SP0669
LD 1855		 PUBLIC Law, Chapter 319

Signed on 2007-06-19 00:00:00.0 - First Regular Session - 123rd Maine Legislature
 
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 LR 1058
Item 1
Bill Tracking Chamber Status

An Act To Clarify Involuntary Admissions for Psychiatric Hospitalizations

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 34-B MRSA §3801, sub-§1,  as enacted by PL 1983, c. 459, §7, is repealed.

Sec. 2. 34-B MRSA §3801, sub-§7,  as enacted by PL 1983, c. 459, §7, is amended to read:

7. Patient.   "Patient" means a person under observation, care or treatment in a psychiatric hospital or residential care facility pursuant to this subchapter or a person being evaluated for emergency admission under section 3863 in a hospital emergency department.

Sec. 3. 34-B MRSA §3801, sub-§7-B  is enacted to read:

7-B.  Psychiatric hospital.   "Psychiatric hospital" means:
A.  A state mental health institute; or
B.  A nonstate mental health institution.

Sec. 4. 34-B MRSA §3802, sub-§3,  as enacted by PL 1983, c. 459, §7, is amended to read:

3. Visitation.   Visit each psychiatric hospital or residential care facility regularly to review the commitment procedures of all new patients admitted between visits and visit other hospitals as necessary to review protocols and procedures related to certification of patients under section 3863;

Sec. 5. 34-B MRSA §3803,  as enacted by PL 1983, c. 459, §7, is amended to read:

§ 3803. Patient's rights

A patient in a psychiatric hospital or residential care facility under this subchapter has the following rights.

1. Civil rights.   Every patient is entitled to exercise all civil rights, including, but not limited to, the right to civil service status, the right to vote, rights relating to the granting, renewal, forfeiture or denial of a license, permit, privilege or benefit pursuant to any law, the right to enter into contractual relationships and the right to manage his the patient's property, unless:
A. The chief administrative officer of the psychiatric hospital or residential care facility determines that it is necessary for the medical welfare of the patient to impose restrictions on the exercise of these rights and, if restrictions are imposed, the restrictions and the reasons for them shall must be made a part of the clinical record of the patient;
B. A patient has been adjudicated incompetent and has not been restored to legal capacity; or
C. The exercise of these rights is specifically restricted by other statute or rule, but not solely because of the fact of admission to a psychiatric hospital or residential care facility.
2. Humane care and treatment.   Every patient is entitled to humane care and treatment and, to the extent that facilities, equipment and personnel are available, to medical care and treatment in accordance with the highest standards accepted in medical practice.
3. Restraints and seclusion.   Restraint, including any mechanical means of restricting movement, and seclusion, including isolation by means of doors which that cannot be opened by the patient, may not be used on a patient, unless the chief administrative officer of the psychiatric hospital or residential care facility or his the chief administrative officer's designee determines that either is required by the medical needs of the patient.
A. The chief administrative officer of the psychiatric hospital or facility shall record and make available for inspection every use of mechanical restraint or seclusion and the reasons for its use.
B. The limitation of the use of seclusion in this section does not apply to maximum security installations.
4. Communication.   Patient communication rights are as follows.
A. Every patient is entitled to communicate by sealed envelopes with the department, a member of the clergy of his the patient's choice, his the patient's attorney and the court which that ordered his the patient's hospitalization, if any.
B. Every patient is entitled to communicate by mail in accordance with the rules of the psychiatric hospital.
5. Visitors.   Every patient is entitled to receive visitors unless definitely contraindicated by his the patient's medical condition, except that he the patient may be visited by a member of the clergy of his the patient's choice or his the patient's attorney at any reasonable time.
6. Sterilization.   A patient may not be sterilized except in accordance with chapter 7.

Sec. 6. 34-B MRSA §3831,  as amended by PL 1999, c. 423, §3, is further amended to read:

§ 3831. Admission

A psychiatric hospital for the mentally ill may admit on an informal voluntary basis for care and treatment of a mental illness any person desiring admission or the adult ward of a legally appointed guardian, subject to the following conditions.

1. Availability of accommodations.   Except in cases of medical emergency, voluntary admission is subject to the availability of suitable accommodations.
2. Standard hospital information.   Standard hospital information may be elicited from the person if, after examination, the chief administrative officer of the psychiatric hospital deems determines the person suitable for admission, care and treatment.
3. Persons under 18 years of age.   Any person under 18 years of age must have the consent of his the person's parent or guardian.
4. State mental health institute.   Any person under 18 years of age must have the consent of the commissioner for admission to a state mental health institute.
5. Adults under guardianship.   An adult ward may be admitted on an informal voluntary basis only if his the adult ward's legally appointed guardian consents to the admission and the ward makes no objection to the admission.
6. Adults with advance health care directives.   An adult with an advance health care directive authorizing mental health psychiatric hospital treatment may be admitted on an informal voluntary basis if the conditions specified in the advance health care directive for the directive to be effective are met in accordance with the method stated in the advance health care directive or, if no such method is stated, as determined by a physician or a psychologist. If no conditions are specified in the advance health care directive as to how the directive becomes effective, the person may be admitted on an informal voluntary basis if the person has been determined to be incapacitated pursuant to Title 18-A, Article 5, Part 8. A person may be admitted only if the person does not at the time object to the admission or, if the person does object, if the person has directed in the advance health care directive that admission to the psychiatric hospital may occur despite that person's objections. The duration of the stay in the psychiatric hospital of a person under this subsection may not exceed 5 working days. If at the end of that time the chief administrative officer of the psychiatric hospital recommends further hospitalization of the person, the chief administrative officer shall proceed in accordance with section 3863, subsection 5.

This subsection does not create an affirmative obligation of a psychiatric hospital to admit a person consistent with the person's advance health care directive. This subsection does not create an affirmative obligation on the part of the psychiatric hospital or treatment provider to provide the treatment consented to in the person's advance health care directive if the physician or psychologist evaluating or treating the person or the chief administrative officer of the psychiatric hospital determines that the treatment is not in the best interest of the person.

Sec. 7. 34-B MRSA §3832,  as amended by PL 2005, c. 519, Pt. BBBB, §4 and affected by §20, is further amended to read:

§ 3832. Freedom to leave

1. Patient's right.   A patient admitted under section 3831 is free to leave the psychiatric hospital at any time after admission within 16 hours of the patient's request unless application for admission of the person under section 3863 is initiated within that time.
2. Notice.   The chief administrative officer of the psychiatric hospital shall cause every patient admitted under section 3831 to be informed, at the time of admission, of:
A.  His The patient's status as an informally admitted patient; and
B.  His The patient's freedom to leave the psychiatric hospital under this section.

Sec. 8. 34-B MRSA §3861, sub-§2,  as amended by PL 1997, c. 422, §5, is further amended to read:

2. State mental health institute.   The chief administrative officer of a state mental health institute:
A. May receive for observation, diagnosis, care and treatment in the hospital state mental health institute any person whose admission is applied for under section 3831 or 3863 if the certifying examination conducted pursuant to section 3863, subsection 2 was completed no more than 2 days before the date of admission; and
B. May receive for observation, diagnosis, care and treatment in the hospital state mental health institute any person whose admission is applied for under section 3864 or is ordered by a court.

Any business entity contracting with the department for psychiatric physician services or any person contracting with a state mental health institute or the department to provide services pertaining to the admission, treatment or discharge of patients under sections 3863 and 3864 within a state mental health institute or any person contracting with a business entity to provide those services within a state mental health institute is deemed to be a governmental entity or an employee of a governmental entity for purposes of civil liability under the Maine Tort Claims Act, Title 14, chapter 741, with respect to the admission, treatment or discharge of patients within a state mental health institute under sections 3863 and 3864.

Sec. 9. 34-B MRSA §3863,  as amended by PL 2005, c. 519, Pt. BBBB, §§5 to 8 and affected by §20, is further amended to read:

§ 3863. Emergency procedure

A person may be admitted to a mental psychiatric hospital on an emergency basis according to the following procedures.

1. Application.   Any health officer, law enforcement officer or other person may make a written application to admit a person to a mental psychiatric hospital, subject to the prohibitions and penalities penalties of section 3805, stating:
A.  His The person's belief that the person is mentally ill and, because of his the person's illness, poses a likelihood of serious harm; and
B. The grounds for this belief.
2. Certifying examination.   The written application must be accompanied by a dated certificate, signed by a licensed physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or a licensed clinical psychologist, stating:
A. The physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or psychologist has examined the person on the date of the certificate; and
B. The physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or psychologist is of the opinion that the person is mentally ill and, because of that illness, poses a likelihood of serious harm. The written certificate must include a description of the grounds for that opinion.
2-A. Custody agreement.   A state, county or municipal law enforcement agency may meet with representatives of those public and private health practitioners and health care facilities that are willing and qualified to perform the certifying examination required by this section in order to attempt to work out a procedure for the custody of the person who is to be examined while that person is waiting for that examination. Any agreement must be written and signed by and filed with all participating parties. In the event of failure to work out an agreement that is satisfactory to all participating parties, the procedures of section 3862 and this section continue to apply.

As part of an agreement the law enforcement officer requesting certification may transfer protective custody of the person for whom the certification is requested to another law enforcement officer, a health officer if that officer agrees or the chief administrative officer of a public or private health practitioner or health facility or the chief administrative officer's designee. Any arrangement of this sort must be part of the written agreement between the law enforcement agency and the health practitioner or health care facility. In the event of a transfer, the law enforcement officer seeking the transfer shall provide the written application required by this section.

A person with mental illness may not be detained or confined in any jail or local correctional or detention facility, whether pursuant to the procedures described in section 3862, pursuant to a custody agreement , or under any other circumstances, unless that person is being lawfully detained in relation to or is serving a sentence for commission of a crime.

3. Judicial review.   The application and accompanying certificate must be reviewed by a Justice of the Superior Court, Judge of the District Court, Judge of Probate or a justice of the peace , who may review the original application and accompanying certificate or a facsimile transmission of them.
A. If the judge or justice finds the application and accompanying certificate to be regular and in accordance with the law, the judge or justice shall endorse them and promptly send them to the admitting mental psychiatric hospital. For purposes of carrying out the provisions of this section, an endorsement transmitted by facsimile machine has the same legal effect and validity as the original endorsement signed by the judge or justice.
B. A person may not be held against the person's will in the a hospital under this section, whether informally admitted under section 3831 or sought to be involuntarily admitted under this section, unless the application and certificate have been endorsed by a judge or justice, except that a person for whom an examiner has executed the certificate under subsection 2 may be detained in a hospital for a reasonable period of time, not to exceed 18 24 hours, pending endorsement by a judge or justice, if:

(1) For a person informally admitted under section 3831, the chief administrative officer of the psychiatric hospital undertakes to secure the endorsement immediately upon execution of the certificate by the examiner; and

(2) For a person sought to be involuntarily admitted under this section, the person or persons transporting the person sought to be involuntarily admitted to the hospital seeking the involuntary admission undertake to secure the endorsement immediately upon execution of the certificate by the examiner.

C. Notwithstanding paragraph B, subparagraphs (1) and (2), a person sought to be admitted informally under section 3831 or involuntarily under this section may be transported to a psychiatric hospital and held there for evaluation and treatment at a hospital pending judicial endorsement of the application and certificate if the endorsement is obtained between the soonest available hours of 7:00 a.m. and 11:00 p.m.
4. Custody and transportation.   Custody and transportation under this section are governed as follows.
A. Upon endorsement of the application and certificate by the judge or justice, a law enforcement officer or other person designated by the judge or justice may take the person into custody and transport that person to the psychiatric hospital designated in the application. Transportation of an individual to a psychiatric hospital under these circumstances must involve the least restrictive form of transportation available that meets the clinical needs of that individual.
B. The Department of Health and Human Services is responsible for any transportation expenses under this section, including return from the psychiatric hospital if admission is declined. The department shall utilize any 3rd-party payment sources that are available.
C. When a person who is under a sentence or lawful detention related to commission of a crime and who is incarcerated in a jail or local correctional or detention facility is admitted to a psychiatric hospital under any of the procedures in this subchapter, the county where the incarceration originated shall pay all expenses incident to transportation of the person between the psychiatric hospital and the jail or local correctional or detention facility.
5. Continuation of hospitalization.   If the chief administrative officer of the psychiatric hospital recommends further hospitalization of the person, the chief administrative officer shall determine the suitability of admission, care and treatment of the patient as an informally admitted patient, as described in section 3831.
A. If the chief administrative officer of the hospital determines that admission of the person as an informally admitted patient is suitable, the chief administrative officer shall admit the person on this basis, if the person so desires.
B. If the chief administrative officer of the hospital determines that admission of the person as an informally admitted patient is not suitable, or if the person declines admission as an informally admitted patient, the chief administrative officer of the hospital may seek involuntary commitment of the patient person by filing an application for the issuance of an order for hospitalization under section 3864, except that if the psychiatric hospital is a designated nonstate mental health institution and if the patient was admitted under the contract between the psychiatric hospital and the department for receipt by the psychiatric hospital of involuntary patients, then the chief administrative officer may seek involuntary commitment only by requesting the commissioner to file an application for the issuance of an order for hospitalization under section 3864.

(1) The application must be made to the District Court having territorial jurisdiction over the psychiatric hospital to which the person was admitted on an emergency basis.

(2) The application must be filed within 3 days from the date of admission of the patient under this section, except that, if the 3rd day falls on a weekend or holiday, the application must be filed on the next business day following that weekend or holiday.

C. If neither readmission on an informal voluntary basis nor application to the District Court is effected under this subsection, the chief administrative officer of the psychiatric hospital to which the person was admitted on an emergency basis shall discharge the person immediately.
D. If the chief administrative officer of the psychiatric hospital has filed an application in the District Court for an order of hospitalization under section 3864 but the hearing on the application has not yet been conducted, the chief administrative officer may also submit in the interim a request for an administrative hearing before a hearing officer employed by or under contract with the department to administer medication on an involuntary basis to the patient if the court orders such commitment. In such cases, the administrative hearing to consider the request for involuntary treatment must be held within 4 business days of the date of the court's order permitting involuntary hospitalization under section 3864.
6. Notice.   Upon admission of a person under this section, and after consultation with the person, the chief administrative officer of the psychiatric hospital shall notify, as soon as possible regarding the fact of admission, the person's:
A. Guardian, if known;
B. Spouse;
C. Parent;
D. Adult child; or
E. One of next of kin or a friend, if none of the listed persons exists.

If the chief administrative officer has reason to believe that notice to any individual in paragraphs A to E would pose risk of harm to the person admitted, then notice may not be given to that individual.

7. Post-admission examination.   Every patient admitted to a psychiatric hospital shall must be examined as soon as practicable after his the patient's admission.
A. The chief administrative officer of the psychiatric hospital shall arrange for examination by a staff physician or licensed clinical psychologist of every patient hospitalized under this section.
B. The examiner may not be the certifying examiner under this section or under section 3864.
C. If the post-admission examination is not held within 24 hours after the time of admission, or if a staff physician or licensed clinical psychologist fails or refuses after the examination to certify that, in his the staff physician's or licensed clinical psychologist's opinion, the person is mentally ill and due to his the person's mental illness poses a likelihood of serious harm, the person shall must be immediately discharged.
8. Rehospitalization from progressive treatment program.   The assertive community treatment team physician or psychologist may make a written application under this section to admit to a state mental health institute a person who fails to fully participate in the progressive treatment program in accordance with section 3873, subsection 5. The provisions of this section apply to that application, except that the standard for admission is governed by section 3873, subsection 5, paragraph B.

Sec. 10. 34-B MRSA §3864,  as amended by PL 2005, c. 519, Pt. BBBB, §§9 and 10 and affected by §20, is further amended to read:

§ 3864. Judicial procedure and commitment

1. Application.   An application to the District Court to admit a person to a mental psychiatric hospital, filed under section 3863, subsection 5, paragraph B, shall must be accompanied by:
A. The emergency application under section 3863, subsection 1;
B. The accompanying certificate of the physician or psychologist under section 3863, subsection 2;
C. The certificate of the physician or psychologist under section 3863, subsection 7 that:

(1) The physician or psychologist has examined the patient; and

(2) It is the opinion of the physician or psychologist that the patient is a mentally ill person and, because of that patient's illness, poses a likelihood of serious harm;

D. A written statement, signed by the chief administrative officer of the psychiatric hospital, certifying that a copy of the application and the accompanying documents have been given personally to the patient and that the patient and the patient's guardian or next of kin have been notified of the patient's right to retain an attorney or to have an attorney appointed, of the patient's right to select or to have the patient's attorney select an independent examiner and regarding instructions on how to contact the District Court; and
E. A copy of the notice and instructions given to the patient.
2. Detention pending judicial determination.   Notwithstanding any other provisions of this subchapter, a person, with respect to whom an application for the issuance of an order for hospitalization has been filed, may not be released or discharged during the pendency of the proceedings, unless:
A. The District Court orders release or discharge upon the request of the patient , or the patient's guardian, parent, spouse or next of kin;
B. The District Court orders release or discharge upon the report of the applicant that the person may be discharged with safety;
C. A court orders release or discharge upon a writ of habeas corpus under section 3804; or
D. Upon request of the commissioner, the District Court orders the transfer of a patient in need of more specialized treatment to another psychiatric hospital. In the event of a transfer, the court shall transfer its file to the District Court having territorial jurisdiction over the receiving psychiatric hospital.
3. Notice of receipt of application.   The giving of notice of receipt of application and date of hearing under this section is governed as follows.
A. Upon receipt by the District Court of the application and accompanying documents specified in subsection 1, the court shall cause written notice of the application and date of hearing:

(1) To be mailed within 2 days of filing to the person; and

(2) To be mailed to the person's guardian, if known, and to the person's spouse, parent or one of the person's adult children or, if none of these persons exist or if none of those persons can be located, to one of the person's next of kin or a friend, except that if the chief administrative officer has reason to believe that notice to any of these individuals would pose risk of harm to the person who is the subject of the application, notice to that individual may not be given.

B. A docket entry is sufficient evidence that notice under this subsection has been given.
4. Examination.   Examinations under this section are governed as follows.
A. Upon receipt by the District Court of the application and the accompanying documents specified in subsection 1 and at least 3 days after the person who is the subject of the examination was notified by the psychiatric hospital of the proceedings and of that person's right to retain counsel or to select an examiner, the court shall cause the person to be examined by 2 examiners.

(1) Each examiner must be either a licensed physician or a licensed clinical psychologist.

(2) One of the examiners must be a physician or psychologist chosen by the person or by that person's counsel, if the chosen physician or psychologist is reasonably available.

(3) Neither examiner appointed by the court may be the certifying examiner under section 3863, subsection 2 or 7.

B. The examination shall must be held at the psychiatric hospital or at any other suitable place not likely to have a harmful effect on the mental health of the person.
C.  If the report of the examiners is to the effect that the person is not mentally ill or does not pose a likelihood of serious harm, the application shall be ordered discharged forthwith.
D.  If the report of the examiners is to the effect that the person is mentally ill or poses a likelihood of serious harm, the hearing shall be held on the date, or on the continued date, which the court has set for the hearing.
E.  The examiners shall report to the court as to whether the person is a mentally ill person within the meaning of section 3801, subsection 5 or is a person with severe and persistent mental illness, as appropriate to the proceedings for which the examination was performed.
F.  The examiners shall report to the court as to whether the person presents a likelihood of serious harm within the meaning of section 3801, subsection 4.
5. Hearing.   Hearings under this section are governed as follows.
A. The District Court shall hold a hearing on the application not later than 14 days from the date of the application.

(1) On a motion by any party, the hearing may be continued for cause for a period not to exceed 10 additional days.

(2) If the hearing is not held within the time specified, or within the specified continuance period, the court shall dismiss the application and order the person discharged forthwith.

(3) In computing the time periods set forth in this paragraph, the Maine Rules of Civil Procedure apply.

B. The hearing must be conducted in as informal a manner as may be consistent with orderly procedure and in a physical setting not likely to have harmful effect on the mental health of the person. If the setting is outside the psychiatric hospital to which the patient is currently admitted, the Department of Health and Human Services shall bear the responsibility and expense of transporting the patient to and from the hearing. If the patient is to be admitted to a psychiatric hospital following the hearing, then the responsible hospital from which the patient came shall transport the patient to the admitting psychiatric hospital. If the patient is to be released following the hearing, then the responsible hospital from which the patient came shall return the patient to the that hospital or, at the patient's request, return the patient to the patient's place of residence.
C. The court shall receive all relevant and material evidence which that may be offered in accordance with accepted rules of evidence and accepted judicial dispositions.

(1) The person, the applicant and all other persons to whom notice is required to be sent shall must be afforded an opportunity to appear at the hearing to testify and to present and cross-examine witnesses.

(2) The court may, in its discretion, receive the testimony of any other person and may subpoena any witness.

D. The person shall must be afforded an opportunity to be represented by counsel, and, if neither the person nor others provide counsel, the court shall appoint counsel for the person.
E. In addition to proving that the patient is a mentally ill individual, the applicant must show:

(1) By evidence of the patient's recent actions and behavior, that due to the patient's mental illness the patient poses a likelihood of serious harm; and

(2) That, after full consideration of less restrictive treatment settings and modalities, inpatient hospitalization is the best available means for the treatment of the person.

F. In each case, the applicant shall submit to the court, at the time of the hearing, testimony, including expert psychiatric testimony, indicating the individual treatment plan to be followed by the psychiatric hospital staff, if the person is committed under this section, and shall bear any expense for witnesses for this purpose.
G. A stenographic or electronic record shall must be made of the proceedings in all judicial hospitalization hearings.

(1) The record and all notes, exhibits and other evidence shall be are confidential.

(2) The record and all notes, exhibits and other evidence shall must be retained as part of the District Court records for a period of 2 years from the date of the hearing.

H. The hearing shall be is confidential and no a report of the proceedings may not be released to the public or press, except by permission of the person or his the person's counsel and with approval of the presiding District Court Judge, except that the court may order a public hearing on the request of the person or his the person's counsel.
6. Court findings.   Procedures dealing with the District Court's findings under this section are as follows.
A. The District Court shall so state in the record, if it finds upon completion of the hearing and consideration of the record:

(1) Clear and convincing evidence that the person is mentally ill and that the person's recent actions and behavior demonstrate that the person's illness poses a likelihood of serious harm;

(2) That inpatient hospitalization is the best available means for treatment of the patient; and

(3) That it is satisfied with the individual treatment plan offered by the psychiatric hospital to which the applicant seeks the patient's involuntary commitment.

B. If the District Court makes the findings described in paragraph A, subparagraphs 1 and 2, but is not satisfied with the individual treatment plan as offered, it may continue the case for not longer than 10 days, pending reconsideration and resubmission of an individual treatment plan by the psychiatric hospital.
7. Commitment.   Upon making the findings described in subsection 6, the court may order commitment to a psychiatric hospital for a period not to exceed 4 months in the first instance and not to exceed one year after the first and all subsequent hearings.
A. The court may issue an order of commitment immediately after the completion of the hearing, or it may take the matter under advisement and issue an order within 24 hours of the hearing.
B. If the court does not issue an order of commitment within 24 hours of the completion of the hearing, it shall dismiss the application and order the patient discharged immediately.
8. Continued involuntary hospitalization.   If the chief administrative officer of the psychiatric hospital to which a person has been committed involuntarily by the District Court recommends that continued involuntary hospitalization is necessary for that person, the chief administrative officer shall notify the commissioner. The commissioner may then, not later than 30 21 days prior to the expiration of a period of commitment ordered by the court, make application in accordance with this section to the District Court that has territorial jurisdiction over the psychiatric hospital designated for treatment in the application by the commissioner for a hearing to be held under this section.
9. Transportation.   Except for transportation expenses paid by the District Court pursuant to subsection 10, a continued involuntary hospitalization hearing that requires transportation of the patient to and from any psychiatric hospital to a court that has committed the person must be provided at the expense of the Department of Health and Human Services. Transportation of an individual to a psychiatric hospital under these circumstances must involve the least restrictive form of transportation available that meets the clinical needs of that individual and be in compliance with departmental regulations.
10. Expenses.   With the exception of expenses incurred by the applicant pursuant to subsection 5, paragraph F, the District Court shall be is responsible for any expenses incurred under this section, including fees of appointed counsel, witness and notice fees and expenses of transportation for the person.
11. Appeals.   A person ordered by the District Court to be committed to a psychiatric hospital may appeal from that order to the Superior Court.
A. The appeal is on questions of law only.
B. Any findings of fact of the District Court may not be set aside unless clearly erroneous.
C. The order of the District Court shall remain remains in effect pending the appeal.
D. The District Court Civil Rules and the Maine Rules of Civil Procedure apply to the conduct of the appeals, except as otherwise specified in this subsection.

Sec. 11. 34-B MRSA §3865,  as enacted by PL 1983, c. 459, §7, is amended to read:

§ 3865. Hospitalization by federal agency

If a person ordered to be hospitalized under section 3864 is eligible for hospital care or treatment by any agency of the United States, the court, upon receipt of a certificate from the agency showing that facilities are available and that the person is eligible for care or treatment in the facilities, may order him the person to be placed in the custody of the agency for hospitalization.

1. Rules and rights.   A person admitted under this section to any psychiatric hospital or institution operated by any agency of the United States, inside or outside the State, is subject to the rules of the agency, but retains all rights to release and periodic court review granted by this subchapter.
2. Powers of chief administrative officer.   The chief administrative officer of any psychiatric hospital or institution operated by a federal agency in which the person is hospitalized has, with respect to the person, the same powers as the chief administrative officer of psychiatric hospitals or the commissioner within this State with respect to detention, custody, transfer, conditional release or discharge of patients.
3. Court jurisdiction.   Every order of hospitalization issued under this section is conditioned on the retention of jurisdiction in the courts of this State to, at any time:
A. Inquire into the mental condition of a person hospitalized; and
B. Determine the necessity for continuance of his the person's hospitalization.

Sec. 12. 34-B MRSA §3866,  as enacted by PL 1983, c. 459, §7, is amended to read:

§ 3866. Members of the Armed Forces

1. Admission to psychiatric hospital.   Any member of the Armed Forces of the United States who was a resident of the State at the time of his the member's induction into the service and who is determined by a federal board of medical officers to have a mental disease not incurred in line of duty shall must be received, at the discretion of the commissioner and without formal commitment, at either of the state hospitals for the mentally ill mental health institutes, upon delivery at the hospital institute designated by the commissioner of:
A. The member of the Armed Forces; and
B. The findings of the board of medical officers that he the member is mentally ill.
2. Status.   After delivery of the member of the Armed Forces at the hospital state mental health institute designated by the commissioner, his the member's status shall be is the same as if he the member had been committed to the hospital institute under section 3864.

Sec. 13. 34-B MRSA §3867,  as amended by PL 1997, c. 422, §20, is further amended to read:

§ 3867. Transfer from out-of-state institutions

1. Commissioner's authority.   The commissioner may, upon request of a competent authority of the District of Columbia or of a state that is not a member of the Interstate Compact on Mental Health, authorize the transfer of a mentally ill patient person directly to a hospital state mental health institute in Maine, if:
A. The patient person has resided in this State for a consecutive period of one year during the 3-year period immediately preceding commitment in the other state or the District of Columbia;
B. The patient person is currently confined in a recognized institution for the care of the mentally ill as the result of proceedings considered legal by that state or by the District of Columbia;
C. A duly certified copy of the original commitment proceedings and a copy of the patient's person's case history is supplied;
D. The commissioner, after investigation, considers the transfer justifiable; and
E. All expenses of the transfer are borne by the agency requesting it.
2. Receipt of patient.   When the commissioner has authorized a transfer under this section, the superintendent of the hospital state mental health institute designated by the commissioner shall receive the patient as having been regularly committed to the state mental health institute under section 3864.

Sec. 14. 34-B MRSA §3868,  as amended by PL 1997, c. 422, §21, is further amended to read:

§ 3868. Transfer to other institutions

1. To other hospitals.   The commissioner may transfer, or authorize the transfer of, a patient from one hospital to another, either inside or outside the State, if the commissioner determines that it would be consistent with the medical or psychiatric needs of the patient to do so.
A. Before a patient is transferred, the commissioner shall give written notice of the transfer to the patient's guardian, the patient's parents or spouse or, if none of these persons exists or can be located, to the patient's next of kin or friend, except that if the chief administrative officer of the hospital to which the patient is currently admitted has reason to believe that notice to any of these individuals would pose risk of harm to the person, then notice may not be given to that individual.
B. In making all such transfers, the commissioner shall give due consideration to the relationship of the patient to his the patient's family, guardian or friends, in order to maintain relationships and encourage visits beneficial to the patient.
2. To federal agency.   Upon receipt of a certificate of an agency of the United States that facilities are available for the care or treatment of any involuntarily hospitalized person and that the person is eligible for care and treatment in a hospital or institution of the agency, the chief administrative officer of the psychiatric hospital may cause his the person's transfer to the agency of the United States for hospitalization.
A. Upon making such a transfer, the chief administrator of the hospital administrative officer shall notify the court which that ordered hospitalization and the persons specified in subsection 1, paragraph A.
B.  No A person may not be transferred to an agency of the United States if he the person is confined pursuant to conviction of any felony or misdemeanor or if he the person has been acquitted of the charge solely on the ground of mental illness, unless before the transfer the court originally ordering confinement of the person enters an order for transfer after appropriate motion and hearing.
C. Any person transferred under this section to an agency of the United States is deemed to be hospitalized by the agency pursuant to the original order of hospitalization.

Sec. 15. 34-B MRSA §3869,  as enacted by PL 1983, c. 459, §7, is amended to read:

§ 3869. Return from unauthorized absence

If any patient committed under section 3864 leaves the grounds of the psychiatric hospital without authorization of the chief administrative officer of the psychiatric hospital or his the chief administrative officer's designee, or refuses to return to the psychiatric hospital from a community pass when requested to do so by the chief administrative officer or his the chief administrative officer's designee, law enforcement personnel of the State or of any of its subdivisions may, upon request of the chief administrative officer or his the chief administrative officer's designee, assist in the return of the patient to the psychiatric hospital.

Sec. 16. 34-B MRSA §3870,  as amended by PL 2005, c. 519, Pt. BBBB, §§11 and 12 and affected by §20, is further amended to read:

§ 3870. Convalescent status

1. Authority.   The chief administrative officer of a state mental health institute may release an improved patient on convalescent status when the chief administrative officer believes that the release is in the best interest of the patient and that the patient does not pose a likelihood of serious harm. The chief administrative officer of a nonstate mental health institute may release an improved patient on convalescent status when the chief administrative officer believes that the release is in the best interest of the patient, the patient does not pose a likelihood of serious harm and, when releasing an involuntarily committed patient, the chief administrative officer has obtained the approval of the commissioner after submitting a plan for continued responsibility.
A. Release on convalescent status may include provisions for continuing responsibility to and by the psychiatric hospital, including a plan of treatment on an outpatient or nonhospital basis.
B. Before release on convalescent status under this section, the chief administrative officer of a psychiatric hospital shall make a good faith attempt to notify, by telephone, personal communication or letter, of the intent to release the patient on convalescent status and of the plan of treatment, if any:

(1) The parent or guardian of a minor patient;

(2) The legal guardian of an adult incompetent patient, if any is known; or

(3) The spouse or adult next of kin of an adult competent patient, if any is known, unless the patient requests in writing that the notice not be given.

If the chief administrative officer of the psychiatric hospital to which the patient is currently admitted has reason to believe that notice to any of the individuals listed in this paragraph would pose risk of harm to the person patient, then notice may not be given to that individual.

C. The psychiatric hospital is not liable when good faith attempts to notify the parents, spouse or guardian have failed.
D. Before releasing a patient on convalescent status, the chief administrative officer of the psychiatric hospital shall advise the patient, orally and in writing, of the terms of the patient's convalescent status, the treatment available while the patient is on convalescent status and, if the patient is a voluntary patient, of the patient's right to request termination of the status and, if involuntarily committed, the means by which and conditions under which rehospitalization may occur.
2. Reexamination.   Before a patient has spent a year on convalescent status, and at least once a year thereafter, the chief administrative officer of the psychiatric hospital shall reexamine the facts relating to the hospitalization of the patient on convalescent status.
3. Discharge.   Discharge from convalescent status is governed as follows.
A. If the chief administrative officer of the psychiatric hospital determines that, in view of the condition of the patient, convalescent status is no longer necessary, the chief administrative officer shall discharge the patient and make a report of the discharge to the commissioner.
B. The chief administrative officer shall terminate the convalescent status of a voluntary patient within 10 days after the day the chief administrative officer receives from the patient a request for discharge from convalescent status.
C. Discharge from convalescent status occurs upon expiration of the period of involuntary commitment.
4. Rehospitalization.   Rehospitalization of patients under this section is governed as follows.
A. If, prior to discharge, there is reason to believe that it is in the best interest of an involuntarily committed patient on convalescent status to be rehospitalized, or if an involuntary involuntarily committed patient on convalescent status poses a likelihood of serious harm , the commissioner , or the chief administrative officer of the psychiatric hospital , with the approval of the commissioner, may issue an order for the immediate rehospitalization of the patient.
C. If the order is not voluntarily complied with, an involuntarily committed patient on convalescent leave may be returned to the psychiatric hospital if the following conditions are met:

(1) An order is issued pursuant to paragraph A;

(2) The order is brought before a District Court Judge or justice of the peace; and

(3) Based upon clear and convincing evidence that return to the psychiatric hospital is in the patient's best interest or that the patient poses a likelihood of serious harm, the District Court Judge or justice of the peace approves return to the psychiatric hospital.

After approval by the District Court Judge or justice of the peace, a law enforcement officer may take the patient into custody and arrange for transportation of the patient in accordance with the provisions of section 3863, subsection 4.

This paragraph does not preclude the use of protective custody by law enforcement officers pursuant to section 3862.

5. Notice of change of status.   Notice of the change of convalescent status of patients is governed as follows.
A. If the convalescent status of a patient in a psychiatric hospital is to be changed, either because of a decision of the chief administrative officer of the psychiatric hospital or because of a request made by a voluntary patient, the chief administrative officer of the psychiatric hospital shall immediately make a good faith attempt to notify, by telephone, personal communication or letter, of the contemplated change:

(1) The parent or guardian of a minor patient;

(2) The guardian of an adult incompetent patient, if any is known; or

(3) The spouse or adult next of kin of an adult competent patient, unless the patient requests in writing that the notice not be given.

If the chief administrative officer of the psychiatric hospital to which the patient is currently admitted has reason to believe that notice to any of the individuals listed in this paragraph would pose risk of harm to the person, then notice may not be given to that individual.

B. If the change in convalescent status is due to the request of a voluntary patient, the chief administrative officer of the psychiatric hospital shall give the required notice within 10 days after the day the chief administrative officer receives the request.
C. The psychiatric hospital is not liable when good faith attempts to notify the parents, spouse or guardian have failed.

Sec. 17. 34-B MRSA §3871,  as amended by PL 2005, c. 519, Pt. BBBB, §13 and affected by §20, is further amended to read:

§ 3871. Discharge

1. Examination.   The chief administrative officer of a psychiatric hospital shall, as often as practicable, but no less often than every 30 days, examine or cause to be examined every patient to determine that patient's mental status and need for continuing hospitalization.
2. Conditions for discharge.   The chief administrative officer of a psychiatric hospital shall discharge, or cause to be discharged, any patient when:
A. Conditions justifying hospitalization no longer obtain;
B. The patient is transferred to another hospital for treatment for that patient's mental or physical condition;
C. The patient is absent from the psychiatric hospital unlawfully for a period of 90 days;
D. Notice is received that the patient has been admitted to another hospital, inside or outside the State, for treatment for that patient's mental or physical condition; or
E. Although lawfully absent from the psychiatric hospital, the patient is admitted to another hospital, inside or outside the State, for treatment of that patient's mental or physical condition, except that, if the patient is directly admitted to another hospital and it is the opinion of the chief administrative officer of the psychiatric hospital that the patient will directly reenter the psychiatric hospital within the foreseeable future, the patient need not be discharged.
3. Discharge against medical advice.   The chief administrative officer of a psychiatric hospital may discharge, or cause to be discharged, any patient even though the patient is mentally ill and appropriately hospitalized in the psychiatric hospital, if:
A. The patient and either the guardian, spouse or adult next of kin of the patient request that patient's discharge; and
B. In the opinion of the chief administrative officer of the psychiatric hospital, the patient does not pose a likelihood of serious harm due to that patient's mental illness.
5. Notice.   Notice of discharge is governed as follows.
A. When a patient is discharged under this section, the chief administrative officer of the psychiatric hospital shall immediately make a good faith attempt to notify the following people, by telephone, personal communication or letter, that the discharge has taken or will take place:

(1) The parent or guardian of a minor patient;

(2) The guardian of an adult incompetent patient, if any is known; or

(3) The spouse or adult next of kin of an adult competent patient, if any is known, unless the patient requests in writing that the notice not be given or unless the patient was transferred from or will be returned to a state correctional facility.

If the chief administrative officer of the psychiatric hospital to which the patient is currently admitted has reason to believe that notice to any of the individuals listed in this paragraph would pose a risk of harm to the person, then notice may not be given to that individual.

B. The psychiatric hospital is not liable when good faith attempts to notify the parents, spouse or guardian have failed.
6. Discharge to progressive treatment program.   If a person participates in the progressive treatment program under section 3873, the time period of a commitment under this section terminates on entry into the progressive treatment program.

Effective September 20, 2007

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