* Mental Health Law R.I. Gen. Laws section Jane Morgan, Esq. Associate Director, OHHS Heather Daglieri, Esq. Administrator, Office of Licensure BHDDH

* OVERVIEW I. History and Statutory Basis II.Court-Ordered Outpatient Treatment III.Competency and Informed Consent

* History & Statutory Basis Historical Context: Imagine the Pastore Campus 50 years ago. 1962, Rhode Island enacts the Community Mental Health Centers Law On October 31, 1963, President Kennedy signed the Community Mental Health Centers Act into law Rhode Island enacts the Mental Health Law

CIVIL RIGHTS OF THE MENTALLY DISABLED May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty. In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.... O'Connor v. Donaldson, 422 US 563 (1975)

History & Statutory Basis O’Connor v. Donaldson 422 US 563 landmark decision in mental health law no constitutional basis for confining a mentally ill patient involuntarily to an institution if they are dangerous to no one and can live safely in freedom.

History & Statutory Basis The Rhode Island Mental Health Law was carefully crafted in order to guarantee that the liberty of an individual patient would be scrupulously protected. In Re Doe, 440 A.2d 712 The statute provides due process to ensure that a patient may not be forgotten or “warehoused” when the need for supervised care, and treatment no longer exist.

History & Statutory Basis Mental Health Law covers the reception, care and treatment of persons with mental disabilities and provides the process by which an individual diagnosed with a mental disability can be detained in a “facility” and have his/her disability assessed and/or treated against his/her will.mental *

History & Statutory Basis Civil process and subject to the due process clause of the 14th Amendment. Involuntary commitment severely infringes on a person's right to be free from governmental restraint and the right to not be confined unnecessarily.14th Amendment Deprivation of a liberty interest for treatment NOT punishment. *

History & Statutory Basis Only Behavioral Healthcare Organizations and Hospitals designated as “facilities” by the State Mental Health Authority/BHDDH can hold patients against their will: All of the CMHCs (including group homes operated by the CMHCs); and ESH, Butler, Kent Unit, Bradley, Newport, Roger Williams, Fatima, RI Hospital (including a unit within Hasbro), Landmark. *

RI Gen. Laws § Mental Health/ Types of Admissions Voluntary admissions § * Presumption of competency; Guardians and POAs cannot admit persons to “facilities” * Intents to Leave (“ITLs”) Involuntary admissions Emergency Certification § * Up to 10 days Civil Court Certification § * District Court (adults) or Family Court (minors)

Mental Health Court Mental Health Court is held every Friday at either ESH or Butler Hospital and a District Court Judge presides. Petitioner is represented by State Attorney and Respondent is represented by OMHA. This is an adversarial proceeding that does not involve “best interest” standards. Patient has a right to a hearing and to be certified to the least restrictive environment. *

Mental Health Court Petitioner has to show by clear and convincing evidence: patient has a mental disability, is in need of care and treatment, that there is a serious likelihood of harm to the individual and/or others by reason of his/her mental disability if unsupervised in the community; and there are no less restrictive alternatives. *

RIGL § (7) Definitions “likelihood of serious harm” (i) A substantial risk of physical harm to the person himself or herself as manifested by behavior evidencing serious threats of, or attempts at, suicide; (ii) A substantial risk of physical harm to other persons as manifested by behavior or threats evidencing homicidal or other violent behavior; or (iii) A substantial risk of physical harm to the mentally disabled person as manifested by behavior which has created a grave, clear, and present risk to his or her physical health and safety.

Definitions “likelihood of serious harm” (continued) (iv) In determining whether there exists a likelihood of serious harm the physician and the court may consider previous acts, diagnosis, words or thoughts of the patient. If a patient has been incarcerated, or institutionalized, or in a controlled environment of any kind, the court may give great weight to such prior acts, diagnosis, words, or thoughts.

Court-Ordered Outpatient Treatment (COOPT) Least restrictive environment with supervised community treatment. In Re: RB allows for patients to be civilly certified to involuntary treatment in the community. Used in some forensic cases to help with discharge planning This is a lesser deprivation of liberty than that of criminal court *

COOPT The Court must hear the same evidence as with civil court certification. AND that there is an available less restrictive alternative to inpatient treatment. group home community mental health center mobile treatment team supervision *

COOPT Mental health court supervision If non compliant can be re hospitalized 6 month order which can be extended by filing to recertify. *

COOPT COOPTs are used in forensic cases to divert mentally ill person from the criminal justice system and into outpatient mental health treatment. Disposition is based on a number of factors Seriousness of charge Treatment needs Psychiatric risk factors for violence Non-psychiatric risk factors for violence *

Recertification Towards the end of the 6 month COOPT the BHDDH Legal Office will send a notice to the provider informing them of the upcoming end of the certification period and requesting notice from the provider as to whether or not they will recertify the patient. If the decision is not to recertify the patient, BHDDH will inquire as to why the treatment team has reached such a decision.

Legal Standard for Recertification Court can consider the patient’s compliance during the previous 6 months under the COOPT. Also consider the consequences of the patient’s non compliance prior the COOPT. The comparison in the reduction of hospitalization and/or criminal involvement can be used as evidence to certify

Effectiveness of COOPT New York Office of Mental Health in 2005 and 2009 conducted studies of the impact of COOPT. Specifically, the OMH study found that for those receiving COOPT: 74 percent fewer experienced homelessness; 77 percent fewer experienced psychiatric hospitalization; 83 percent fewer experienced arrest; and 87 percent fewer experienced incarceration.

Effectiveness of COOPT Comparing the experience of the COOPT patients over the first six months of COOPT to the same period immediately prior to the COOPT, the OMH study found: 55 percent fewer recipients engaged in suicide attempts or physical harm to self; 49 percent fewer abused alcohol; 48 percent fewer abused drugs; 47 percent fewer physically harmed others;

Effectiveness of COOPT 46 percent fewer damaged or destroyed property; and 43 percent fewer threatened physical harm to others.

Effectiveness of COOPT Another 2010 study tracked Medicaid claims and state reports for 3,576 COOPT consumers from They found that: the likelihood of psychiatric hospital admission was significantly reduced by ~25% during the initial six-month court order and by over 1/3 during a subsequent six-month renewal of the order compared with the period before initiation of the court order. Swartz, MS et al (2010). "Assessing outcomes for consumers in New York's assisted outpatient treatment program". Psychiatric Services 61: PMID PMID

Competency and Informed Consent Case law began to shift focus from standards of commitment to standards of treatment once hospitalized involuntarily committed patients who have not been found incompetent, barring an emergency, have the right to refuse medication and have the right to least restrictive treatment. Due process must be followed to forcibly medicate an individual.

Competency and Informed Consent What is fully informed consent ? Communicating a choice (usually, “no,” which is the reason for the hearing) Understanding relevant information Manipulating information rationally Appreciating the situation and its consequences *

* Competency and Informed Consent If a person is competent they can refuse to take medication even if they are certified under the Mental Health Law. Mental Health Law specifically provides that a person can not be presumed incompetent solely because they are admitted and/or certified under the Mental Health Law. Only courts have legal authority to order involuntary treatment A person has a liberty interest in being free from the administration of drugs

Petitions for Instructions To provide substituted consent for an incompetent individual a Petition for Instructions is usually filed with the Petition for Civil Court Certification for inpatient treatment or COOPT. However, PFIs may also be filed on voluntary patients and Forensic patients. Equitable legal tool with no statutory basis. District Court Judge sits in equity on the bench for the month assigned to Mental Health Calendar. By practice, PFI Orders have a six (6) month duration. *

Petitions for Instructions Petition for Instructions can seek the Court’s substituted consent for any invasive medical procedure or medication: Lab work & imaging studies Urine toxicology Medications ECT and surgery *

* Petitions for Instructions The Court must hear evidence proving: The person has a mental disability; the person is unable to give informed consent by reason of his/her mental disability; the benefits of treatment outweigh the risks; & person does not have a legal representative. If a PFI is granted by the Court, treatment occurs. If a PFI is denied by the Court, the person can continue to make treatment decisions, including refusing treatment.

* Petition for Instructions The long-term clinical benefits of coercive treatment Providing status updates to the court Upon discharge the Petition for Instruction becomes part of the treatment order to: the outside agency if accompanied with a COOPT Extending the Petition for Instruction To the ACI Reducing likelihood of relapse