Which was Current Through (denote date of supplement, or latest
act number or legislative session covered by latest interim update):
2000 Pocket part update
- When not the subject of a pending commitment action, what
are the prerequisites for an individual to receive voluntarily
treatment?
There are three types of voluntary admission: formal, informal
and noncontested.
Informal voluntary admission:
R.S. 28:52.1 (A). In the discretion of the director, any
mentally ill person or person suffering from substance abuse
desiring admission to a treatment facility for diagnosis or
treatment of a psychiatric disorder or substance abuse may be
admitted upon the patient's request without a formal application.
B. Any patient admitted pursuant to this Section shall have the
right to leave the treatment facility at any time during the
normal day-shift hours of operation, which shall include but not
be limited to nine a.m. to five p.m.
Formal voluntary admission:
R.S. 28:52.2 (A). “Any mentally ill person or person
suffering from substance abuse desiring admission to a treatment
facility for diagnosis and/or treatment of a psychiatric disorder
or substance abuse and who is deemed suitable for formal voluntary
admission by the admitting physician may be so admitted upon his
written request.
B. A patient admitted under the provisions of this Section shall
not be detained in the treatment facility for longer than
seventy-two hours after making a valid written request for
discharge to the director unless an emergency certificate is
executed pursuant to R.S. 28:53, or unless judicial commitment is
instituted pursuant to R.S. 28:54,after making a valid written
request for discharge to the director of the treatment facility.”
Noncontested admission:
R.S. 28:52.3. (A). “A mentally ill person or person
suffering from substance abuse who does not have the capacity to
make a knowing and voluntary consent to a voluntary admission
status and who does not object to his admission to a treatment
facility may be admitted to a treatment facility as a noncontested
admission. Such person shall be subject to the same rules and
regulations as a person admitted on a voluntary admission status
and his treatment shall be governed by the provisions of R.S.
28:52H.
- Conditions necessary for emergency treatment.
Emergency treatment can be obtained through a two step
emergency certificate, by a peace officer or under protective
custody.
By emergency certificate:
R.S. 28:53(B)(1) “Any physician or psychologist may
execute an emergency certificate only after an actual examination
of a person alleged to be mentally ill or suffering from substance
abuse who is determined to be in need of immediate care and
treatment in a treatment facility because the examining physician
or psychologist determines the person to be dangerous to self or
others or to be gravely disabled…”
And
R.S. 28:53(G)(1) “Upon admission of any person by
emergency certificate to a treatment facility, the director of the
treatment facility shall immediately notify the coroner of
the parish in which the treatment facility is located…
(2) Within seventy-two hours of admission, the person
shall be independently examined by the coroner or his
deputy who shall execute an emergency certificate, pursuant to
Subsection B, which shall be a necessary precondition to the
person's continued confinement.”
R.S. 28:2(10) "Gravely disabled" means the condition of
a person who is unable to provide for his own basic physical
needs, such as essential food, clothing, medical care, and
shelter, as a result of serious mental illness or substance abuse
and is unable to survive safely in freedom or protect himself from
serious harm.
R.S. 28:2(3) "Dangerous to others" means the condition
of a person whose behavior or significant threats support a
reasonable expectation that there is a substantial risk that he
will inflict physical harm upon another person in the near future.
(4) "Dangerous to self" means the condition of a person
whose behavior, significant threats or inaction supports a
reasonable expectation that there is a substantial risk that he
will inflict physical or severe emotional harm upon his own
person.
By Peace Officer:
R.S. 28:53 (L)(1) “A peace officer or a peace officer
accompanied by an emergency medical service trained technician may
take a person into protective custody and transport him to a
treatment facility for a medical evaluation when, as a result of
his personal observation, the peace officer or emergency medical
service technician has reasonable grounds to believe the person is
a proper subject for involuntary admission to a treatment facility
because the person is acting in a manner dangerous to himself or
dangerous to others, is gravely disabled, and is in need of
immediate hospitalization to protect such a person or others from
physical harm.”
Protective custody:
R.S. 28:53.2A. “Any parish coroner or judge of a
court of competent jurisdiction may order a person to be taken
into protective custody and transported to a treatment facility or
the office of the coroner for immediate examination when a
peace officer or other credible person executes a statement under
private signature specifying that, to the best of his knowledge
and belief, the person is mentally ill … and is in need of
immediate treatment to protect the person or others from physical
harm.
Comment: Louisiana has a highly unusual law. No other
state gives a county coroner, who may or may not have any
psychiatric or psychological training, responsibility for
evaluating and recommending civil commitment.
- Is mental illness/disorder defined?
Mentally Ill Person is defined as: “any person with a
psychiatric disorder which has substantial adverse effects on his
ability to function and who requires care and treatment. It does
not refer to a person suffering solely from mental retardation,
epilepsy, alcoholism, or drug abuse.” (R.S. 28:2-14)
- Maximum duration of emergency treatment before a judicial
hearing must be held.
Fifteen days. See 28:53(A).
- Can a potential committee avoid a hearing determination by
opting to voluntarily undergo treatment and, if so, what is the
minimum time he or she must then spend in treatment?
The Mental Health Code does not specify whether a person can
avoid a hearing by seeking voluntary treatment, however, it does
provide in R.S. 28:55(J) “No director of a treatment
facility shall prohibit any mentally ill person or person
suffering from substance abuse from applying for conversion of
involuntary or emergency admission status to voluntary admission
status. Any patient on an involuntary admission status shall have
the right to apply for a writ of habeas corpus to have his
admission status changed to voluntary status.”
- Are there any requirements that a potential committee be
capable of deciding to voluntarily undergo treatment?
Yes. See R.S. 28:52(G) No admission may be deemed
voluntary unless the admitting physician determines that the
person to be admitted has the capacity to make a knowing and
voluntary consent to the admission.Knowing and voluntary consent
shall be determined by the ability of the individual to
understand:
(1) That the treatment facility to which the patient is
requesting admission is one for mentally ill persons or persons
suffering from substance abuse;
(2) That he is making an application for admission, and
(3) The nature of his status and the provisions governing
discharge or conversion to an involuntary status.
One of the elements that is required for a court to order
involuntary commitment is that a patient is unwilling or unable to
seek voluntary treatment. (R.S. 28:54(B)(2)(e)).
- Who may petition for an individual to receive assisted
inpatient care?
R.S.28:54(A) “Any person of legal age may file with the
court a petition which asserts his belief that a person is
suffering from mental illness which contributes or causes that
person to be a danger to himself or others or to be gravely
disabled…”
- Required elements of a petition.
R.S. 28:54(B) “The petition shall contain the facts
which are the basis of the assertion and provide the respondent
with adequate notice and knowledge relative to the nature of the
proceedings.”
- Is there a penalty for filing an unfounded petition?
Not specified in the Mental Health Code.
- Participation of other individuals in commitment hearing
(i.e. notice, a right to be heard or standing for family members,
legal guardians, doctors, etc.).
For Placement Decision:
R.S. 28:55(E)(1) “If the court finds by clear and
convincing evidence that the respondent is dangerous to self or
others or is gravely disabled, as a result of substance abuse or
mental illness, it shall render a judgment for his commitment.
After considering all relevant circumstances, including any
preference of the respondent or his family, the court shall
determine whether the respondent should be committed to a
treatment facility which is medically suitable and least
restrictive of the respondent's liberty.”
For Notice to Petitioner:
R.S. 28:54(C). “Upon the filing of the petition, the
court shall assign a time, not later than eighteen calendar days
thereafter, shall assign a place for a hearing upon the petition,
and shall cause reasonable notice thereof to be given to the
respondent, respondent's attorney and the petitioner.”
- Length of initial term of assisted inpatient care.
180 Days. See R.S. 28:56(A) (1).
- Conditions necessary for judicially ordered inpatient care
(exact wording of key portions of applicable statute desired).
R.S. 28:55(E)(1) “If the court finds by clear and
convincing evidence that the respondent is dangerous to self or
others or is gravely disabled, as a result of substance abuse or
mental illness, it shall render a judgment for his commitment.”
See definitions for dangerous to self or others and gravely
disabled in answer No. 2.
- Evidentiary standard under which inpatient care criteria
are judged (two most common are “beyond a reasonable doubt” and
“clear and convincing evidence”).
“Clear and convincing evidence.” See R.S.28:55(E) (1).
- Is there a least restrictive treatment requirement?
Yes, “after considering all relevant circumstances… the court
shall determine whether the respondent should be committed to a
treatment facility which is medically suitable and least
restrictive of the respondent's liberty.” R.S.28:55(E)(1)
See also R.S. 28:2(29)(a) …"Treatment facility" includes
but is not limited to the following, and shall be selected with
consideration of first, medical suitability; second, least
restriction of the person's liberty…”
- Is there a confidentiality exception for family members of
committees and/or individuals undergoing emergency evaluations?
Not specified in the Mental Health Code.
- Are advance directives or durable powers of attorney
addressed and, if so, in what way?
Not specified in the Mental Health Code. R.S. 40:1299.58.1
does authorize advance directives, however, the provision but not
address whether advance directives can be used for mental health
treatment.
- Is there a separate proceeding necessary to abrogate a
committee’s right to refuse treatment?
No, “a patient confined to a treatment facility by judicial
commitment may receive medication and treatment without his
consent, but no major surgical procedures or electroshock therapy
may be performed without the written authority of a court of
competent jurisdiction after a hearing. With regard to the
administration of medication, if the patient objects to being
medicated, prior to making a final decision, the treating
physician shall make a reasonable effort to consult with the
primary physician outside of the facility that has previously
treated the patient for his condition.” (R.S. 28:55(I) (1)).
- Does the treating hospital and/or physician have discretion
to release individuals before the end of their assisted inpatient
care periods?
Yes, “The director may discharge any patient if in his opinion
discharge is appropriate.” (R.S. 28:56(C)(3)).
Additionally, the director may convert the patient to voluntary
status, see R.S. 28:56(C).
- Individual(s) who may decide to initiate new periods of
assisted treatment.
All aspects of hearing for extended treatment are the same as
original hearing. See answer No. 7.
- Type of forum that decides on need for extended treatment
(normally either judicial or administrative).
Judicial. (R.S.28:56(A) (2) (a)).
- Participation of other individuals in the extension hearing
(i.e. notice, a right to be heard and/or right to counsel for
family members, legal guardians, doctors, etc.).
Same as original hearing. (R.S. 28:56(A)(2)(a)). See
answer No.10.
- Maximum length of subsequent mandated inpatient care (and
of any possible subsequent periods).
R.S. 28:56 (A)(1) “Except as provided in Subparagraph
(b) of this Paragraph, each additional judicial commitment [beyond
the initial commitment] shall expire at the end of one hundred
eighty days...
(b) If a person has been judicially committed for four consecutive
one hundred eighty day periods pursuant to the provisions of
Subparagraph (a) of this Paragraph and during this time has not
been conditionally discharged, the period of a subsequent
judicial commitment may exceed one hundred eighty days but shall
not exceed one year.”
- Alternatives(s) to assisted inpatient treatment (i.e.
conditional release, outpatient commitment, etc.) and conditions
necessary for a court to order placement in alternative(s) (if
more than one form, specify for each).
Outpatient Commitment:
The statutory language for outpatient commitment exists, but is
not entirely clear. Upon a judgment for commitment per R.S.
28:55(E)(1), the judge orders placement in a “treatment
facility” which, as defined, includes outpatient service providers
(i.e. community mental health centers) (R.S. 28:2(29)(a)).
In addition, the definition of “treatment” specifically includes
outpatient services (R.S. 28:2(28)).
Conditional Discharge:
R.S. 28:56(G) (1) “A person who is judicially committed
may be conditionally discharged for a period of up to one hundred
twenty days by the director or by the court. The patient may be
required to report for outpatient treatment as a condition of his
release. The terms and conditions of the conditional discharge
shall be specifically set forth in writing and signed by the
patient. A copy of the conditional discharge shall be given to the
patient and explained to him before he is discharged.” See also
R.S. 28:2(1)
- Maximum duration of alternative(s) to mandated inpatient
care.
Outpatient Commitment:
Same as inpatient, 180 Days. See R.S. 28:56(A) (1).
Conditional Discharge:
One hundred twenty days. (R.S. 28:56(G)(1)).
- Procedure necessary to transfer patient from outpatient to
inpatient care.
Outpatient Commitment:
The mental health code does not provide for a mechanism to
transfer.
Conditional Discharge:
R.S.28:56(G) (3) “If a patient does not comply with the
terms and conditions of his conditional discharge, he is subject
to any of the procedures for involuntary treatment, including but
not limited to the issuance of an order for custody and the
execution of an emergency certificate.”
- Procedure necessary to institute and maximum duration of
subsequent periods of alternative(s) to inpatient assisted
treatment.
Outpatient Commitment:
Same as inpatient: R.S. 28:56 (A)(1)”Except as provided
in Subparagraph (b) of this Paragraph, each additional judicial
commitment shall expire at the end of one hundred eighty days.
(b) If a person has been judicially committed for four consecutive
one hundred eighty day periods pursuant to the provisions of
Subparagraph (a) of this Paragraph and during this time has not
been conditionally discharged, the period of a subsequent judicial
commitment may exceed one hundred eighty days but shall not exceed
one year.”
Conditional Discharge:
R.S.28:56(G) (4) “An extension of a conditional
discharge may be granted upon application by the director of the
treatment facility to the court and notification to respondent's
counsel of record. The court may grant the extension of the
conditional discharge for a period of up to one hundred twenty
days. No further extension may be made without a contradictory
hearing. The burden of proof is on the director of the treatment
facility to show why continued treatment is necessary.”
- Describe any procedures for conservatorship, guardianship,
etc., which are applicable to the mentally ill.
Not described in the Mental Health Code.
- Other (may include insights into state’s mental health
system, judicial interpretation of mental health code, known
movements for statutory reform, or general comments).
While Louisiana law allows for assisted outpatient treatment (AOT),
it is rarely used. Perhaps a detailed AOT program like New York’s
Kendra’s Law would provide some guidelines and structures needed
for its effective use in Louisiana. The state would also benefit
from an updated standard; one that is not based on dangerousness
as is the current “gravely disabled” criteria. The Treatment
Advocacy Center Model Law for Assisted Treatment offers an example
of an improved need for treatment standard, one that if passed in
Louisiana could help many who currently must suffer to the point
of dangerousness before receiving necessary medical intervention.
