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OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

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OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES. THREE TYPES OF HEARINGS. Involuntary admission of individuals to psychiatric units in private or state hospitals (“IVA”) or to Developmental Disability Administration (“DDA”) Facilities - PowerPoint PPT Presentation

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Page 1: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES
Page 2: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Involuntary admission of individuals to psychiatric units in private or state hospitals (“IVA”) or to Developmental Disability Administration (“DDA”) Facilities

Release or revocation of conditional release hearings for defendants the courts have found to be not criminally responsible and have committed to state hospitals (“NCRs”)

Hearings to compel psychiatric patients to take specified medication (“Forced Meds”)

Page 3: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES
Page 4: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Health-General Article § 10-632COMAR 10.21.01

Page 5: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

State psychiatric hospitalsFreestanding private psychiatric hospitals

Psychiatric wards in general hospitalsVeteran’s Administration hospitals

COMAR 10.21.01.01

Page 6: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

OAH shall hold IVA hearings within 10 days of a patient’s initial confinement

ALJ may postpone hearings, for good cause, for no more than 7 days

ALJ shall state the reasons for the PP on the record

Health-General Article §§ 10-632(b) and (c)(1)

Page 7: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

The patient has the right to attend or to waive his attendance

The patient has the right to testify and almost always does

The patient or the hospital sometimes calls the patient’s family member(s) as witnesses (who are required to receive notice of the hearing)

A public defender is automatically assigned to represent a patient

The public defender’s investigator will meet with the patient one or two days before the hearing

The patient may have a private attorney, at his/her own expense, or reject the public defender and proceed pro se

Page 8: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Knowingly and intelligently made

Witnessed by the individual's counsel

and

Witnessed by the ALJ (ALJ must see the patient and inquire whether he/she wants to attend the hearing)

COMAR 10.21.01.09C(2)(b)

Page 9: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

The hospital bears the burden of proof by clear and convincing

evidence

COMAR 10.21.01.09F

Page 10: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

ALJs shall require hospitals to present the testimony of one of the following, who has examined the patient

within 48 hours of hearing:

A psychiatrist A physician in an accredited psychiatric residency

program, who is under the supervision of a psychiatrist A psychologist

COMAR 10.21.01.09E(1)

Page 11: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

• Patient has a mental disorder

• Patient needs inpatient care or treatment

• Patient presents a danger to his/her/others’ life or safety

• Patient is unable or unwilling to be voluntarily admitted to the facility

and

• No less restrictive form of intervention is available that is consistent with the Patient’s welfare and safety

and if the Patient is 65 years old or older and is to be admitted to a State facility

• he/she has been evaluated by a geriatric evaluation team finding that no less restrictive form of care or treatment was appropriate

Health General Article § 10-632(e)(2); COMAR 10.21.01.09F

Page 12: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

IF ANY OF THE REQUIRED CRITERIA FOR RETENTION HAVE NOT BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE

OR

IF A SUBSTANTIALSUBSTANTIAL PROCEDURAL VIOLATION HAS OCCURRED

Page 13: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Procedural release is made at the conclusion of the hearing if:

An error in the process has occurred; The error is substantial; No other remedy is available, which is consistent

with due process and the protection of the patient’s rights

COMAR 10.21.01.09G(3)

Page 14: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Decision is made orally from the bench and written on multi-part decision form

Basis for decision is explained orally at hearing

Decision is final and appealable under the Administrative Procedure Act and both parties have the right to file an appeal.

Page 15: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

An individual who signs a petition for emergency evaluation may base the petition on:

Examination or observation or

Other information obtained that is pertinent to the factors giving rise to the petition.

A Peace Officer must base an EP on personal observation

Page 16: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Description of the patient’s behavior and/or statements or any other information that led the petitioner to believe that the patient has a mental disorder and presents a danger to his/hers/others’ life or safety

and Any other facts that support the need for an

emergency evaluation

Health-General Article § 10-622

Page 17: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

A peace officer who personally has observed the individual or the individual's behavior; or

An examining:– Physician– Psychologist– Clinical social worker – Licensed clinical professional counselor– Clinical nurse specialist in psychiatric and mental health

nursing – Psychiatric nurse practitioner– Health officer or designee of a health officer

Any other interested person, but a Court must approve the EP

Health-General Article § 10-622

Page 18: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

District Court judges are available 24/7 to review emergency petitions

To approve an EP, the court must find probable cause to believe that the emergency evaluee has shown the symptoms of a mental disorder and that the individual presents a danger to the life or safety of the individual or of others

If the court does not find probable cause, it shall indicate that fact on the petition and no further action may be taken under the petition

Health-General Article § 10-623

Page 19: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

A court may also order an emergency evaluation of an arrested individual upon a showing of probable cause that the individual has a mental disorder and that the individual presents a danger to the his/her/others life or safety

A court order under this section is a detainer against

an individual until:

◦ The charges against the individual are dismissed, nol prossed, or stetted

or

◦ The individual appears in court

Health-General Article § 10-626

Page 20: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

A court-endorsed EP serves as a bench warrant that allows a peace officer to transport an evaluee to the nearest emergency facility

A peace officer cannot act on an endorsed EP that is more than 5 days old

5-day limitation only applies to a court-endorsed EP signed by a lay petitioner

Health-General Article § 10-624

Page 21: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

If the EP is executed properly, the emergency facility shall accept the patient

Within 6 hours of arriving at an emergency facility, a physician shall examine the patient to determine whether he/she meets the requirements for involuntary admission

An emergency evaluee may not be kept at an emergency facility for more than 30 hours

Health-General Article § 10-624

Page 22: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

The Patient agrees to a voluntary admission (and is sufficiently competent to do so)

orPhysician certificates have been signed and proper notice of status/rights has

been provided to the patient

Page 23: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Patient may sign voluntary admission agreement Patient must be able to understand the nature of the

request for voluntary admission If the hospital refuses to accept the patient as a

voluntary admission, ALJ may decide whether patient is willing and able

If ALJ finds patient is willing and able and hospital still refuses to accept voluntary, ALJ must release patient because hospital has not proven the involuntary admission requirement

Hospitals generally accept the voluntary agreement upon ALJ’s findings

ALJ cannot force hospital to accept voluntary

Health-General Article § 10-609

Page 24: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Two physicians or one physician and one psychologist must certify the patient for involuntary admission

Certificates must be based on personal examination

The examination may not be done more than one week before the certificate is signed or more than 30 days before the inpatient facility receives the application for admission

Health-General Article § 10-616; COMAR 10.21.01.04

Page 25: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

One certificate must be accompanied by a note that

details why the patient meets the requirements for

involuntary admission

COMAR 10.21.01.04C(4)

Page 26: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Within 12 hours after initial confinement, each patient must be given and read (in a language understood by the Patient) a notice, including the following information:

Notice of the confinement of the individual The right to consult with a lawyer that the individual

chooses The availability of the legal aid bureaus, lawyer

referral services, and lawyer referral agencies The right of the individual to call or write a lawyer or a

referral agency The relevant law

Health-General Article § 10-631; COMAR 10.21.01.05

Page 27: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

IF THE PATIENT DOES NOT IF THE PATIENT DOES NOT UNDERSTAND THE NOTICE OF UNDERSTAND THE NOTICE OF RIGHTS/STATUS, THE FACILITY RIGHTS/STATUS, THE FACILITY SHALL GIVE THE NOTICE TO:SHALL GIVE THE NOTICE TO:

the parent or guardianthe parent or guardian the next of kin of the individual the next of kin of the individual the applicant for an involuntary admission of the the applicant for an involuntary admission of the

individual individual andand

and any other individual who has a significant and any other individual who has a significant interest in the status of the individualinterest in the status of the individual

Health-General Article § 10-631(b)(2)

Page 28: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Staff at an inpatient facility shall give oral and written notice of the scheduled hearing to the patient and the patient’s parent, guardian, or next of kin, containing the following:

◦ The date, time, and place that the hearing will be held◦ The legal authority for and purpose of the hearing◦ A short statement explaining why the individual's involuntary

admission is being sought◦ The standards that govern whether the patient shall be

involuntarily admitted◦ The patient’s right to consult with an attorney and the

availability of representation at the hearing by a public defender

and

◦ A list of the individual's rights at a hearing

COMAR 10.21.01.06

Page 29: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

After a patient is involuntarily committed, he/she is entitled to a subsequent hearing within 150 to180 days, and

After that hearing, he/she is entitled to a semiannual hearing

COMAR 10.21.01.08C

Page 30: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

At least 7 days before a semiannual hearing:

Two physicians or one physician and one psychologist shall complete new certificates

The Patient shall be given notice of rights/hearing

If the patient is 65 years or older and is in a State or VA hospital, GES approval must be obtained if it has not been obtained during that hospitalization

COMAR 10.21.01.08C

Page 31: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Criminal Procedure Article § 3-101 to 3-123No regulations

Page 32: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Spring Grove Hospital Center, Catonsville Springfield Hospital Center, Sykesville Walter P. Carter Center, Baltimore City Timothy B. Finan Center, Cumberland Eastern Shore Hospital Center, Easton Upper Shore Community Mental Health

Center, Chestertown Clifton T. Perkins Hospital Center, Jessup

Page 33: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES
Page 34: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

After a verdict of not criminally responsible, the court immediately shall commit the defendant to DHMH for institutional inpatient care or treatment

If the court commits a defendant who was found not criminally responsible, primarily because of intellectual disability, DHMH shall designate a facility for individuals with intellectual disabilities for care and treatment of the committed person

Criminal Procedure Article § 3-112

Page 35: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES
Page 36: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Not earlier than 1 year after the initial release hearing ends or was waived and not more than once a year thereafter

OR

At any time if the application is accompanied by an affidavit of a physician or licensed psychologist that attests to an improvement in the mental condition of the committed person since the last hearing

Criminal Procedure Article § 3-119

Page 37: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

A committed person is eligible for discharge from commitment only if that person would not be a danger, as a result of a mental disorder or intellectual disability, to self or to the person or property of others if discharged or if conditionally released from confinement

To be released, a committed person has the burden to establish, by a preponderance of the evidence, his/her eligibility for discharge or for conditional release.

Criminal Procedure Article § 3-114

Page 38: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Within 50 days after commitment to DHMH following an NCR finding:

ALJ shall hold a hearing to determine whether to recommend to the court that the patient is eligible for conditional release or discharge

ALJ may postpone the hearing for good cause

The committed person may waive the release hearing

Criminal Procedure Article § 3-115

Page 39: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

ALJ may admit and consider any relevant evidence, as the formal rules of evidence do not apply

DHMH (through the hospital’s/State’s representative) shall present the evaluation report on the committed person and any other relevant evidence

The patient has a right to be present; to offer evidence and to cross-examine adverse witnesses

The Patient has a right to be represented by counsel, including, if the committed person is indigent, the Public Defender or a designee of the Public Defender

Criminal Procedure Article § 3-115

Page 40: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Within 10 days after the hearing ends, the ALJ shall prepare a report of recommendations to the court that contains:

a summary of the evidence presented at the hearing

recommendations as to whether the committed person proved, by a preponderance of the evidence, eligibility for conditional release or eligibility for discharge

and

if the ALJ determines that the committed person proved eligibility for conditional release, the recommended conditions of the release (giving consideration to any specific conditions recommended by the DHMH facility that has charge of the committed person, the committed person, or counsel for the committed person)

Criminal Procedure Article § 3-116

Page 41: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

Within 30 days after the court receives the report and recommendation from OAH, the Court

may

on its own initiative hold a hearing

if timely exceptions are filed or if the court requires more information, hold a hearing (unless the committed person and the State's Attorney waive the hearing)

The court’s hearing is on the record that was made before the ALJ

The court may continue its hearing and remand to OAH to take additional evidence

Criminal Procedure Article § 3-117

Note: While our decisions are usually timely, Courts frequently take much more than 30 days to rule, so do not promise Patients a final decision by a set date

Page 42: OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

State's Attorney shall determine whether there is a factual basis for allegations

If the State's Attorney determines that there is a factual basis to believe that the committed person has violated any of the terms of a conditional release and believes further action by the court is necessary, the State's Attorney promptly shall:

◦ notify DHMH

and◦ file with the court a petition for revocation or

modification of conditional release

Criminal Procedure Article § 3-121