CHAPTER 570

FORMERLY

HOUSE BILL NO. 859

AS AMENDED BY HOUSE AMENDMENTS NO. 1, 3 AND 5

AN ACT TO AMEND CHAPTER 51, TITLE 16 DELAWARE CODE RELATING TO THE PROCEDURE FOR THE INVOLUNTARY COMMITMENT OF MENTALLY ILL PERSONS TO THE DELAWARE STATE HOSPITAL AND OTHER HOSPITALS AND DISCHARGE THEREFROM.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Section 5125, Chapter 51, Title 16, Delaware Code, by striking said section in its entirety and inserting in lieu thereof a new Section 5125 to read as follows:

§5125. Involuntary commitment of the mentally ill; discharge; procedure

(a) Subject to the provisions of Sections 5121 - 5123 of this Title, no person shall be committed pursuant to this Chapter as a patient to the Delaware State Hospital or any other hospital as defined in Section 5122 (a) of this Title, unless:

(i) he is determined by the Superior Court of the State of Delaware to be so mentally ill as to be likely to cause injury to himself or others if allowed to remain at liberty; or to be in need of care or treatment in a mental hospital and because of his illness lacks sufficient insight or capacity to make responsible decisions with respect to his hospitalization; and

() the procedural requirement of this section are fully complied with.

(b) An action to commit any person under this section shall be commenced by the filing of a verified complaint in the Superior Court of the State of Delaware. The complaint shall aver that the complainant reasonably and in good faith believes that the person named in the complaint should be involuntarily committed. It shall also state with particularity the facts supporting such belief, as well as the name and address of the spouse or other nearest relative of the person named in the complaint.

(c) The Court shall forthwith determine whether the complaint and the record show probable cause for detaining the person named in the complaint for physical and mental examination. If no probable cause is found to exist, the complaint shall be dismissed. If probable cause is found to exist, the Court shall forthwith order the Delaware State Police or the appropriate local police agency to take the person named in the complaint into custody and deliver him to the Delaware State Hospital (or to any other hospital as defined in Section 5122(a) of this Title). Such person shall be treated with due courtesy and dignity, consistent with the need to protect the safety of such person and the public. The Court shall at the same time order a date for a hearing to determine whether such person shall be involuntarily committed, and shall notify such person's nearest relatives of the hearing date: Absent exceptional circumstances, such hearing shall be held not more than fifteen (15) days from the time the hearing date is scheduled.

(d) Upon admission to the hospital of the person named in the complaint, as a patient, the hospital shall within five working days:

(i) cause the patient to be physically and mentally examined and treated, using such diagnostic and therapeutic measures as it deems necessary;

() determine whether in its opinion the patient is so mentally ill as to be likely to cause injury to himself or others if allowed to remain at liberty, or to be in need of care and treatment in a mental hospital and because of his mental illness lacks sufficient insight or capacity to make responsible decisions with respect to his hospitalization; and

() promptly advise the Court and the patient's counsel of its findings.

(e) The person whose confinement is sought shall be entitled:

(i) to be present at the hearing and to have counsel appointed by the Court, if he is unable to afford counsel;

(ii) to be examined by an independent psychiatrist not employed by the hospital either chosen by such person or appointed by the Court if such person is unable to afford a psychiatric examination, and to have such independent expert testify in his behalf;

(iii) to a trial by jury if such person so requests; otherwise trial shall be held before the Court;

(iv) to conduct such discovery as is permitted by the Rules of Court; and to summon and cross-examine witnesses;

() to be advised of the foregoing rights upon being taken into custody.

The Court, at the time the hearing is scheduled, shall enter such orders as will effectuate the rights enumerated in this subsection.

(f) The hearing shall not be public unless the patient so requests, and the records of the proceeding shall be kept confidential unless the Court for good cause orders otherwise. The Court shall base its determination upon the expert opinions of the hospital and of at least one independent psychiatrist whose qualifications are acceptable to the Court; however, nothing herein shall preclude the Court from hearing such other evidence as it deems proper.

(g) The court (or jury, as the case may be) may find:

(i) that the patient is not mentally ill, in which case the patient shall be discharged and released forthwith;

(ii) that the evidence is insufficient for a determination in which case a second hearing must be held within fifteen (15) days of such finding; or

() that the patient is mentally ill and should be committed, in which case the Court shall order that the patient be committed to the custody of the hospital for a period not to exceed 180 days, for treatment and further evaluation. In determining the disposition of the patient, the Court shall consider all available alternatives to inpatient confinement at the hospital, and shall order such disposition as imposes the least restraint upon the patient's liberty and dignity, consistent with affording appropriate mental health treatment and care, and consistent with eliminating the danger that he can cause injury to others.

(h) Upon the commitment of any patient to its custody, the hospital shall:

(i) furnish him with a written statement of his rights under this section and under Section 5126 of this Title;

(ii) render adequate treatment to the patient in accordance with professional standards. If at any time during the 180 day period the hospital determines that the patient is no longer mentally ill and that the patient's continued commitment is unnecessary, it shall promptly advise the Court. The Court, upon receiving such advice, shall forthwith order that the patient be discharged.

(iii) at the expiration of 180 days, notify the Court of the patient's physical and mental status, if the patient has not been otherwise discharged.

(i) Upon rehearing by the Court at the expiration of 180 days, the Court may decide that:

(i) the patient is not mentally ill in which case the patient shall be discharged forthwith;

(ii) a further 180 day period of treatment is necessary, in which case the patient shall be recommitted to the custody of the hospital; or

() the patient requires continuing observation and treatment for an indefinite period, in which case the patient shall be recommitted to the custody of the hospital for an indefinite period, and the hospital shall report to the Court at intervals not less than 180 days as to the continued need for commitment. If the hospital determines that continued commitment of the patient is no longer necessary, it shall promptly advise the Court. Upon receiving such advice, the Court shall forthwith order the patient discharged.

(j) The patient may appeal any order of disposition to the Supreme Court within thirty (30) days of the entry of the order. The appeal shall not operate as a stay of the order unless the Supreme Court so orders.

(k) The patient, after the order of disposition becomes final, shall be entitled to petition the Court for his release upon a writ of habeas corpus on the following grounds:

(i) that the proceeding which led to his commitment was illegal, provided that that issue has not been previously litigated;

Or

(ii) that although the original confinement was legal, continued confinement is not warranted.

Section 2. Section 5124, Chapter 51, Title 16, Delaware Code, is hereby repealed.

Approved July 29, 1974.