MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Public Health and Welfare

By: Senator(s) Carlton

AN ACT TO AMEND SECTION 41-21-67, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE FOR THE EMERGENCY DETENTION OF ANY INDIVIDUAL BELIEVED TO BE MENTALLY ILL AND POSING AN IMMEDIATE SUBSTANTIAL LIKELIHOOD OF PHYSICAL HARM TO HIMSELF OR TO OTHERS; TO PROVIDE FOR THE APPREHENSION OF SUCH INDIVIDUAL BY A PEACE OFFICER WITHOUT A WARRANT; TO PROVIDE FOR THE PEACE OFFICER'S APPLICATION FOR DETENTION OF SUCH INDIVIDUAL; TO PROVIDE FOR THE PRELIMINARY EXAMINATION OF THE INDIVIDUAL BY A PHYSICIAN AT THE APPROPRIATE FACILITY TO WHICH THE INDIVIDUAL IS TRANSPORTED; TO PROVIDE PROCEDURES FOR THE EMERGENCY ADMISSION AND DETENTION OF THE INDIVIDUAL AT SUCH FACILITY; TO PRESCRIBE CONDITIONS FOR THE RELEASE OF THE INDIVIDUAL FROM EMERGENCY DETENTION; TO PROVIDE FOR THE TRANSPORTATION OF THE INDIVIDUAL AFTER RELEASE FROM EMERGENCY DETENTION; TO PRESCRIBE THE RIGHTS OF INDIVIDUALS APPREHENDED UNDER EMERGENCY DETENTION PROCEDURES; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 41-21-67, Mississippi Code of 1972, is amended as follows:

41-21-67. (1) Whenever such affidavit as is provided for in Section 41-21-65 shall be filed with the chancery clerk, the clerk, upon direction of the chancellor of said court, shall issue a writ directed to the sheriff of the proper county to take into his custody the person alleged to be in need of treatment and to bring such person before said clerk or chancellor who shall order pre-evaluation screening and treatment by the appropriate community mental health center established pursuant to Section 41-19-31 and for examination as set forth in Section 41-21-69. Provided, however, that when such affidavit fails to set forth factual allegations and witnesses sufficient to support the need for treatment, the chancellor shall refuse to direct issuance of the writ. Reapplication may be made to the chancellor. If a pauper's affidavit is filed by a guardian for commitment of the ward of the guardian, the court shall determine if the ward is a pauper and if such ward is determined to be a pauper, the county of the residence of the respondent shall bear the costs of commitment, unless funds for such purposes are made available by the state.

(2) Upon issuance of the writ the chancellor shall forthwith appoint and summon two (2) reputable, licensed physicians or one (1) such physician and a psychologist to conduct a physical and mental examination of such person at a place to be designated by said clerk or chancellor and to report their findings to said clerk or chancellor. In all counties wherein there is a county health officer, such county health officer, if available, may be one (1) of the physicians so appointed. Neither of the physicians or any psychologist selected shall be related to such person in any way, nor have any direct or indirect interest in the estate of such person nor shall any full-time staff of residential treatment facilities operated directly by the Department of Mental Health serve as examiner.

(3) The clerk shall ascertain whether the respondent is represented by an attorney, and if it is determined that respondent does not have an attorney the clerk shall immediately notify the chancellor of such fact, and if the chancellor determines that respondent for any reason does not have the services of an attorney, the chancellor shall forthwith appoint an attorney for the respondent at the time the examiners are appointed.

(4) If the chancellor determines that there is probable cause to believe that the respondent is mentally ill and that there is no reasonable alternative to detention, the chancellor may order that the respondent be retained as an emergency patient at any available regional mental health facility or any other available suitable location as the court may so designate pending an admission hearing and may, if necessary, order a peace officer or other person to transport the respondent to such mental health facility or suitable location. Any respondent so retained may be given such treatment by a licensed physician as is indicated by standard medical practice. Provided, however, the respondent shall not be held in a hospital operated directly by the Department of Mental Health; and shall not be held in jail unless the court finds that there is no reasonable alternative.

(5) (a) A peace officer, without a warrant, may take a person into custody if the officer:

(i) Has reason to believe and does believe that:

(A) The person is mentally ill; and

(B) Because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately retrained; and

(ii) Believes that there is not sufficient time to obtain a warrant before taking the person into custody.

(b) A substantial risk of serious harm to the person or others under subsection (a)(i)(B) may be demonstrated by:

(i) The person's behavior; or

(ii) Evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty.

(c) The peace officer may form the belief that the person meets the criteria for apprehension:

(i) From a representation of a credible person; or

(ii) On the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found.

(d) A peace officer who takes a person into custody under subsection (a) shall immediately transport the apprehended person to:

(i) The nearest appropriate inpatient mental health facility; or

(ii) A facility deemed suitable by the county's mental health authority, if an appropriate inpatient mental health facility is not available.

(e) A jail or similar detention facility may not be deemed suitable except in an extreme emergency.

(f) A person detained in a jail or a nonmedical facility shall be kept separate from any person who is charged with or convicted of a crime.

(g) A peace officer shall immediately file an application for detention after transporting a person to a facility under subsection (d).

(h) The application for detention must contain:

(i) A statement that the officer has reason to believe and does believe that the person evidences mental illness;

(ii) A statement that the officer has reason to believe and does believe that the person evidences a substantial risk of serious harm to himself or others;

(iii) A specific description of the risk of harm;

(iv) A statement that the officer has reason to believe and does believe that the risk of harm is imminent unless the person is immediately restrained;

(v) A statement that the officer's beliefs are derived from specific recent behavior, overt acts, attempts, or threats that were observed by or reliably reported to the officer;

(vi) A detailed description of the specific behavior, acts, attempts, or threats; and

(vii) The name and relationship to the apprehended person of any person who reported or observed the behavior, acts, attempts, or threats.

(i) A facility shall temporarily accept a person for whom an application for detention is filed.

(j) A person accepted for a preliminary examination may be detained in custody for not longer than twenty-four (24) hours after the time the person is presented to the facility unless a written order for further detention is obtained. If the twenty-four hour period ends on a Saturday, Sunday, legal holiday, or before 4:00 p.m. on the first succeeding business day, the person may be detained until 4:00 p.m. on the first succeeding business day. If extremely hazardous weather conditions exist or a disaster occurs, the presiding judge or magistrate may, by written order made each day, extend by an additional twenty-four (24) hours the period during which the person may be detained. The written order must declare that an emergency exists because of the weather or the occurrence of a disaster.

(k) A physician shall examine the person as soon as possible within twenty-four (24) hours after the time the person is apprehended.

(l) A facility must comply with this section only to the extent that the State Board of Mental Health determines that a facility has sufficient resources to perform the necessary services under this section.

(m) A person may not be detained in a private mental health facility without the consent of the facility administrator.

(n) A person may be admitted to a facility for emergency detention only if the physician who conducted the preliminary examination of the person makes a written statement that:

(i) Is acceptable to the facility;

(ii) States that after a preliminary examination it is the physician's opinion that:

(A) The person is mentally ill;

(B) The person evidences a substantial risk of serious harm to himself or others;

(C) The described risk of harm is imminent unless the person immediately restrained; and

(D) Emergency detention is the least restrictive means by which the necessary restraint may be accomplished; and

(iii) Includes:

(A) A description of the nature of the person's mental illness;

(B) A specific description of the risk of harm the person evidences that may be demonstrated either by the person's behavior or by evidence of severe emotional distress and deterioration in the person's mental condition to the extent that the person cannot remain at liberty; and

(C) The specific detailed information from which the physician formed the opinion.

(o) A person apprehended under (a) or detained under (g) shall be released on completion of the preliminary examination unless the person is admitted to a facility under (n).

(p) A person admitted to a facility under (n) shall be released if the facility administrator determines at any time during the emergency detention period that one (1) of the criteria prescribed by (n) no longer applies.

(q) Arrangements shall be made to transport a person who is entitled to release under (o) or (p) to:

(i) The location of the person's apprehension;

(ii) The person's residence in this state; or

(iii) Another suitable location.

(r) Paragraph (q) does not apply to a person who is arrested or who objects to the transportation.

(s) If the person was apprehended under (a), arrangements must be made to immediately transport the person. If the person was detained under (q), the person is entitled to reasonably prompt transportation.

(t) The county in which the person was apprehended shall pay the costs of transporting the person.

(u) A person apprehended or detained under this subsection has the right:

(i) To be advised of the location of detention, the reasons for the detention, and the fact that the detention could result in a longer period of involuntary commitment;

(ii) To a reasonable opportunity to communicate with and retain an attorney;

(iii) To be transported to a location as provided by (q) if the person is not admitted for emergency detention unless the person is arrested or objects;

(iv) To be released from a facility as provided by (o); and

(v) To be advised that communications with a mental health professional may be used in proceedings for further detention.

(v) A person apprehended or detained under this subsection shall be informed of the rights provided by this subsection:

(i) Orally in simple, nontechnical terms, within twenty-four (24) hours after the time the person is admitted to a facility, and in writing in the person's primary language if possible; or

(ii) Through the use of a means reasonably calculated to communicate with a hearing or visually impaired person, if applicable.

SECTION 2. This act shall take effect and be in force from and after July 1, 1998.