Chapter 26 Mental Health Laws

INTRODUCTION…… 26:1

DEFINITIONS……….. 26:1

CIVIL COMMITMENT.. 26:2

Voluntary Commitment………….. 26:3

Involuntary Commitment………….. 26:3

PATIENTS RIGHTS 26:4

MINORS 26:5

GUARDIANSHIP……. 26:5

MENTAL HEALTH PARITY 26:7

CONCLUSION……….. 26:7

INTRODUCTION

Mental Health Law is an often overlooked and sometimes misunderstood area of the medical profession. This chapter deals with the laws which govern doctors treating mentally ill individuals. These laws consist primarily of civil, voluntary and emergency commitment of individuals who need treatment for mental disorders. The hearing procedures, standards of proof for such hearings, and the rights of individuals involved in such proceedings will be discussed and applicable statutes outlined. This chapter also touches briefly on the law with regard to minors, patients rights, and guardianship. In Nevada, the procedures and laws that deal with commitment and legal treatment of mentally ill individuals are contained primarily in the Nevada Revised Statutes, Chapter 433A.

DEFINITIONS

The following definitions apply in all instances in this chapter, unless otherwise specified.

Mentally Ill Person: Any person whose capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his personal needs is diminished, as a result of a mental illness, to the extent that he presents a clear and present danger of harm to himself or others, but does not include any person in whom that capacity is diminished by epilepsy, mental retardation, Alzheimers disease, brief periods of intoxication caused by alcohol or drugs, or dependence upon or addiction to alcohol or drugs, unless a mental illness that can be diagnosed is also present which contributes to the diminished capacity of the person.

Harm to Himself: A person presents a clear and present danger of harm to himself if, within the preceding 30 days, he has, as a result of a mental illness:

(a) Acted in a manner from which it may reasonably be inferred that, without the care, supervision or continued assistance of others, he will be unable to satisfy his need for nourishment, personal or medical care, shelter, self-protection or safety, and if there exists a reasonable probability that his death, serious bodily injury or physical debilitation will occur within the next following 30 days unless he is admitted to a mental health facility pursuant to the provisions of NRS 433A.120 to 433A.330, inclusive, and adequate treatment is provided to him;

(b) Attempted or threatened to commit suicide or committed acts in furtherance of a threat to commit suicide, and if there exists a reasonable probability that he will commit suicide unless he is admitted to a mental health facility pursuant to the provisions of NRS 433A.120 to 433A.330, inclusive, and adequate treatment is provided to him; or

(c) Mutilated himself, attempted or threatened to mutilate himself or committed acts in furtherance of a threat to mutilate himself, and if there exists a reasonable probability that he will mutilate himself unless he is admitted to a mental health facility pursuant to the provisions of NRS 433A.120 to 433A.330, inclusive, and adequate treatment is provided to him.

Harm to Others: A person presents a clear and present danger of harm to others if, within the next preceding 30 days, he has, as a result of a mental illness, inflicted or attempted to inflict serious bodily harm on any other person, or made threats to inflict harm and committed acts in furtherance of those threats, and if there exists a reasonable probability that he will do so again unless he is admitted to a mental health facility pursuant to the provisions of NRS 433A.120 to 433A.330, inclusive, and adequate treatment is provided to him.

NRS 433A.115.

CIVIL COMMITMENT

Nevada law allows for admission to mental health facilities through three procedures: emergency admission, voluntary admission, or involuntary civil commitment. The last of these procedures requires judicial involvement. Special circumstances pertaining to commitment of minors is discussed below.

Voluntary Commitment

The law allows for individuals to apply for voluntary commitment or admission to any facility for treatment. NRS 433A.140. This procedure entails an individual presenting themselves to a facility and submitting to an examination by admission personnel, who determine whether such individual would benefit from treatment. A person who voluntarily admits himself to a facility must be immediately released upon submitting a written request. The facility has 24 hours after the request is filled to change the status of the person to an emergency admission pursuant to NRS 433A.145.

Involuntary Commitment

The most frequent arena where mental health and law intersect is the area of involuntary civil commitment. A mentally ill individual may be detained in a mental health facility for up to 72 hours on an emergency, non-court ordered basis for evaluation and treatment. A person must be released by the end of the 72 hour evaluation period, including weekends and holidays, unless during the 72 hour period, a petition is filed with the court for involuntary admission.

NRS 433A.150.

A mentally ill individual is involuntarily committed when an individual with standing^[1] files a petition with the court. The petition must be accompanied by:

(a) A certificate of a physician or licensed psychologist stating that he has examined the person alleged to be mentally ill and has concluded that as a result of mental illness the person is likely to harm himself or others; or

(b) A sworn written statement by the petitioner that:

(1) The petitioner has probable cause to believe that the person is mentally ill and, because of that illness is likely to harm himself or others; and

(2) The person has refused to submit to examination or treatment by a physician, psychiatrist or licensed psychologist.

A court must hear a involuntary commitment petition within 14 days of the emergency admission or filing of the petition, whichever is less. The individual is entitled to counsel, either private or court appointed. The court must order two psychologists or psychiatrists (one must be an M.D.) to examine the individual and submit their findings to the court 48 hours prior to the hearing. In order to find that an individual may be involuntarily committed, the court must find, by clear and convincing evidence that the individual is mentally ill or exhibits observable behavior such that he is likely to harm himself or others if allowed to remain at liberty.

NRS 433A.200 to 433A.310.

An involuntary commitment automatically expires at the end of 6 months if not terminated previously by the medical director of the public or private mental health facility. At the end of the court-ordered period of treatment, the Division, or any non-division mental health facility, may petition to renew the detention of the person for additional periods not to exceed 6 months each. For each renewal, the petition must set forth to the court specific reasons why further treatment would be in the persons own best interests. NRS 433A.310.

An individual may be conditionally released when the medical facility deems it appropriate. However, if an individual was held as a danger to others, he may be conditionally released only if, at the time of the release, written notice is given to the court which admitted him and to the district attorney of the county in which the proceedings for admission were held.

NRS 433A.380.

PATIENTS RIGHTS

Every individual admitted to a mental health facility is entitled to enumerated and basic rights. Every patient has the right to treatment, to participate in his treatment plan to the extent possible and receive considerate and respectful care. Every patient has the right to refuse treatment to the extent permitted by law and to refuse to participate in any medical experiments conducted at the facility. Although a patient has the right to refuse medication, this decision may be overridden by the physicians medical opinion that the individual is a danger to others or himself and that the medication will be beneficial. All individuals, however, have the unfettered right to be free from unnecessary medication or over-medication. NRS 449.720.

Every individual admitted is entitled to full confidentiality of his medical records, condition and treatment. Notice of procedures, hearings and enumerated rights must be given to the patient in a timely fashion. NRS 433A.350 – 433A.360.

MINORS

Minors are defined as any individual under 18 years of age, or a person less than 21 years of age and subject to the jurisdiction of the juvenile court for an act of delinquency that was committed before the person reached 18 years of age. NRS 62.020. Nevada law deals with the mentally ill minor through the mental health statutes in Chapter 433A, as well as the statutes pertaining to juveniles, specifically children in need of supervision, contained in Chapter 62. The Juvenile Division has jurisdiction regarding commitment of minors to psychiatric facilities.

Voluntary admission of a minor is achieved through a substituted judgment doctrine. In other words, a parent, custodian or legal guardian consents to voluntarily admit the minor child. The child is then a voluntary patient for as long as the parent consents and the facility deems treatment beneficial.

Involuntary commitment of minors is similar to that of adults, discussed above. If a parent does not voluntarily commit a minor to a facility, any of the other enumerated individuals (usually a social worker, psychologist, or psychiatrist) may petition the court for involuntary commitment. The hearing procedures, however, are relaxed for minors, such that an informal hearing may be held at the facility. The standard of proof required is lowered to a preponderance of the evidence that the child is in need of commitment. NRS 62.193.

GUARDIANSHIP

Mentally ill individuals who are so incapacitated as to be unable to conduct their own affairs, may have a guardian appointed for them. A proposed ward, a governmental agency, a nonprofit corporation, or any concerned person may petition the court for the appointment of a guardian. NRS 159.044. The petition must state:

(a) The name and address of the petitioner.

(b) The name, age and address of the proposed ward.

(d) The names and addresses, so far as they are known to the petitioner, of the relatives of the proposed ward within the second degree.

(e) The name and address of the proposed guardian.

(f) That the proposed guardian has never been convicted of a felony.

(g) A summary of the reasons why a guardian is needed.

(h) Whether the appointment of a general or a special guardian is sought.

(i) A general description and the probable value of the property of the proposed ward and any income to which he is entitled, if the petition is for the appointment of a guardian of the estate or a special guardian. If any money is paid or is payable to the proposed ward by the United States through the Department of Veterans Affairs, the petition must so state.

(j) The name and address of any person or institution having the care, custody or control of the proposed ward.

(k) The relationship, if any, of the petitioner to the proposed ward and the interest, if any, of the petitioner in the appointment.

(l) Requests for any of the specific powers necessary to enable the guardian to carry out the duties of the guardianship.

(m) Whether the guardianship is sought as the result of an investigation of a report of abuse or neglect.

A hearing is then held to determine whether the incapacitated individual is incompetent and in need of a guardianship. If so, the court may appoint a suitable guardian, with preferences given to relatives. Three types of guardianships may be awarded by the court: guardian of the person, guardian of the estate of the person, or guardian of the person and the estate. Guardians of the person have a duty to provide for the wards needs and provide proper care, including providing food, clothing, shelter, any medical treatment and education. Guardians of the estate have a duty to mange the estate of the ward in the best interest of the ward. The court may also appoint a special guardianship if the individual is not incompetent, but of a limited capacity. The special guardian would be appointed to carry out only those duties specified by the court.

NRS 159.061 to NRS 159.083.

A guardianship continues indefinitely until death of the ward or petition of the court to discontinue the guardianship. Any individual may file a petition for termination of guardianship. Upon filing of the petition, a hearing will be held to determine if, in fact, the guardianship need to continue. A petition may be filed to dismiss any particular individual as guardian, if the guardian is not acting in the best interest of the ward or is delinquent in his duties.

MENTAL HEALTH PARITY

Senate Bill 55, passed in 1999, requires health insurance in Nevada to cover up to 40 days of inpatient hospitalization per year and 40 outpatients visits per year for conditions relating to severe mental illness.^[2] This requirement may be eliminated by any insurer by a showing, at the end of one year, that premiums charged for that policy would have to be increased by more than 2 percent as a result of providing this coverage. The Commissioner of Insurance will then issue an exemption to that affected insurer.

CONCLUSION

The laws surrounding the treatment and care of the mentally ill are often overlooked or are unfamiliar to many medical professionals. The increasing number of mentally ill, along with the increasing legal attention to the rights of the mentally ill, requires that medical professionals develop a good sense of what the law dictates.

^[1] These individuals include the spouse, parent, adult children or legal guardian of the person to be treated; or any physician, psychologist, social worker, or registered nurse; an accredited agent of the department, or any officer authorized to make arrests in the State of Nevada. NRS 433A.150.

^[2] Severe mental illness is defined as the following Axis I mental disorders: schizophrenia, schizoaffective disorder, bipolar disorder, panic disorder and obsessive-compulsive disorder. SB55 of the 1999 Legislature.