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State Mental Hygiene Laws


 Here are the "emergency detention" and quality of care provisions of the New York State Mental Hygiene Laws, which are broadly similar in other states.  See the Other States page for more information.



N.Y. Mental Hygiene Law § 9.39 : NY Code - Section 9.39: Emergency admissions for immediate observation, care, and treatment

 (a) The director  of  any  hospital  maintaining  adequate  staff  and

  facilities  for  the  observation,  examination,  care, and treatment of

  persons alleged to be mentally ill and approved by the  commissioner  to

  receive  and  retain  patients  pursuant to this section may receive and

  retain therein as a patient for a period  of  fifteen  days  any  person

  alleged  to have a mental illness for which immediate observation, care,

 and treatment in a hospital is appropriate and which is likely to result

  in serious harm to himself or others. "Likelihood to result  in  serious

  harm" as used in this article shall mean:

    1.  substantial  risk  of  physical  harm  to himself as manifested by

  threats of or attempts at  suicide  or  serious  bodily  harm  or  other

  conduct demonstrating that he is dangerous to himself, or

    2.  a substantial risk of physical harm to other persons as manifested

  by homicidal or other violent behavior by which  others  are  placed  in

  reasonable fear of serious physical harm.


N.Y. Mental Hygiene Law § 9.27 : Involuntary admission on medical certification.


    (a)  The  director  of  a hospital may receive and retain therein as a

  patient any person alleged to be mentally ill and in need of involuntary

  care and treatment upon the certificates of  two  examining  physicians,

  accompanied  by  an  application  for  the admission of such person. The

  examination may be conducted jointly but each examining physician  shall

  execute a separate certificate.

    (b)  Such application must have been executed within ten days prior to

  such admission….

    (c) Such application shall contain a statement of the facts upon which

  the allegation of mental illness and need for  care  and  treatment  are

  based  and  shall  be  executed  under  penalty of perjury but shall not

  require the signature of a notary public thereon.

    (d)  Before  an  examining  physician  completes  the  certificate  of

  examination  of  a  person  for involuntary care and treatment, he shall

  consider alternative forms of care and treatment that might be  adequate

  to   provide  for  the  person's  needs  without  requiring  involuntary

  hospitalization. If the examining physician knows that the person he  is

  examining  for  involuntary  care  and  treatment  has  been under prior

  treatment, he shall, insofar as possible, consult with the physician  or

  psychologist  furnishing  such  prior  treatment prior to completing his

  certificate. Nothing in this section shall prohibit  or  invalidate  any

  involuntary  admission  made  in  accordance with the provisions of this

  chapter.

    (e) The director of the hospital where such person  is  brought  shall

  cause such person to be examined forthwith by a physician who shall be a

  member of the psychiatric staff of such hospital other than the original

  examining  physicians  whose certificate or certificates accompanied the

  application and, if such person is found to be in  need  of  involuntary

  care  and  treatment,  he may be admitted thereto as a patient as herein

  provided.

    (f)  Following  admission  to  a  hospital,  no patient may be sent to

  another hospital by any form of involuntary admission unless the  mental

  hygiene legal service has been given notice thereof.

    …


 

14 NYCRR 27.8

 

14 N.Y. Comp. Codes R. & Regs. 27.8

 

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK

TITLE 14. DEPARTMENT OF MENTAL HYGIENE

CHAPTER II. ALL FACILITIES

SUBCHAPTER B. INSTITUTIONAL CARE AND TREATMENT

PART 27. QUALITY OF CARE AND TREATMENT

Current through May 15, 2011



* Section 27.8.* Care and treatment; right to object and appeal.


(a) General. Patients may object to any form of care and treatment and may appeal decisions with which they disagree.

(b) Effect of objection on treatment process.

(1) Emergency treatment. Facilities may give treatment, other than treatment for which informed consent is required by section 27.9 of this Part, at any time to all patients, despite objection in a case where the treatment appears necessary to avoid serious harm to life or limb of the patients themselves or others. Emergency treatment in situations covered by section 27.9 shall be pursuant to such section.

(2) Patients on voluntary or informal status. Patients who are on a voluntary or informal status may not be given treatment over their objection. When any such patient objects to all recommended forms of treatment, the facility director may, after notification to the patient, discharge the patient with recommendations for outpatient care if indicated, or, if appropriate, take steps to convert the patient to involuntary status as set forth in the Mental Hygiene Law. When a patient is discharged because of objection to all recommended forms of treatment, the facility director should have the patient's family notified if feasible.

(3) Patients on involuntary status. Patients held on involuntary status may be given treatment over their objections only if the following conditions are complied with:

(i) If the objections raised by the patient are disposed of as set forth in subdivisions (c), (d) and (e) of this section.

(ii) If the objection is based on an assertion that the treatment is in conflict with a religious belief of the patient, only if there is a court order authorizing the particular treatment. (iii) If the type of treatment to be provided required informed consent as required by section 27.9 of this Part, only to the extent allowed by such section.

(iv) If conditions specified in paragraph (1) of this subdivision (need for emergency treatment) are present.

(c) Review of objection. Prior to initiating a treatment procedure over the objection of a patient, such objection must be reviewed by the head of the service. The decision of the head of the service shall be communicated to the patient and his or her representative, if any, and to the Mental Health Information Service, and treatment may be initiated unless the patient or her or his representative chooses to appeal this decision to the director. The appeal procedure shall be in accordance with subdivision (e) of this section.

(d) Patient's right to representative. Patients have the right to request that legal counsel or other concerned person represent them in the formal appeal procedures authorized in this section.

(e) Appeal.

 (1) If the patient or a representative of the patient has appealed to the facility director from a decision of the head of the service with respect to an objection to treatment, the director shall consider the appeal and make a decision. The decision of the director shall be communicated to the patient and the patient's representative, if any, and to the Mental Health Information Service.

(2) A patient shall also have the right to appeal to the director any decision to which he objects relating to his care and treatment at the facility.

(3) In cases of facilities operated by the Office of Mental Health, the patient may appeal from any such decision of the director to the commissioner or his or her designee. Such request for review must be filed with the director within five days, excluding Saturdays, Sundays, and holidays, after notification of the director's decision. The director of the facility shall forthwith transmit the request to the commissioner or his or her designee. When the commissioner or his or her designee decides the issue, the patient, the patient's representative, and the director of the Mental Hygiene Legal Service shall be notified of the decision.

14 NY ADC 27.8

14 NY ADC 27.8

2008 WL 75301987

14 NY ADC 27.8



14 NYCRR 27.9

 

14 N.Y. Comp. Codes R. & Regs. 27.9

 

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK

TITLE 14. DEPARTMENT OF MENTAL HYGIENE

CHAPTER II. ALL FACILITIES

SUBCHAPTER B. INSTITUTIONAL CARE AND TREATMENT

PART 27. QUALITY OF CARE AND TREATMENT



* Section 27.9.* Surgery and certain other treatments.


Electro-convulsive therapy, surgery, major medical treatment or the use of experimental drugs or procedures may be administered to any patient only upon the informed consent of the patient or of a person authorized to act on his or her behalf after a full and comprehensive disclosure of potential benefits and the potential of harm. Aversive or noxious stimuli shall not be included as part of any patient's individual service plan unless all conditions for obtaining consent as otherwise set forth in this section are met. Before such stimuli may be included in any service plan, such procedures shall be evaluated by a suitable committee responsible for reviewing and approving the efficacy and humaneness of this element of the patient's service plan. Patients are presumed to have sufficient mental capacity to give consent unless there are facts and substantial reasons to the contrary. The following conditions shall apply:

(a) If a patient is under 18 years of age, consent shall be obtained from the parents or legal guardian. If no parent or legal guardian is available or if such a patient having mental capacity to understand the procedure objects or one of the parents objects to the proposed procedure, the director may not initiate the procedure without a court order authorizing it, except in the case where surgery is indicated by significant danger to life or limb of the patient if the procedure is delayed.

(b) If a patient is 18 years or older but in the opinion of the chief of the service does not have sufficient mental capacity to give consent, authorization for the procedure in question must be obtained from the spouse, a parent, an adult child, or a court of competent jurisdiction. Nothing in this section shall prevent the director from giving consent to surgical procedure under emergency conditions where there appears to be significant danger to life or limb of the patient if the procedure is delayed.

(c) If a patient is 18 years or older and has sufficient mental capacity to give consent, the procedures may be initiated only with the patient's consent. The patient shall have the right, upon his or her request, to have a person of her or his choice present when consent is sought. In cases where a patient withholds consent to a procedure necessary for protection of life or limb, the director shall notify the Mental Health Information Service and may apply for court authorization.

(d) If it is not clear that the patient has sufficient mental capacity to give consent, an independent opinion about the patient's mental capacity must be obtained from a qualified consultant who is not an employee of the facility. After considering the opinion of the consultant, the director will decide whether the patient does or does not have the capacity to give consent and the director may then proceed in accordance with the other provisions of this section. The director shall enter in the patient's clinical record the reasons for this decision.

(e) Each facility director shall develop standard procedures to evaluate the decisions made on the mental capacity of individual patients to give consent. A qualified consultant who is not an employee of the facility shall be a member of the review process.

(f) All patients who object shall have recourse to the procedures for objection and appeal stipulated in section 27.8 of this Part.

 


There is another law called Jonathan's Law that applies to people with developmental disabilities. Here is a summary of Jonathan's Law; it applies only to people with developmental disabilities, but we would like to see some of its provisions passed in NYS for victims in hospitals.


  1.  
    1. Under Jonathan’s Law parents and legal guardians (qualified persons) must be informed of all incidents involving their disabled loved one within 24 hours of the initial report. Incident is defined as “an accident or injury that affects the health or safety” of an individual receiving services.
    2. After the 24 hour notification is made, the Director of the facility must offer to hold a meeting with the qualified person(s) within 3 days, to discuss the incident.
    3. Within 10 days the Director of the facility shall provide the qualified person(s) with a written report on the actions taken to address the incident.
    4. Upon the resquest of the qualified person(s), a redacted (names and identifying information only) copy of the written incident report must be provided.
    5. Schools, facilities, and all investigative agencies (for example OMRDD, CQC) are required to release records and documents pertaining to all allegations and investigations into abuse, neglect, or mistreatment occurring at a school or facility, upon the written request of a qualififed person(s), within 21 days. Only names and identifying information of employees and other persons receiving services may be redacted.
    6. Jonathan’s Law created new Mental Hygiene Law sections 33.23 and 33.25.
    7. Jonathan’s Law applies to all facilities operated or certified by the Office of Mental Retardation and Developmental Disabilities (OMRDD), the Office of Mental Health (OMH), and the Office of Alcohol and Substance Abuse Services (OASAS).


 

 

[this information is current to the best of our knowledge as of 2/14]