34-B §5476. Judicial commitment - Maine Statutes

Title 34-B: BEHAVIORAL AND DEVELOPMENTAL SERVICES HEADING: PL 1995, C. 560, PT. K, §7 (RPR); 2001, C. 354, §3 (AMD)

Chapter 5: MENTAL RETARDATION

Subchapter 3: SERVICES FOR MENTALLY RETARDED PERSONS

Article 3: PROCEDURES

§5476. Judicial commitment

Any client recommended for admission to a mental retardation facility may be admitted by judicial commitment according to the following procedures. [2003, c. 389, §19 (AMD).]

1. Application to the District Court. If the chief administrative officer of the facility determines that the admission of the client pursuant to section 5473, subsection 2, is not suitable, or if the client declines admission pursuant to section 5473, subsection 2, the chief administrative officer may apply to the District Court having territorial jurisdiction over the facility for the issuance of an order of judicial commitment.

[ 1983, c. 580, §23 (RPR) .]

2. Time of application. The chief administrative officer shall file the application within 5 days from the day of admission of the client under this section, excluding Saturdays, Sundays and legal holidays.

[ 1983, c. 580, §23 (RPR) .]

3. Accompanying documents. The application shall be accompanied by:

A. A written application, made subject to the prohibitions and penalties of section 3805 and made by any health officer, law enforcement officer or other person, stating:

(1) His belief that the client is mentally retarded and poses a likelihood of serious harm; and

(2) The grounds for this belief; [1983, c. 580, §23 (NEW).]

B. A dated certificate, signed by a private licensed physician or a private licensed clinical psychologist, stating that:

(1) He has examined the client on the date of the certificate, which date may not be more than 3 days before the date of admission to the facility; and

(2) He is of the opinion that the client is mentally retarded and poses a likelihood of serious harm; and [1983, c. 580, §23 (NEW).]

C. A certificate of the facility's examining physician or psychologist, stating that he has examined the client and it is his opinion that the client is mentally retarded and poses a likelihood of serious harm:

(1) The examiner may not be the certifying examiner under paragraph B; and

(2) If the examination is not held within 24 hours after the time of admission or if the facility's examining physician or psychologist fails or refuses to make the required certification, the client shall be immediately discharged. [1983, c. 580, §23 (NEW).]

[ 1983, c. 580, §23 (NEW) .]

4. Notice of receipt of application. The giving of notice of receipt of application under this section is governed as follows.

A. Upon receipt by the District Court of the application and accompanying documents specified in this section, the court shall cause written notice of the application:

(1) To be given personally or by mail to the client within a reasonable time before the hearing, but not less than 3 days before the hearing; and

(2) To be mailed to the client's guardian, if known, and to his spouse, his parent or one of his adult children, or if none of these persons exist or if none of them can be located, to one of his next of kin or an advocate. [1983, c. 580, §23 (NEW).]

B. A docket entry is sufficient evidence that notice under this subsection has been given. [1983, c. 580, §23 (NEW).]

[ 1983, c. 580, §23 (NEW) .]

5. 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 this section, the court shall forthwith cause the client to be examined by 2 examiners.

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

(2) One of the examiners shall be a physician or psychologist chosen by the client or by his counsel, if the chosen physician or psychologist is reasonably available.

(3) Neither examiner appointed by the court may be the certifying examiner under subsection 3, paragraph B or C. [1983, c. 580, §23 (NEW).]

B. The examination shall be held at the facility or at any other suitable place not likely to have a harmful effect on the well-being of the client. [1983, c. 580, §23 (NEW).]

C. If the unanimous reports of the examiners are to the effect that the client is not mentally retarded or does not pose a likelihood of serious harm, the application shall be dismissed and the client shall be ordered discharged forthwith. [1983, c. 580, §23 (NEW).]

D. If the report of either or both of the examiners is to the effect that the client is mentally retarded and 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. [1983, c. 580, §23 (NEW).]

[ 1983, c. 580, §23 (NEW) .]

6. Hearing. Hearings under this section are governed as follows.

A. The District Court shall hold a hearing on the application not later than 15 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 client discharged forthwith.

(3) In computing the time periods set forth in this paragraph, the District Court Rules of Civil Procedure shall apply. [1983, c. 580, §23 (NEW).]

B. 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 well-being of the person. [1983, c. 580, §23 (NEW).]

C. The court shall receive all relevant and material evidence which may be offered in accordance with accepted rules of evidence and accepted judicial dispositions.

(1) The client, the applicant and all other persons to whom notice is required to be sent shall be afforded an opportunity to appear at the hearing to testify.

(2) The client and the applicant shall be afforded the opportunity to cross-examine witnesses.

(3) The court may, in its discretion, receive the testimony of any other person and may subpoena any witness. [1983, c. 580, §23 (NEW).]

D. The client shall be afforded an opportunity to be represented by counsel and, if neither the client nor others provide counsel, the court shall appoint counsel for the client. [1983, c. 580, §23 (NEW).]

E. In addition to proving that the client is mentally retarded, the applicant shall show:

(1) By evidence of the client's actions and behavior, that the client poses a likelihood of serious harm; and

(2) That after full consideration of less restrictive treatment settings and modalities, judicial commitment to a mental retardation facility is the best available means for the treatment or security of the client. [1983, c. 580, §23 (NEW).]

F. In each case, the applicant shall submit to the court, at the time of the hearing, testimony indicating the individual treatment plan to be followed by the facility's staff, if the client is committed under this section, and shall bear any expense for this purpose. [1983, c. 580, §23 (NEW).]

G. A stenographic or electronic record shall be made of the proceedings in all judicial commitment hearings.

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

(2) The record, all notes, exhibits and other evidence shall be retained as part of the District Court records for a period of 2 years from the date of the hearing. [1983, c. 580, §23 (NEW).]

H. The hearing shall be confidential. No report of the proceedings may be released to the public or press, except by permission of the client, or his counsel and with approval of the presiding District Court Judge, except that the court may order a public hearing on the request of the client or his counsel. [1983, c. 580, §23 (NEW).]

[ 1983, c. 580, §23 (NEW) .]

7. 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 client is mentally retarded and that his recent actions and behavior demonstrate that he poses a likelihood of serious harm;

(2) That judicial commitment to the facility is the best available means for treatment or security of the client; and

(3) That it is satisfied with the individual treatment plan offered by the facility. [1983, c. 763, (AMD).]

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 offered, it may continue the case for not longer than 10 days, pending reconsideration and resubmission of an individual treatment plan by the facility. [1983, c. 580, §23 (NEW).]

[ 1983, c. 763, (AMD) .]

8. Commitment. Upon making the findings described in subsection 7, the court may order commitment of the client to the facility 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. [1983, c. 580, §23 (NEW).]

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 shall order the person discharged forthwith. [1983, c. 580, §23 (NEW).]

[ 1983, c. 580, §23 (NEW) .]

9. Continued judicial commitment. If the chief administrative officer of the facility determines that continued judicial commitment is necessary for a person who has been ordered by the District Court to be committed, he shall, not later than 30 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 which has territorial jurisdiction over the facility for a hearing to be held under this section.

[ 1983, c. 580, §23 (NEW) .]

10. Transportation. Unless otherwise directed by the court, the sheriff of the county in which the District Court has jurisdiction and in which the hearing takes place shall provide transportation to any facility to which the court has committed the person.

[ 1983, c. 580, §23 (NEW) .]

11. Expenses. With the exception of expenses incurred by the applicant pursuant to subsection 6, paragraph F, the District Court shall be responsible for any expenses incurred under this section, including fees of appointed counsel, witness and notice fees and expenses of transportation for the person.

[ 1983, c. 580, §23 (NEW) .]

12. Appeals. A person ordered by the District Court to be committed to the facility may appeal from that order to the Superior Court.

A. The appeal shall be on questions of law only. [1983, c. 580, §23 (NEW).]

B. Any findings of fact of the District Court may not be set aside unless clearly erroneous. [1983, c. 580, §23 (NEW).]

C. The order of the District Court shall remain in effect pending the appeal. [1983, c. 580, §23 (NEW).]

D. The District Court Rules of Civil Procedure and the Maine Rules of Civil Procedure apply to the conduct of the appeals, except as otherwise specified in this subsection. [1983, c. 580, §23 (NEW).]

[ 1983, c. 580, §23 (NEW) .]

13. Rules. If necessary, the commissioner shall promulgate rules for the effective implementation of this section.

[ 1983, c. 580, §23 (NEW) .]

SECTION HISTORY

1983, c. 459, §7 (NEW). 1983, c. 580, §23 (RPR). 1983, c. 763, (AMD). 2003, c. 389, §19 (AMD).