case;
(6) To have the hearing open or closed to the public as he elects;
(7) To be proceeded against according to the rules of evidence applicable to civil judicial proceedings;
(8) A hearing before a jury if requested by the patient or his attorney.
3. The respondent shall be present at the hearing, unless the respondent’s physical condition is such that he cannot be present in the courtroom or if the court determines that the respondent’s conduct in the courtroom is so disruptive that the proceedings cannot reasonably continue.
4. At the conclusion of the hearing, if the court finds, based upon clear and convincing evidence, that respondent, as the result of mental illness, presents a likelihood of serious harm to himself or to others, and that a mental health program appropriate to handle the respondent’s condition has agreed to accept him, the court shall order either that the respondent be detained for inpatient involuntary treatment in the least restrictive environment for a period not to exceed twenty-one days or be detained for outpatient detention and treatment under the supervision of a mental health program in the least restrictive environment for a period not to exceed one hundred eighty days.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.337. Immediate inpatient detention during court-ordered outpatient detention and treatment, procedure. 
1. When the court has ordered up to one hundred eighty days of outpatient detention and treatment pursuant to section 632.335 or 632.350 or 632.355, and the supervisory mental health program has good cause to believe that immediate detention in a more appropriate least restrictive environment is required because the respondent presents a likelihood of serious harm due to mental illness, the supervisory mental health program may direct that the respondent be detained for up to ninety- six hours at an appropriate mental health program that has agreed to accept the respondent and may authorize the sheriff to detain and transport the respondent to that mental health program. Detention for more than ninety- six hours shall be pursuant to section 632.330.
2. Evidence of detention for ninety-six-hour periods during the one hundred eighty-day outpatient detention and treatment may be considered by the court in determining additional periods of detention and treatment.
(L. 1996 S.B. 884 & 841)

632.340. Further additional detention or outpatient detention and treatment may be requested–hearing to be held, when–treatment plan to be presented. 
1. Before the expiration of the twenty-one-day inpatient detention and treatment period ordered pursuant to section 632.335, the court may order the respondent to be detained and treated involuntarily for an additional period not to exceed ninety inpatient days or may order the respondent to be detained for outpatient detention and treatment for a period not to exceed one hundred eighty days; provided, that:
(1) The respondent is mentally ill and continues to present a likelihood of serious harm to himself or others; and
(2) The court, after a hearing, orders the respondent detained and treated for the additional period.
2. If, within seventeen days of the court hearing described in section 632.335, the head of the mental health program or the mental health coordinator has reasonable cause to believe that the respondent is mentally ill and as a result presents a likelihood of serious harm to himself or others, and believes that further detention and treatment is necessary, he shall file, or cause to be filed, with the court a petition for ninety days additional detention and treatment or a petition for outpatient detention and treatment for a period not to exceed one hundred eighty days. The court shall immediately set a date and time for a hearing on the petition, which shall take place within four judicial days of the date of the filing of the petition. The court shall serve a copy of the petition and the notice of the date and time of the hearing upon the petitioner, the respondent, and their attorneys as promptly as possible, but not later than two judicial days after the filing of the petition. The petitioner shall also file with the court, for the court to serve upon the respondent’s attorney not later than two judicial days after the filing of the petition, a list of the proposed witnesses for the petitioner. The head of the mental health program shall notify the mental health coordinator if the petition is not filed by the mental health coordinator. The petition shall comply with the requirements of section 632.330, and an individualized treatment plan for the respondent shall be attached thereto.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.345. Physician or licensed psychologist to be appointed, qualifications –detention to be continued, how long. 
1. If requested by the respondent, the court shall appoint an available licensed physician or licensed psychologist to examine him and testify at the respondent’s request. If the respondent or his counsel so request, the court shall not appoint a physician or licensed psychologist who is on the staff of the program wherein the person is detained, and if the respondent is detained in a program operated by the department and respondent or his counsel so request, the court shall not appoint a physician or licensed psychologist who is an employee of the department.
2. The court may grant continuances but shall do so only upon a showing of good and sufficient cause.
3. The respondent shall continue to be detained and treated pending the hearing unless released by order of the court. If a continuance is granted, the court, in its discretion, may order respondent released upon conditions described by the court pending the hearing. If no order has been made within thirty days after the filing of the petition, not including extensions of time requested by the respondent and granted, the respondent shall be released.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.350. Conduct of hearing–jury question–result. 
1. The hearing for a ninety-day inpatient detention and treatment period or for outpatient detention and treatment for a period not to exceed one hundred eighty days shall be conducted in as informal a manner as may be consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the mental health of the respondent. If a jury trial is not requested, due consideration shall be given by the court to holding a hearing at the mental health program. The hearing shall be held in accordance with the provisions set forth in section 632.335.
2. The burden of proof at the hearing shall be by clear and convincing evidence and shall be upon the petitioner.
3. If the matter is tried before a jury, the jury shall determine and shall be instructed only upon the issues of whether or not the respondent is mentally ill and, as a result, presents a likelihood of serious harm to himself or others. The remaining procedures for the jury trial shall be as in other civil matters.
4. The respondent shall not be required to file an answer or other responsive pleading.
5. At the conclusion of the hearing, if the court or jury finds that the respondent, as the result of mental illness, presents a likelihood of serious harm to himself or to others, and the court finds that a program appropriate to handle the respondent’s condition has agreed to accept him, the court shall order the respondent to be detained for involuntary treatment in the least restrictive environment for a period not to exceed ninety days or for outpatient detention and treatment under the supervision of a mental health program in the least restrictive environment for a period not to exceed one hundred eighty days.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.355. Additional detention or period of outpatient detention and treatment may be ordered, when. 
1. At the expiration of the ninety-day inpatient commitment period ordered by the court pursuant to section 632.350, the respondent may be detained and treated as an involuntarily inpatient for an additional period of time not to exceed one year or such lesser period of time as determined by the court or may be detained for outpatient detention and treatment for a period of time not to exceed one hundred eighty days; provided, that:
(1) The respondent is mentally ill and continues to present a likelihood of serious harm to himself or to others; and
(2) The court after a hearing orders the person detained and treated for the additional period.
2. Within the ninety-day commitment period, the head of the mental health program or the mental health coordinator may file or cause to be filed, in compliance with the requirements of section 632.330, a petition for a one-year inpatient detention and treatment period or a petition for outpatient detention and treatment for a period not to exceed one hundred eighty days if he has reasonable cause to believe that the respondent is mentally ill and as a result presents a likelihood of serious harm to himself or others, and that further detention and treatment is necessary pursuant to an individualized treatment plan prepared by the program and filed with the court. Procedures specified in sections 632.340, 632.345 and 632.350 shall be followed.
3. At the conclusion of the hearing, if the court or jury finds that the respondent, as the result of mental illness, presents a likelihood of serious harm to himself or others, and the court finds that a program appropriate to handle the respondent’s condition has agreed to accept him, the court shall order that the respondent be detained for involuntary treatment in the least restrictive environment for a period not to exceed one year or for outpatient detention and treatment under the supervision of a mental health program in the least restrictive environment for a period not to exceed one hundred eighty days.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.360. Discharge of patient, when–procedure. 
At the end of any detention period ordered by the court under this chapter, the respondent shall be discharged unless a petition for further detention is filed and heard in the same manner as provided herein. Successive one-year detention periods, or successive one hundred eighty-day outpatient detention periods, are permissible on the same grounds and pursuant to the same procedures as the initial detention period. No order of civil detention under this chapter may exceed one year for an inpatient detention period or one hundred eighty days for an outpatient detention period
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.365. Where detention to take place. 
Notwithstanding any other provision of the law to the contrary, whenever a court orders a person detained for involuntary treatment in a mental health program operated by the department, the order of detention shall be to the custody of the director of the department, who shall determine where detention and involuntary treatment shall take place in the least restrictive environment, be it an inpatient or outpatient setting.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.370. Transfer of patient by department–hearing on transfer of minor to adult ward–consent required–notice to be given–considerations –transfer to federal facility, notice, restrictions. 
1. The department may transfer, or authorize the transfer of, an involuntary patient detained under this chapter, chapter 211, RSMo, chapter 475, RSMo, or chapter 552, RSMo, from one mental health program to another if the department determines that it would be consistent with the medical needs of the patient to do so. If a minor is transferred from a ward for minors to an adult ward, the department shall conduct a due process hearing within six days of such transfer during which hearing the head of the program shall have the burden to show that the transfer is appropriate for the medical needs of the minor. Whenever a patient is transferred, written notice thereof shall be given after obtaining the consent of the patient, his parent if he is a minor or his legal guardian to his legal guardian, parents and spouse, or, if none be known, his nearest known relative or friend. In all such transfers, due consideration shall be given to the relationship of the patient to his family, legal guardian or friends, so as to maintain relationships and encourage visits beneficial to the patient. The head of the mental health program shall notify the court ordering detention or commitment, the patient’s last known attorney of record and the mental health coordinator for the region, and if the person was committed pursuant to chapter 552, RSMo, to the prosecuting attorney of the jurisdiction where the person was tried and acquitted, of any transfer from one mental health facility to another. The prosecutor of the jurisdiction where the person was tried and acquitted shall use their best efforts to notify the victims of dangerous felonies. Notification by the appropriate person or agency by certified mail to the most current address provided by the victim shall constitute compliance with the victim notification requirement of this section. In the case of a patient committed under chapter 211, RSMo, the court, on its own motion, may hold a hearing on the transfer to determine whether such transfer is appropriate to the medical needs of the patient.
2. Upon receipt of a certificate of an agency of the United States that facilities are available for the care or treatment of any individual heretofore ordered involuntarily detained, treated and evaluated pursuant to this chapter in any facility for the care or treatment of the mentally ill, mentally retarded or developmentally disabled and that such individual is eligible for care or treatment in a hospital or institution of such agency, the department may cause his transfer to such agency of the United States for hospitalization. Upon effecting any such transfer, the court ordering hospitalization, the legal guardian, spouse and parents, or, if none be known, his nearest known relative or friend shall be notified thereof immediately by the department. No person shall be transferred to an agency of the United States if he is confined pursuant to a conviction for any felony or misdemeanor or if he has been acquitted of any felony or misdemeanor solely on the ground of mental illness, unless prior to transfer the court originally ordering confinement of such person enters an order for the transfer after appropriate motion and hearing. Any person transferred to an agency of the United States shall be deemed to be hospitalized by such agency pursuant to the original order of hospitalization.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.375. Patient to be evaluated, when–report to certain persons–court may consider continuation of detention. 
1. At least once every one hundred eighty days, the head of each mental health program shall have each respondent who is detained at the program for a one-year period under this chapter examined and evaluated to determine if the respondent continues to be mentally ill, and as a result presents a likelihood of serious harm to himself or others. The court, the mental health coordinator for the region, the respondent and the respondent’s attorney shall be provided copies of the report of the examination and evaluation described by this section and the respondent’s individualized treatment plan.
2. Upon receipt of the report, the court may, upon its own motion, or shall, upon the motion of the respondent, order a hearing to be held as to the need for continued detention and involuntary treatment. At the conclusion of the hearing, the court may order:
(1) The discharge of the respondent; or
(2) An appropriate least restrictive course of detention and involuntary treatment; or
(3) The respondent to be remanded to the mental health program for the unexpired portion of the original commitment order.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.380. Provisions of chapter not to apply to certain persons. 
Persons who are mentally retarded, developmentally disabled, senile or impaired by alcoholism or drug abuse shall not be detained judicially under this chapter, unless they are also mentally ill and as a result present likelihood of serious harm to themselves or to others. Such persons may, however, be committed upon court order under this chapter and the provisions of chapter 475, RSMo, relating to incapacitated persons, pursuant to chapter 211, RSMo, relating to juveniles, or may be admitted as voluntary patients under section 632.105 or 632.120.
(L. 1980 H.B. 1724, A.L. 1983 S.B. 44 & 45, A.L. 1996 S.B. 884 & 841)

632.385. Patient to be placed outside facility, when–conditions–duration –furloughs–modification of orders–notice requirements. 
1. The head of a mental health facility shall release a patient, whether voluntary or involuntary, from the facility to the least restrictive environment, including referral to and subsequent placement in the placement program of the department, when he believes that such release is in the best interests of the patient. Release to the least restrictive environment shall include provisions for continuing responsibility to and by the facility.
2. Release to the least restrictive environment may be conditioned on the patient receiving outpatient care as prescribed by the head of the mental health facility from which the patient is being released. The period of treatment in the least restrictive environment shall not exceed the period of one year.
3. The facility or agency which is to provide treatment in the least restrictive environment must agree in writing to assume such responsibility. A copy of the conditions for release shall be given to the patient, to the probate division of the circuit court having jurisdiction and the mental health facility providing treatment.
4. The head of a mental health facility may permit a respondent detained for treatment to leave the facility for prescribed short periods on trial visit during his detention subject to conditions prescribed by the head of the mental health facility.
5. The head of the mental health facility providing treatment may modify the conditions for continued release from the facility to the least restrictive environment when such modification is in the best interest of the patient. Notification of any changes shall be sent to the patient and to the court within ninety-six hours if the patient is involuntarily detained under this chapter. Upon a receipt of a notification returning the patient to the facility as an inpatient, the committing court shall, if necessary, order the sheriff or other law enforcement official to apprehend and transport the patient to the facility. The committing court may, on its own motion or shall upon the respondent’s motion, order a hearing to be held on the need for such change.
(L. 1980 H.B. 1724, A.L. 1988 H.B. 971)

632.390. Head of program to release certain patients–notification to interested parties–involuntary patient may become voluntary, notification to interested parties.
1. The head of a mental health program shall release any person who is involuntarily detained under this chapter when, in his opinion, the person is no longer mentally ill or, although mentally ill, does not present a likelihood of serious harm to himself or others, even though the detention period has not expired. 2. Whenever the head of a mental health program discharges a person prior to the expiration of the detention order, he shall notify in writing the court and the mental health coordinator.
3. Whenever a respondent voluntarily admits himself and the head of a mental health program accepts the admission application submitted by respondent in good faith under section 632.105, the respondent’s involuntary detention shall cease, and the head of the program shall notify, in writing, the court and the mental health coordinator.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.392. Release of patient involuntarily detained, duties of department –educational materials–disclosure of confidential information –“care provider” defined. 
1. Notwithstanding the provisions of subsection 1 of section 630.140, RSMo, a mental health program and any treating physician, upon release of a patient who was committed or who is civilly detained and consents to voluntary treatment during the course of the inpatient stay pursuant to section 632.150, 632.155, 632.300, 632.305, 632.330, 632.335, 632.340, 632.350, 632.355 or 632.375:
(1) Shall provide to the patient and his care provider a written packet of educational information developed and supplied by the department of mental health describing symptoms of common mental illnesses, early warning signs of decompensation, and availability of other education, community and statewide services. The packet shall also include the telephone number of the department of mental health information line and information specific to the laws and procedures addressing civil detention and guardianship;
(2) May disclose confidential treatment information to the primary care provider or care providers, when such information is medically necessary for the provision of appropriate health care or treatment by the care provider or is related to the safety of the patient or care provider.
2. Prior to disclosure of the information specified under subdivision (2) of subsection 1 of this section, the mental health facility shall provide written notice to the patient; request in writing the consent of the patient; work with the patient and care provider to encourage and secure appropriate patient authorization; function as a mediator, negotiating the boundaries of confidentiality to meet the needs of the client and care provider; and work with the client to stress the importance of keeping the care provider informed and involved with his treatment process. If the patient refuses to consent and the treating physician deems the information is medically necessary for the appropriate provision of health care or treatment by the care provider or is related to the safety of the patient or care provider, the information may still be released to the appropriate care provider. The reason for the intended disclosure, the specific information to be released and the persons to whom the disclosure is to be made, even if consent has not been obtained, will be provided to the client and care provider. All these procedures shall be documented by the treating physician in the client record, including a specific notation as to whether client consent was given.
3. As used in this section, the term “care provider” means the person or persons who can demonstrate that they are primarily responsible for the health care of the person with a mental illness. The term does not apply to any person providing care through hospitals, nursing homes, group homes or any other such facility.
(L. 1996 S.B. 884 & 841)

632.395. Court may order transfer of custody to federal facility, when–head of federal facility to be successor administrator–court to retain jurisdiction–orders from courts of other states to be observed in this state. 
1. If an individual ordered to be involuntarily detained or committed, treated and evaluated pursuant to this chapter is eligible for hospital care or treatment by any agency of the United States, the court, upon receipt of a certificate from such agency showing that facilities are available and that the individual is eligible for care or treatment therein, may order him to be placed in the custody of such agency for hospitalization. When any individual is admitted pursuant to the order of the court to any hospital or institution operated by any agency of the United States within or without this state, he shall be subject to the rules and regulations of such agency. The chief officer of any hospital or institution operated by such agency and in which the individual is so hospitalized shall, with respect to such individual, be vested with the same powers as the heads of hospitals or the division within this state have with respect to detention, custody, transfer, conditional release and discharge of patients. Jurisdiction is retained in the appropriate courts of this state at any time to inquire into the mental condition of an individual so hospitalized and to determine the necessity for continuance of his hospitalization, and every order of hospitalization issued pursuant to this section is so conditioned.
2. An order of a court of competent jurisdiction of another state, or of the District of Columbia, authorizing hospitalization of an individual by any agency of the United States shall have the same force and effect as to the individual while in this state as in the jurisdiction in which is situated the court entering the order, and the courts of the state or District of Columbia issuing the order shall be deemed to have retained jurisdiction of the individual so hospitalized for the purpose of inquiring into his mental condition and of determining the necessity for continuance of his hospitalization, as is provided in subsection 1 of this section with respect to individuals ordered hospitalized by the courts of this state. Consent is hereby given to the application of the law of the state or District of Columbia in which is located the court issuing the order for hospitalization with respect to the authority of the chief officer of any hospital or institution operated in this state by any agency of the United States to retain custody, transfer, conditional release or discharge the individual hospitalized.
(L. 1980 H.B. 1724)

632.400. Reexamination of detained person. 
Any respondent ordered detained for ninety-day or one-year periods of involuntary inpatient treatment or ordered detained for a period of up to one hundred eighty days of outpatient detention and treatment under this chapter shall be entitled to a reexamination of the order for his detention on his own motion, or that of his legal guardian, parent, spouse, relative, friend or attorney to the court. Upon receipt of the motion, the court shall conduct or cause to be conducted by a special commissioner proceedings in accordance with section 632.340.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.405. Prosecutor’s duties. 
It shall be the duty of the prosecuting attorney of the county wherein a hearing described under this chapter takes place to represent the petitioner and to file and prosecute in court all petitions for detention, evaluation and treatment pursuant to this chapter. Such duty shall be fulfilled by the county counselor in counties having a county counselor and by the circuit attorney in any city not within a county.
(L. 1980 H.B. 1724)
CROSS REFERENCE:
Alcohol and drug abuse facility detention, prosecutor’s duties, RSMo 631.175

632.410. Venue–change of jurisdiction. 
Venue for proceedings for involuntary detentions pursuant to the provisions of this chapter shall be in the court having probate jurisdiction in the county in which the mental health program is located wherein the respondent is detained; provided, however, that if the respondent is a resident of this state and makes application for the hearing to be held in his county of residence, the court shall order the proceedings, with all papers, files and transcripts of the proceedings, to be transferred to the court having probate jurisdiction in the respondent’s county of residence. Once a court has assumed jurisdiction with respect to involuntary detention proceedings, no other court shall assume jurisdiction until the court having prior jurisdiction has transferred jurisdiction and all papers, files, and transcripts. If the court having jurisdiction receives notice that a respondent has been transferred to a mental health program in another county, the court shall transfer jurisdiction, along with all papers, files and transcripts, to the court in the county where the respondent has been transferred.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)

632.415. Court to maintain register of attorneys available to represent patients–state to pay certain attorney’s fees. 
1. The judge having probate jurisdiction in each county where a mental health program is located shall prepare and maintain a current register of attorneys who have agreed to be appointed to represent respondents against whom involuntary civil detention proceedings have been instituted in such county. The judge may choose lawyers who are paid by any public or private agency or other lawyers who are appointed to the register. The register shall be provided to the mental health coordinator for the area which includes the county for which the list was prepared. A new register shall be provided to the mental health coordinator each time a new attorney is added.
2. If the judge finds that the respondent is unable to pay attorney’s fees for the services rendered in the proceedings, the judge shall allow a reasonable attorney’s fee for the services, which fee shall be assessed as costs and paid together with all other costs in the proceeding by the state, in accordance with rules and regulations promulgated by the state court administrator, from funds appropriated to the office of administration for such purposes provided that no attorney’s fees shall be allowed for services rendered by any attorney who is a salaried employee of a public agency or a private agency which receives public funds.
(L. 1980 H.B. 1724, A.L. 1996 S.B. 884 & 841)
CROSS REFERENCE:
Alcohol and drug abuse, respondent’s rights, court’s duties, RSMo 631.175

632.420. Certain examining physicians to be paid by state. 
The court having probate jurisdiction in appointing licensed physicians pursuant to section 632.345 shall choose, if available, physicians who have agreed to serve without fee or physicians paid by any private or public agency, if they are found suitable; provided, that if the court finds no suitable physicians from such sources, the court shall appoint an available licensed physician and he shall be paid a reasonable fee, as determined by the court, by the state from funds appropriated to the office of administration for this purpose.
(L. 1980 H.B. 1724)

632.425. Physician-patient, psychologist-patient privileges waived in detention proceedings. 
The physician-patient privilege recognized by section 491.060, RSMo, and the psychologist-patient privilege recognized by section 337.055, RSMo, shall be deemed waived in detention proceedings under this chapter. The fact that such privileges have been waived pursuant to this section does not by itself waive the privileges in any other proceeding, civil or criminal. The waiver of the privileges shall extend only to that evidence which is directly material and relevant to detention proceedings. (L. 1980 H.B. 1724)
CROSS REFERENCE:
Alcohol and drug abuse, detention proceedings, privileges waived, RSMo 631.175

632.430. Appeals–to have priority–attorney general to be notified and to represent state. 
1. Appeals from court orders made under this chapter may be made by the respondent or by the petitioner to the appropriate appellate court pursuant to the rules of civil procedure of the supreme court of Missouri pertaining to appeals. Such appeal shall have priority on the docket of the appellate court and shall be expedited in all respects. The court shall notify the attorney general’s office whenever an appeal is filed under this subsection, and the attorney general shall represent the state when it is a party to such appeal.
2. A motion to stay any order restricting an individual’s liberty may be filed in either the court or the appropriate appellate court. A stay order shall not be granted in any case where the court finds that the person is so mentally ill that there is an imminent likelihood of serious physical harm to himself or others if he is not detained or treated pending appeal. Any refusal to grant a stay by the court may be reviewed by the appropriate appellate court on motion.
(L. 1980 H.B. 1724)

632.435. Habeas corpus. 
Any person detained under this chapter shall be entitled to apply for a writ of habeas corpus.
(L. 1980 H.B. 1724)
CROSS REFERENCE:
Alcohol and drug abuse detention, right of application for writ of habeas corpus, RSMo 631.175

632.440. No liability for health care professionals, public officials and certain peace officers. 
No officer of a public or private agency, mental health facility or mental health program; no head, attending staff or consultant of any such agency, facility or mental health program; no mental health coordinator, registered professional nurse, licensed physician, mental health professional nor any other public official performing functions necessary for the administration of this chapter; no peace officer responsible for detaining a person pursuant to this chapter; and no peace officer responsible for detaining or transporting, or both, any person upon the request of any mental health coordinator pursuant to section 632.300 or 632.305 or acting pursuant to the request of a guardian who is acting pursuant to chapter 475, RSMo, or upon the request of the head of any supervisory mental health program who is acting pursuant to section 632.337, regardless of whether such peace officer is outside the jurisdiction for which he serves as a peace officer during the course of such detention or transportation, or both, shall be civilly liable for detaining, transporting, conditionally releasing or discharging a person pursuant to this chapter or chapter 475, RSMo, at or before the end of the period for which the person was admitted or detained for evaluation or treatment so long as such duties were performed in good faith and without gross negligence.
(L. 1980 H.B. 1724, A.L. 1983 H.B. 801, A.L. 1996 S.B. 884 & 841)
CROSS REFERENCE:
Alcohol and drug abuse treatment facility, no liability for public officials and certain peace officers, RSMo 631.175

632.445. No liability for petitioners. 
No person making or filing an application alleging that a person should be involuntarily detained, certified or committed, treated or evaluated pursuant to this chapter shall be rendered civilly or criminally liable if the application was made and filed in good faith.
(L. 1980 H.B. 1724)
CROSS REFERENCE:
Alcohol and drug abuse detention, no liability for petitioners, RSMo 631.175

632.450. Representation by attorney required–duties of attorney. 
1. An attorney shall be appointed to represent the respondent in all judicial proceedings under this chapter, including appeal, unless relieved by the courts for good cause shown.
2. The attorneys shall personally contact the respondent within two days of the appointment and meet with the respondent in person as soon as is reasonably possible after the appointment to advise the respondent regarding the proceedings.
3. The attorney shall fully advise the respondent, if the respondent is not fully discharged by the courts, of the right to appeal and regarding the respondent’s rights and interests after detention.
(L. 1980 H.B. 1724)
CROSS REFERENCE:
Alcohol and drug abuse, representation by attorney, duties of attorney, RSMo 631.175

632.455. Patient, absent without permission, return may be requested, when. 
1. If requested to do so by the head of a mental health program, the sheriff of the county where a patient absent without authorization is found shall apprehend and return him to the program.
2. The head of the program may request the return of an absent patient under subsection 1 of this section only under one or more of the following circumstances:
(1) The patient is a minor whose admission was applied for by his parent or legal custodian, who has not requested the minor patient’s release;
(2) The patient is a minor under jurisdiction of the juvenile court;
(3) The patient has been declared legally incapacitated and his guardian has not requested his release;
(4) The patient was committed to the department under chapter 552, RSMo, or this chapter;
(5) The patient’s condition is of such a nature that, for the protection of the patient or others, the head of the program determines that the patient’s return to the program is necessary as noted in the patient’s records, in which case civil detention procedures shall be initiated upon return to the program.
(L. 1982 H.B. 1565, A.L. 1996 S.B. 884 & 841)

632.475. Sexual psychopaths committed before August 13, 1980, effect –application for release, hearing procedure–law officers to be given notice of probation or discharge. 
1. Persons committed to the department as criminal sexual psychopaths under statutes in effect before August 13, 1980, shall remain committed under those statutes, except as provided in this section.
2. At any time after commitment, a written application setting forth facts showing that the person committed as a criminal sexual psychopath has improved to the extent that his release will not be incompatible to the welfare of society may be filed with the committing court. The court shall issue an order returning the person to the jurisdiction of the court for a hearing. This hearing shall in all respects be like the original hearing under the statutes in effect before August 13, 1980, to determine the mental condition of the defendant. Following the hearing, the court shall issue an order to cause the defendant either to be placed on probation for a minimum period of three years, or to be returned to the department to continue his commitment; except that upon the expiration of the probationary period and after further hearing by the court, the person may be discharged. When the defendant is placed on probation or discharged, notice of such action shall be given immediately to the law enforcement authorities of the city and county of residence of the defendant, and the city and county where the defendant is to be released. (L. 1980 H.B. 1724, A.L. 1982 S.B. 630)
CROSS REFERENCE:
Conviction of offense, on release registration requirements and penalty for failure to comply (Megan’s Law), RSMo 589.400 to 589.425

632.480. Definitions. 
As used in sections 632.480 to 632.513, the following terms mean:
(1) “Agency with jurisdiction”, the department of corrections or the department of mental health;
(2) “Mental abnormality”, a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others;
(3) “Predatory”, acts directed towards individuals, including family members, for the primary purpose of victimization;
(4) “Sexually violent offense”, the felonies of forcible rape, rape, statutory rape in the first degree, forcible sodomy, sodomy, statutory sodomy in the first degree, or an attempt to commit any of the preceding crimes, or child molestation in the first or second degree, sexual abuse, sexual assault, deviate sexual assault, or the act of abuse of a child as defined in subdivision (1) of subsection 1 of section 568.060, RSMo, which involves sexual contact, and as defined in subdivision (2) of subsection 1 of section 568.060, RSMo;
(5) “Sexually violent predator”, any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense; or
(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980.
(L. 1998 H.B. 1405, et al. § 1, A.L. 2001 S.B. 267)
(2004) Alcohol dependence may be considered as mental abnormality under section requiring commitment of offender as sexually violent predator. In re Care and Treatment of Burgess, 147 S.W.3d 822 (Mo.App. S.D.).

632.483. Notice to attorney general, when–contents of notice–immunity from liability, when–multidisciplinary team established–prosecutors’ review committee established. 
1. When it appears that a person may meet the criteria of a sexually violent predator, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in subsection 4 of this section. Written notice shall be given:
(1) Within three hundred sixty days prior to the anticipated release from a correctional center of the department of corrections of a person who has been convicted of a sexually violent offense, except that in the case of persons who are returned to prison for no more than one hundred eighty days as a result of revocation of
post-release supervision, written notice shall be given as soon as practicable following the person’s readmission to prison;
(2) At any time prior to the release of a person who has been found not guilty by reason of mental disease or defect of a sexually violent offense; or
(3) At any time prior to the release of a person who was committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980.
2. The agency with jurisdiction shall provide the attorney general and the multidisciplinary team established in subsection 4 of this section with the following:
(1) The person’s name, identifying factors, anticipated future residence and offense history;
(2) Documentation of institutional adjustment and any treatment received or refused, including the Missouri sexual offender program; and
(3) A determination by either a psychiatrist or a psychologist as defined in section 632.005 as to whether the person meets the definition of a sexually violent predator.
3. The agency with jurisdiction, its employees, officials, members of the multidisciplinary team established in subsection 4 of this section, members of the prosecutor’s review committee appointed as provided in subsection 5 of this section and individuals contracting or appointed to perform services hereunder shall be immune from liability for any conduct performed in good faith and without gross negligence pursuant to the provisions of sections 632.480 to 632.513.
4. The director of the department of mental health and the director of the department of corrections shall establish a multidisciplinary team consisting of no more than seven members, at least one from the department of corrections and the department of mental health, and which may include individuals from other state agencies to review available records of each person referred to such team pursuant to subsection 1 of this section. The team, within thirty days of receiving notice, shall assess whether or not the person meets the definition of a sexually violent predator. The team shall notify the attorney general of its assessment.
5. The prosecutors coordinators training council established pursuant to section 56.760, RSMo, shall appoint a five-member prosecutors’ review committee composed of a cross section of county prosecutors from urban and rural counties. No more than three shall be from urban counties, and one member shall be the prosecuting attorney of the county in which the person was convicted or committed pursuant to chapter 552, RSMo. The committee shall review the records of each person referred to the attorney general pursuant to subsection 1 of this section. The prosecutors’ review committee shall make a determination of whether or not the person meets the definition of a sexually violent predator. The determination of the prosecutors’ review committee or any member pursuant to this section or section 632.484 shall not be admissible evidence in any proceeding to prove whether or not the person is a sexually violent predator. The assessment of the multidisciplinary team shall be made available to the attorney general and the prosecutors’ review committee.
(L. 1998 H.B. 1405, et al. § 2, A.L. 1999 H.B. 852, A.L. 2001 S.B. 87 merged with S.B. 267, A.L. 2002 S.B. 969, et al.)

632.484. Detention and evaluation of persons alleged to be sexually violent predators–duties of attorney general and department of mental health. 
1. When the attorney general receives written notice from any law enforcement agency that a person, who has pled guilty to or been convicted of a sexually violent offense and who is not presently in the physical custody of an agency with jurisdiction has committed a recent overt act, the attorney general may file a petition for detention and evaluation with the probate division of the court in which the person was convicted, or committed pursuant to chapter 552, RSMo, alleging the respondent may meet the definition of a sexually violent predator and should be detained for evaluation for a period of up to nine days. The written notice shall include the previous conviction record of the person, a description of the recent overt act, if applicable, and any other evidence which tends to show the person to be a sexually violent predator. The attorney general shall provide notice of the petition to the prosecuting attorney of the county where the petition was filed.
2. Upon a determination by the court that the person may meet the definition of a sexually violent predator, the court shall order the detention and transport of such person to a secure facility to be determined by the department of mental health. The attorney general shall immediately give written notice of such to the department of mental health.
3. Upon receiving physical custody of the person and written notice pursuant to subsection 2 of this section, the department of mental health shall, through either a psychiatrist or psychologist as defined in section 632.005, make a determination whether or not the person meets the definition of a sexually violent predator. The department of mental health shall, within seven days of receiving physical custody of the person, provide the attorney general with a written report of the results of its investigation and evaluation. The attorney general shall provide any available records of the person that are retained by the department of corrections to the department of mental health for the purposes of this section. If the department of mental health is unable to make a determination within seven days, the attorney general may request an additional detention of ninety-six hours from the court for good cause shown.
4. If the department determines that the person may meet the definition of a sexually violent predator, the attorney general shall provide the results of the investigation and evaluation to the prosecutors’ review committee. The prosecutors’ review committee shall, by majority vote, determine whether or not the person meets the definition of a sexually violent predator within twenty-four hours of written notice from the attorney general’s office. If the prosecutors’ review committee determines that the person meets the definition of a sexually violent predator, the prosecutors’ review committee shall provide written notice to the attorney general of its determination. The attorney general may file a petition pursuant to section 632.486 within forty-eight hours after obtaining the results from the department. 5. For the purposes of this section “recent overt act” means any act that creates a reasonable apprehension of harm of a sexually violent nature.
(L. 1999 H.B. 852, A.L. 2006 H.B. 1698, et al., A.L. 2007 S.B. 613 Revision)

632.486. Petition filed by attorney general, when–copy of multidisciplinary team’s assessment to be filed with petition. 
When it appears that the person presently confined may be a sexually violent predator and the prosecutor’s review committee appointed as provided in subsection 5 of section 632.483 has determined by a majority vote, that the person meets the definition of a sexually violent predator, the attorney general may file a petition, in the probate division of the circuit court in which the person was convicted, or committed pursuant to chapter 552, RSMo, within forty-five days of the date the attorney general received the written notice by the agency with jurisdiction as provided in subsection 1 of section 632.483, alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation. A copy of the assessment of the multidisciplinary team must be filed with the petition.
(L. 1998 H.B. 1405, et al. § 3, A.L. 1999 H.B. 852, A.L. 2001 S.B. 87)

632.489. Probable cause determined–sexually violent predator taken into custody, when–hearing, procedure–examination by department of mental health. 
1. Upon filing a petition pursuant to section 632.484 or 632.486, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such probable cause determination is made, the judge shall direct that person be taken into custody and direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility to house the person under the provisions of section 632.495.
2. Within seventy-two hours after a person is taken into custody pursuant to subsection 1 of this section, excluding Saturdays, Sundays and legal holidays, such person shall be provided with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the detained person is a sexually violent predator. At this hearing the court shall:
(1) Verify the detainee’s identity; and
(2) Determine whether probable cause exists to believe that the person is a sexually violent predator. The state may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.
3. At the probable cause hearing as provided in subsection 2 of this section, the detained person shall have the following rights in addition to the rights previously specified:
(1) To be represented by counsel;
(2) To present evidence on such person’s behalf;
(3) To cross-examine witnesses who testify against such person; and
(4) To view and copy all petitions and reports in the court file, including the assessment of the multidisciplinary team.
4. If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail, for an evaluation as to whether the person is a sexually violent predator. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility to house the person. The court shall direct the director of the department of mental health to have the person examined by a psychiatrist or psychologist as defined in section 632.005 who was not a member of the multidisciplinary team that previously reviewed the person’s records. In addition, such person may be examined by a consenting psychiatrist or psychologist of the person’s choice at the person’s own expense. Any examination shall be conducted in the facility in which the person is confined. Any examinations ordered shall be made at such time and under such conditions as the court deems proper; except that, if the order directs the director of the department of mental health to have the person examined, the director shall determine the time, place and conditions under which the examination shall be conducted. The psychiatrist or psychologist conducting such an examination shall be authorized to interview family and associates of the person being examined, as well as victims and witnesses of the person’s offense or offenses, for use in the examination unless the court for good cause orders otherwise. The psychiatrist or psychologist shall have access to all materials provided to and considered by the multidisciplinary team and to any police reports related to sexual offenses committed by the person being examined. Any examination performed pursuant to this section shall be completed and filed with the court within sixty days of the date the order is received by the director or other evaluator unless the court for good cause orders otherwise. One examination shall be provided at no charge by the department. All costs of any subsequent evaluations shall be assessed to the party requesting the evaluation.
(L. 1998 H.B. 1405, et al. § 4, A.L. 1999 H.B. 852, A.L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.492. Trial–procedure–assistance of counsel, right to jury, when. 
Within sixty days after the completion of any examination held pursuant to section 632.489, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of the proceedings pursuant to sections 632.480 to 632.513, any person subject to sections 632.480 to 632.513 shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist such person. The person, the attorney general, or the judge shall have the right to demand that the trial be before a jury. If the trial is held before a jury, the judge shall instruct the jury that if it finds that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment. If no demand for a jury is made, the trial shall be before the court. The court shall conduct all trials pursuant to this section in open court, except as otherwise provided for by the child victim witness protection law pursuant to sections 491.675 to 491.705, RSMo. (L. 1998 H.B. 1405, et al. § 5, A.L. 1999 H.B. 852 merged with S.B. 1, et al., A.L. 2001 S.B. 267)

632.495. Unanimous verdict required–offender committed to custody of department of mental health, when–release, when–mistrial procedures. 
1. The court or jury shall determine whether, by clear and convincing evidence, the person is a sexually violent predator. If such determination that the person is a sexually violent predator is made by a jury, such determination shall be by unanimous verdict of such jury. Any determination as to whether a person is a sexually violent predator may be appealed.
2. If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment until such time as the person’s mental abnormality has so changed that the person is safe to be at large. Such control, care and treatment shall be provided by the department of mental health.
3. At all times, persons ordered to the department of mental health after a determination by the court that such persons may meet the definition of a sexually violent predator, persons ordered to the department of mental health after a finding of probable cause under section 632.489, and persons committed for control, care and treatment by the department of mental health pursuant to sections 632.480 to 632.513 shall be kept in a secure facility designated by the director of the department of mental health and such persons shall be segregated at all times from any other patient under the supervision of the director of the department of mental health. The department of mental health shall not place or house a person ordered to the department of mental health after a determination by the court that such person may meet the definition of a sexually violent predator, a person ordered to the department of mental health after a finding of probable cause under section 632.489, or a person committed for control, care, and treatment by the department of mental health, pursuant to sections 632.480 to 632.513, with other mental health patients. The provisions of this subsection shall not apply to a person who has been conditionally released under section 632.505.
4. The department of mental health is authorized to enter into an interagency agreement with the department of corrections for the confinement of such persons. Such persons who are in the confinement of the department of corrections pursuant to an interagency agreement shall be housed and managed separately from offenders in the custody of the department of corrections, and except for occasional instances of supervised incidental contact, shall be segregated from such offenders.
5. If the court or jury is not satisfied by clear and convincing evidence that the person is a sexually violent predator, the court shall direct the person’s release. 6. Upon a mistrial, the court shall direct that the person be held at an appropriate secure facility, including, but not limited to, a county jail, until another trial is conducted. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility to house the person. Any subsequent trial following a mistrial shall be held within ninety days of the previous trial, unless such subsequent trial is continued as provided in section 632.492.
(L. 1998 H.B. 1405, et al. § 6, A.L. 1999 H.B. 852, A.L. 2001 S.B. 267, A.L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.498. Annual examination of mental condition, not required, when–annual review by the court–petition for release, hearing, procedures (when director disapproves). 
1. Each person committed pursuant to sections 632.480 to 632.513 shall have a current examination of the person’s mental condition made once every year by the director of the department of mental health or designee. The yearly report shall be provided to the court that committed the person pursuant to sections 632.480 to 632.513. The court shall conduct an annual review of the status of the committed person. The court shall not conduct an annual review of a person’s status if he or she has been conditionally released pursuant to section 632.505.
2. Nothing contained in sections 632.480 to 632.513 shall prohibit the person from otherwise petitioning the court for release. The director of the department of mental health shall provide the committed person who has not been conditionally released with an annual written notice of the person’s right to petition the court for release over the director’s objection. The notice shall contain a waiver of rights. The director shall forward the notice and waiver form to the court with the annual report.
3. If the committed person petitions the court for conditional release over the director’s objection, the petition shall be served upon the court that committed the person, the director of the department of mental health, the head of the facility housing the person, and the attorney general.
4. The committed person shall have a right to have an attorney represent the person at the hearing but the person is not entitled to be present at the hearing. If the court at the hearing determines by a preponderance of the evidence that the person no longer suffers from a mental abnormality that makes the person likely to engage in acts of sexual violence if released, then the court shall set a trial on the issue.
5. The trial shall be governed by the following provisions:
(1) The committed person shall be entitled to be present and entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding;
(2) The attorney general shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by a psychiatrist or psychologist not employed by the department of mental health or the department of corrections. In addition, the person may be examined by a consenting psychiatrist or psychologist of the person’s choice at the person’s own expense;
(3) The burden of proof at the trial shall be upon the state to prove by clear and convincing evidence that the committed person’s mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence. If such determination is made by a jury, the verdict must be unanimous;
(4) If the court or jury finds that the person’s mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence, the person shall remain in the custody of the department of mental health in a secure facility designated by the director of the department of mental health. If the court or jury finds that the person’s mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the person shall be conditionally released as provided in section 632.505.
(L. 1998 H.B. 1405, et al. § 7, A.L. 2004 S.B. 1211, A.L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.501. Petition for release–hearing (when director approves). 
If the director of the department of mental health determines that the person’s mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the director shall authorize the person to petition the court for release. The petition shall be served upon the court that committed the person, the director of the department of mental health, the head of the facility housing the person, and the attorney general. The hearing and trial, if any, shall be conducted according to the provisions of section 632.498.
(L. 1998 H.B. 1405, et al. § 8, A.L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.504. Subsequent petitions for release–approval or denial procedures. 
Nothing in sections 632.480 to 632.513 shall prohibit a person from filing a petition for release pursuant to sections 632.480 to 632.513. However, if a person has previously filed a petition for release without the director’s approval and the court determined either upon review of the petition or following a hearing that the petitioner’s petition was frivolous or that the petitioner’s condition had not so changed that the person was safe to be at large, then the court shall deny the subsequent petition unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from committed persons without the director’s approval, the court shall endeavor whenever possible to review the petition and determine if the petition is based upon frivolous grounds and if so shall deny the petition without a hearing.
(L. 1998 H.B. 1405, et al. § 9, A.L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.505. Conditional release–interagency agreements for supervision, plan–court review of plan, order, conditions–copy of order–continuing control and care–modifications–violations–agreements with private entities–fee, rulemaking authority–escape. 
1. Upon determination by a court or jury that the person’s mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the court shall place the person on conditional release pursuant to the terms of this section. The primary purpose of conditional release is to provide outpatient treatment and monitoring to prevent the person’s condition from deteriorating to the degree that the person would need to be returned to a secure facility designated by the director of the department of mental health.
2. The department of mental health is authorized to enter into an interagency agreement with the department of corrections for the supervision of persons granted a conditional release by the court. In conjunction with the department of corrections, the department of mental health shall develop a conditional release plan which contains appropriate conditions for the person to be released. The plan shall address the person’s need for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol and drug treatment. The department of mental health shall submit the proposed plan for conditional release to the court.
3. The court shall review the plan and determine the conditions that it deems necessary to meet the person’s need for treatment and supervision and to protect the safety of the public. The court shall order that the person shall be subject to the following conditions and other conditions as deemed necessary:
(1) Maintain a residence approved by the department of mental health and not change residence unless approved by the department of mental health;
(2) Maintain employment unless engaged in other structured activity approved by the department of mental health;
(3) Obey all federal and state laws;
(4) Not possess a firearm or dangerous weapon; (5) Not be employed or voluntarily participate in an activity that involves contact with children without approval of the department of mental health;
(6) Not consume alcohol or use a controlled substance except as prescribed by a treating physician and to submit, upon request, to any procedure designed to test for alcohol or controlled substance use;
(7) Not associate with any person who has been convicted of a felony unless approved by the department of mental health;
(8) Not leave the state without permission of the department of mental health;
(9) Not have contact with specific persons, including but not limited to, the victim or victim’s family, as directed by the department of mental health;
(10) Not have any contact with any child without specific approval by the department of mental health;
(11) Not possess material that is pornographic, sexually oriented, or sexually stimulating;
(12) Not enter a business providing sexually stimulating or sexually oriented entertainment; (13) Submit to a polygraph, plethysmograph, or other electronic or behavioral monitoring or assessment;
(14) Submit to electronic monitoring which may be based on a global positioning system or other technology which identifies and records a person’s location at all times;
(15) Attend and fully participate in assessment and treatment as directed by the department of mental health;
(16) Take all psychiatric medications as prescribed by a treating physician;
(17) Authorize the department of mental health to access and obtain copies of confidential records pertaining to evaluation, counseling, treatment, and other such records and provide the consent necessary for the release of any such records;
(18) Pay fees to the department of mental health and the department of corrections to cover the costs of services and monitoring;
(19) Report to or appear in person as directed by the department of mental health and the department of corrections, and to follow all directives of such departments; (20) Comply with any registration requirements under sections 589.400 to 589.425, RSMo; and
(21) Comply with any other conditions that the court determines to be in the best interest of the person and society.
4. The court shall provide a copy of the order containing the conditions of release to the person, the attorney general, the department of mental health, the head of the facility housing the person, and the department of corrections.
5. A person who is conditionally released and supervised by a probation and parole officer employed by the department of corrections remains under the control, care, and treatment of the department of mental health.
6. The court may modify conditions of release upon its own motion or upon the petition of the department of mental health, the department of corrections, or the person on conditional release.
7. The following provisions shall apply to violations of conditional release:
(1) If any probation and parole officer has reasonable cause to believe that a person on conditional release has violated a condition of release or that the person is no longer a proper subject for conditional release, the officer may issue a warrant for the person’s arrest. The warrant shall contain a brief recitation of the facts supporting the officer’s belief. The warrant shall direct any peace officer to take the person into custody immediately so that the person can be returned to a secure facility;
(2) If the director of the department of mental health or the director’s designee has reasonable cause to believe that a person on conditional release has violated a condition of release or that the person is no longer a proper subject for conditional release, the director or the director’s designee may request that a peace officer take the person into custody immediately, or request that a probation and parole officer or the court which ordered the release issue a warrant for the person’s arrest so that the person can be returned to a secure facility;
(3) At any time during the period of a conditional release, the court which ordered the release may issue a notice to the released person to appear to answer a charge of a violation of the terms of the release and the court may issue a warrant of arrest for the violation. Such notice shall be personally served upon the released person. The warrant shall authorize the return of the released person to the custody of the court or to the custody of the director of mental health or the director’s designee;
(4) No peace officer responsible for apprehending and returning the person to the facility upon the request of the director of the department of mental health or the director’s designee or a probation and parole officer shall be civilly liable for apprehending or transporting such person to the facility so long as such duties were performed in good faith and without negligence;
(5) The department of mental health shall promptly notify the court that the person has been apprehended and returned to a secure facility;
(6) Within seven days of the person’s return to a secure facility, the department of mental health must either request that the attorney general file a petition to revoke the person’s conditional release or continue the person on conditional release;
(7) If a petition to revoke conditional release is filed, the person shall remain in custody until a hearing is held on the petition. The hearing shall be given priority on the court’s docket. If upon hearing the evidence, the court finds by preponderance of the evidence that the person has violated a condition of release and that the violation of the condition was sufficient to render the person no longer suitable for conditional release, the court shall revoke the conditional release and order the person returned to a secure facility designated by the director of the department of mental health. If the court determines that revocation is not required, the court may modify or increase the conditions of release or order the person’s release on the existing conditions of release;
(8) A person whose conditional release has been revoked may petition the court for subsequent release pursuant to sections 632.498, 632.501, and 632.504 no sooner than six months after the person’s return to a secure facility.
8. The department of mental health may enter into agreements with the department of corrections and other departments and may enter into contracts with private entities for the purpose of supervising a person on conditional release.
9. The department of mental health and the department of corrections may require a person on conditional release to pay a reasonable fee to cover the costs of providing services and monitoring while the person is released. Each department may adopt rules with respect to establishing, waiving, collecting, and using fees. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are non-severable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2006, shall be invalid and void.
10. In the event a person on conditional release escapes from custody, the department of mental health shall notify the court, the department of corrections, the attorney general, the chief law enforcement officer of the county or city not within a county from where the person escaped or absconded, and any other persons necessary to protect the safety of the public or to assist in the apprehension of the person. The attorney general shall notify victims and witnesses. Upon receiving such notice, the attorney general shall file escape from commitment charges under section 575.195, RSMo.
(L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.507. Attorney general to inform victims–notification of proceedings. 
1. The attorney general shall in a timely manner inform victims of a sexually violent offense committed by a person:
(1) That a written notice has been given by the agency with jurisdiction to the attorney general and the multidisciplinary team pursuant to subsection 1 of section 632.483;
(2) Of the decision of the prosecutor’s review committee in determining whether or not the person may be a sexually violent predator;
(3) That a petition has been filed with the circuit court pursuant to section 632.484 or 632.486;
(4) Of the outcome of a trial held pursuant to the provisions of section 632.492;
(5) Of the filing of any petition or pending proceedings held pursuant to the provisions of sections 632.498 to 632.505;
(6) Of the escape of any person committed under sections 632.480 to 632.513.
2. Such victims shall have the right to be present at any proceeding held pursuant to the provisions of sections 632.480 to 632.513. Failure to notify shall not be a reason for postponement of release. Nothing in this section shall create a cause of action against the state or an employee of the state acting within the scope of the employee’s employment as a result of the failure to notify pursuant to this section.
(L. 1998 H.B. 1405, et al. § 10, A.L. 1999 H.B. 852, A.L. 2006 H.B. 1698, et al.)
Effective 6-5-06

632.510. Release of information, when. 
In order to protect the public, relevant information and records which are otherwise confidential or privileged shall be released to the agency with jurisdiction or the attorney general for the purpose of meeting the notice requirement provided in section 632.483 or 632.484 and determining whether a person is or continues to be a sexually violent predator.
(L. 1998 H.B. 1405, et al. § 11, A.L. 1999 H.B. 852)

632.513. Sealed records of proceedings–access permitted, when. 
Any psychological reports, drug and alcohol reports, treatment records, medical records or victim impact statements which have been submitted to the court or admitted into evidence pursuant to sections 632.480 to 632.513 shall be part of the record but shall be sealed and opened only on order of the court or as provided in sections 632.480 to 632.513; provided, however, that any person may have access to their own records or reports.
(L. 1998 H.B. 1405, et al. § 12)
Effective 1-1-99

632.550. Definitions. 
As used in sections 632.550 to 632.557, the following terms mean:
(1) “Board”, the governing board established in section 632.555;
(2) “Child”, a person under the age of eighteen years;
(3) “Demonstration project”, the project established in section 632.553;
(4) “Department”, the department of mental health;
(5) “Severely emotionally disturbed child”, a child who exhibits substantial impairment in his ability to function at a developmentally appropriate level due to the presence of a serious psychiatric disorder.
(L. 1989 H.B. 502, et al. § 1)

632.553. Department to designate county for demonstration project–advisory board, members, duties–project goals. 
1. Subject to appropriations, the department of mental health shall designate a county in which to establish a three-year demonstration project to design and implement a community-based inter-agency treatment system to serve severely emotionally disturbed children who receive services through public funding. Such county shall be required to fund ten percent of the cost of the project. The director of the department of mental health shall assemble an advisory board, consisting of members who are residents of such county, to plan the demonstration project. It is the intent of the general assembly that the demonstration project provide services that enable severely emotionally disturbed children to remain with their families, attend and make academic progress in public schools and not commit crimes or be incarcerated. 2. The demonstration project shall accomplish the following goals:
(1) Provide services in a manner that gives priority to permitting a child to reside safely in his usual family setting if that is in the best interests of the child; (2) Ensure that when a joint evaluation indicates that out-of-home care and treatment are required, services are provided for as brief a time as possible, in the least restrictive setting consistent with effective services, and in as close proximity as possible to the child’s usual residence;
(3) Develop appropriate services for difficult to place children;
(4) Conduct research into children’s mental health service system in order that the system may be evaluated for effectiveness of treatment and cost benefit on an ongoing basis; and
(5) Provide for other counties or regions a replicable model for a comprehensive, coordinated children’s mental health service system.
(L. 1989 H.B. 502, et al. § 2)

632.555. Governing board for project, members, terms, duties.
1. There is hereby established within the department of mental health a “Governing Board” for the demonstration project established pursuant to section 632.553. The board shall be composed of seven members who are residents of the county selected for the demonstration project. Such members shall be appointed by the director of the department of mental health with the advice and consent of the state mental health commission.
2. Board members shall serve for the three-year duration of the demonstration project. The board members shall receive no compensation, but shall be reimbursed for necessary expenses in the performance of their duties.
3. The board shall be responsible for the direct implementation of the demonstration project and shall monitor and direct the treatment of the severely emotionally disturbed children within the project, evaluating the treatment effectiveness and the cost effectiveness of the program. The board shall make quarterly reports to the department of mental health regarding such effectiveness of treatment and cost benefit.
4. The department shall provide clerical and administrative support to the board.
(L. 1989 H.B. 502, et al. § 3)

632.557. Reports to governor and general assembly. 
The department shall file annual progress reports concerning the demonstration project to the governor and to the general assembly.
(L. 1989 H.B. 502, et al. § 4)

632.560. Mental health care provider requirements. 1. As used in this section, “mental health care provider” means any person licensed pursuant to chapter 334, RSMo, chapter 335, RSMo, or chapter 337, RSMo. 2. To provide repressed memory therapy, recovered memory therapy, re-parenting therapy or multiple personality disorder treatment, a person shall be a mental health care provider as defined in subsection 1 of this section.
(L. 1999 H.B. 343 § 1)

____________________________________________________________________________________

CIVIL INVOLUNTARY DETENTION 
For some persons, mental illness leaves them unable to make decisions about caring for their basic human needs such as food, shelter, and medical care. A few people who are experiencing mental illnesses may be in danger of hurting themselves or others. This can be a very confusing and frightening experience for them as well as for their families and friends. With appropriate evaluation, treatment, and continued care, most people with mental illness can return to their normal lives. Similarly, individuals who are abusing alcohol or drugs may be unable to make decisions about caring for their basic human needs such as food, shelter, and medical care. Alcohol or drug abuse may also place a person in danger of hurting themselves or others. As with most types of medical evaluation and treatment, people may decide to participate voluntarily, may refuse to participate or may choose alternatives to the recommendations. For some people, the symptoms of a mental illness or the effects of alcohol or drug abuse compromise their cognitive or reasoning ability, and they are left unable to understand sufficient information to make decisions about necessary and appropriate medical treatment. Missouri state regulations, Chapter 632 RSMo., provide the statutory authority to require involuntary treatment under certain conditions with appropriate due process. This process is called Civil Involuntary Detention.

FREQUENTLY ASKED QUESTIONS

Who can initiate a Civil Involuntary Detention? 
Any adult person may file an application for detention, evaluation, and treatment with the probate division of the circuit court where the person may be found. Law Enforcement personnel, under their police power authority, may detain a person believed to be imminently harmful due to a mental disorder or alcohol or drug abuse and transport the person to an appropriate facility for evaluation for admission.

Staff of the Access Crisis Intervention (ACI) system, the 24-hour crisis hotline, can also assist with the civil involuntary detention process. By calling the toll-free 24-hour ACI crisis number, the caller will be able to speak to a mental health worker who will evaluate the current situation and assist with the appropriate response.

Facilities that are recognized by the Department of Mental Health to provide civil involuntary detention services have mental health professionals who are designated and approved to initiate on-site civil involuntary detention for individuals in need of emergency evaluation and treatment. These professionals may be psychiatrists, licensed physicians, psychiatric residents, psychologists, nurses or social workers or a qualified substance abuse counselor.

If the situation is an emergency, what do I do?

  • If possible and safe to do so, get the person to the emergency room of a hospital that treats persons with mental illnesses.
  • If the person is currently receiving mental health treatment, call the person responsible for the treatment and that person should provide you with an emergency plan. If so, follow the plan.
  • Call the police or sheriff; tell them about the situation and explain why it is an emergency. Remember, law enforcement officers may have to observe the person’s dangerous behavior before taking them into custody and transporting them to a mental health facility. If the situation is not an immediate emergency, what do I do?
  • If the person is currently receiving mental health treatment, call the person responsible for the treatment. That person should assist you.
  • If the person is known to the probate court due to other similar situations, go to the court and ask to complete an application for detention, evaluation, and treatment. The judge may informally consider your application or, if more information is needed, you may be referred to the Access Crisis Intervention (ACI) system for additional assistance.
  • Call the toll-free 24-hour Access Crisis Intervention (ACI) 24-hour crisis hotline. You will be able to speak to a mental health worker who will evaluate the current situation and assist you with the appropriate response.

How long will a person be detained, evaluated and treated? 
The initial period is for up to 96 hours, excluding weekends and certain holidays. After the initial period, the person’s treating physician will decide if further detention, evaluation, and treatment are needed. If so, the treating psychiatrist may initiate a court hearing for the appropriate time frame, 21 days, 90 days, or one year for mental health treatment and 30 or 90 days for alcohol or drug treatment.

What happens in court? 
If an application for 96 hours is presented to the Probate Division of the Circuit Court, the judge will decide whether to order the person detained, evaluated, and treated in an appropriate facility for up to 96 hours. If a petition is filed for commitment beyond the initial 96-hour period, a formal hearing will be held in the court to hear facts supporting the petition. During this hearing the person against whom the petition is filed will be represented by an attorney; if the person cannot afford an attorney, the court will appoint one. The judge will hear the evidence and make the final decision as to whether the person will be committed for an additional period.

Will I be asked to testify in court? 
If you have observed recent behavior of a person that supports the allegation in the petition, you will usually be asked to testify. Sometimes family members or friends are the only persons who have witnessed harmful behavior.

Does Missouri have an outpatient commitment law? 
Missouri has provisions for conditionally releasing a person from a mental health facility to outpatient treatment. These statutory provisions allow for a mental health facility to set conditions for a person’s release and provides authority to return a person to a mental health facility if the conditions are not met.

Do Missouri statutes include “gravely disabled” criteria? 
Yes. The criteria that a person must be mentally disordered and, as a result, present harm to self or others includes a standard that a person may be harmful if, as a result or an impairment, he or she is unable to make decisions regarding hospitalization or treatment as evidenced by not providing for basic necessities of food, clothing, shelter, safety, or medical care.

Are there any other laws that can be used to help persons who are incapacitated by mental illness? 
Yes. If a person continues to be unable to make basic decisions because of an impairment, guardianship should be considered. This legal process places the personal decision making in the hands of another person who is legally able to authorize needed services. This law has provisions for limited guardianship that allows the guardian to only have decision-making powers under certain conditions.

Does a person have to be homicidal or suicidal before he or she is able to be civilly detained? No. Verbal threats to do harm are sufficient, or even placing a person in fear of harm is sufficient. The standard is “a likelihood of serious physical harm to self or others.” Past patterns of behavior that have historically have resulted in harm may also be considered.