MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary, Division A
By: Senator(s) Hopson, Jackson (11th), Jordan, Jackson (32nd), Dearing, Branning
AN ACT TO REQUIRE THE DEPARTMENT OF MENTAL HEALTH TO DEVELOP STANDARDS FOR CERTIFICATION OF PROVIDERS AUTHORIZED TO PERFORM MENTAL EXAMINATIONS FOR CRIMINAL DEFENDANTS AND TO PROVIDE TRAINING TO THE PROVIDERS; TO AMEND SECTION 99-13-11, MISSISSIPPI CODE OF 1972, TO CLARIFY THE MENTAL EXAMINATION OF PERSONS CHARGED WITH A FELONY; TO AMEND SECTION 41-21-61, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS IN THE CHAPTER DEALING WITH COMMITMENT OF PERSONS IN NEED OF MENTAL HEALTH TREATMENT; TO AMEND SECTION 41-21-63, MISSISSIPPI CODE OF 1972, TO CLARIFY JURISDICTION OVER A PERSON WITH UNRESOLVED VIOLENT FELONY CHARGES WHOSE MENTAL COMPETENCY IS IN QUESTION AND TO REQUIRE CERTAIN NOTIFICATIONS UPON RELEASE OF THE PERSON FROM TREATMENT; TO AMEND SECTION 41-21-65, MISSISSIPPI CODE OF 1972, TO CLARIFY JURISDICTION OVER CERTAIN PERSONS CHARGED WITH A FELONY IN A CIVIL COMMITMENT PROCEEDING AND TO REQUIRE THAT THE UNIFORM CIVIL COMMITMENT AFFIDAVIT AND THE CIVIL COMMITMENT GUIDE BE PROVIDED ONLINE; TO AMEND SECTION 41-21-67, MISSISSIPPI CODE OF 1972, TO REVISE TEMPORARY COMMITMENT AND TO DESIGNATE FIRST POINT-OF-ENTRY FOR PRE-EVALUATION SCREENING AND TREATMENT; TO AMEND SECTION 41-21-69, MISSISSIPPI CODE OF 1972, TO CONFORM THE PRETRIAL EXAMINATION OF A RESPONDENT; TO AMEND SECTION 41-21-71, MISSISSIPPI CODE OF 1972, TO CONFORM THE PROVISIONS PERTAINING TO DISMISSAL; TO AMEND SECTION 41-21-77, MISSISSIPPI CODE OF 1972, TO CONFORM PROVISIONS PERTAINING TO COMMITMENT TO A FACILITY; TO AMEND SECTION 41-21-79, MISSISSIPPI CODE OF 1972, TO PROHIBIT CHARGING EXCESS COSTS TO THE AFFIANT; TO CREATE NEW SECTION 41-21-104, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE CONTINUING JURISDICTION OF THE COURT OVER THE RESPONDENT AFTER RELEASE FROM MENTAL HEALTH TREATMENT; TO AMEND SECTION 41-31-1, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS IN THE CHAPTER DEALING WITH COMMITMENTS FOR DRUG AND ALCOHOL TREATMENT; TO AMEND SECTION 41-31-3, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A UNIFORM ALCOHOL AND DRUG COMMITMENT AFFIDAVIT AND A UNIFORM DRUG AND ALCOHOL COMMITMENT GUIDE AND TO ALLOW AN AFFIANT TO PROCEED PRO SE; TO AMEND SECTION 41-31-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR AN OUTPATIENT TREATMENT OPTION WHEN APPROPRIATE AND TO AUTHORIZE REPRESENTATION FOR A RESPONDENT; TO AMEND SECTION 41-31-11, MISSISSIPPI CODE OF 1972, TO CLARIFY THE TRANSFER OF ALCOHOLIC AND ADDICTED PATIENTS UNDER CERTAIN CIRCUMSTANCES; TO CREATE NEW SECTION 41-31-18, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CONTINUING JURISDICTION OF THE COURT OVER PERSONS COMMITTED TO TREATMENT AFTER RELEASE; TO AMEND SECTION 41-32-3, MISSISSIPPI CODE OF 1972, TO CONFORM THE PROVISIONS CONCERNING THE CONTENTS OF THE AFFIDAVIT; TO AMEND SECTION 41-32-5, MISSISSIPPI CODE OF 1972, TO CLARIFY THE RESPONDENT'S RIGHT TO REPRESENTATION; TO AMEND SECTIONS 41-32-7, 41-32-11, 25-31-11, 41-30-27 AND 99-43-35, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Department of Mental Health shall develop standards for the training of psychiatrists and psychologists to perform mental examinations ordered under Section 99-13-11 and Rule 12 of the Rules of Criminal Procedure. The department shall provide training on the standards and maintain and publish a list of psychiatrists and psychologists who have completed training to perform such evaluations.
SECTION 2. Section 99-13-11, Mississippi Code of 1972, is amended as follows:
99-13-11. In any criminal
action * * * in which the mental * * * competency of a person * * * charged with a felony is
in question, the circuit or county court or judge in vacation on motion
duly made by the defendant * * * or the district attorney, or on
the motion of the court or judge, may order * * * the person to submit to a mental
examination by a competent psychiatrist or psychologist selected by the court
to determine his ability to make a defense; * * * any cost or expense in
connection with such mental examination shall be paid by the county in which * * * the criminal action is pending.
SECTION 3. Section 41-21-61, Mississippi Code of 1972, is amended as follows:
41-21-61. As used in Sections 41-21-61 through 41-21-107, unless the context otherwise requires, the following terms defined have the meanings ascribed to them:
(a) "Appointed examiner" means a person appointed by the court under Section 41-21-67(2) to conduct a mental and physical examination of a person alleged to be in need of treatment.
( * * *b) "Chancellor" means a
chancellor or a special master in chancery.
( * * *c) "Clerk" means the clerk
of the chancery court.
( * * *d) "Director" means the
chief administrative officer of a treatment facility or other employee
designated by him as his deputy.
( * * *e) "Interested person" means
an adult, including, but not limited to, a public official, and the legal
guardian, spouse, parent, legal counsel, adult * * * child, next of kin, or other person
designated by a proposed patient.
( * * *f) "Person with mental illness" means any person who
has a substantial psychiatric disorder of thought, mood, perception,
orientation, or memory which grossly impairs judgment, behavior, capacity to
recognize reality, or to reason or understand, which (i) is manifested by
instances of grossly disturbed behavior or faulty perceptions; and (ii) poses a
substantial likelihood of physical harm to himself or others as demonstrated by
(A) a recent attempt or threat to physically harm himself or others, or (B) a
failure to provide necessary food, clothing, shelter or medical care for
himself, as a result of the impairment. "Person with mental illness" includes a person who, based on
treatment history and other applicable psychiatric indicia, is in need of
treatment in order to prevent further disability or deterioration which would
predictably result in dangerousness to himself or others when his current
mental illness limits or negates his ability to make an informed decision to
seek or comply with recommended treatment. "Person with mental illness" does not include a
person having only one or more of the following conditions: (1) epilepsy, (2) an intellectual disability, (3) brief periods
of intoxication caused by alcohol or drugs, (4) dependence upon or addiction to
any alcohol or drugs, or (5) senile dementia.
( * * *g) "Person with an intellectual disability" means any
person (i) who has been diagnosed as having substantial limitations in present
functioning, manifested before age eighteen (18), characterized by
significantly subaverage intellectual functioning, existing concurrently with
related limitations in two (2) or more of the following applicable adaptive
skill areas: communication, self-care, home living, social skills, community
use, self-direction, health and safety, functional academics, leisure and work,
and (ii) whose recent conduct is a result of having
an intellectual disability and poses a substantial likelihood of
physical harm to himself or others in that there has been (A) a recent attempt
or threat to physically harm himself or others, or (B) a failure and inability
to provide necessary food, clothing, shelter, safety or medical care for
himself.
( * * *h) "Physician" means any
person licensed by the State of Mississippi to practice medicine in any of its
branches.
( * * *i) "Psychologist" * * *
means a licensed psychologist who has been certified by the State Board of
Psychological Examiners as qualified to perform examinations for the purpose of
civil commitment.
( * * *j) "Treatment facility"
means a hospital, community mental health center, or other institution
qualified to provide care and treatment for persons
with mental illness, persons with an intellectual disability or
chemically dependent persons.
( * * *k) "Substantial likelihood of
bodily harm" means that:
(i) The person has threatened or attempted suicide or to inflict serious bodily harm to himself; or
(ii) The person has threatened or attempted homicide or other violent behavior; or
(iii) The person has placed others in reasonable fear of violent behavior and serious physical harm to them; or
(iv) The person is unable to avoid severe impairment or injury from specific risks; and
(v) There is substantial likelihood that serious harm will occur unless the person is placed under emergency treatment.
SECTION 4. Section 41-21-63, Mississippi Code of 1972, is amended as follows:
41-21-63. (1) No person, other than persons charged with crime, shall be committed to a public treatment facility except under the provisions of Sections 41-21-61 through 41-21-107 or 43-21-611 or 43-21-315. However, nothing herein shall be construed to repeal, alter or otherwise affect the provisions of Section 35-5-31 or to affect or prevent the commitment of persons to the Veterans Administration or other agency of the United States under the provisions of and in the manner specified in those sections.
(2) (a) The
chancery court, or the chancellor in vacation, shall have jurisdiction under
Sections 41-21-61 through 41-21-107 except over persons with unresolved felony
charges * * *
unless paragraph (b) of this subsection applies.
(b) If a circuit court with jurisdiction over unresolved felony charges enters an order concluding that the person is incompetent to stand trial and is not restorable to competency in the foreseeable future, the matter should be referred to the chancery court to be subject to civil commitment procedures under Sections 41-21-61 through 41-21-107. The order of the circuit court shall be in lieu of the affidavit for commitment provided for in Section 41-21-65. The chancery court shall have jurisdiction and shall proceed with civil commitment procedures under Sections 41-21-61 through 41-21-107.
(3) The circuit court shall have jurisdiction under Sections 99-13-7, 99-13-9 and 99-13-11.
(4) Before the release of a person referred for civil commitment under this section and committed under Sections 41-21-61 through 41-21-107, the Department of Mental Health must notify the district attorney of the county where the offense was committed. The district attorney must notify the crime victim or a family member who has requested notification under Section 99-43-35 and the sheriffs of both the county where the offense was committed and the county of the committed person's destination.
SECTION 5. Section 41-21-65, Mississippi Code of 1972, is amended as follows:
41-21-65. (1) It is the intention of the Legislature that the filing of an affidavit under this section be a simple, inexpensive, uniform, and streamlined process for the purpose of facilitating and expediting the care of individuals in need of treatment.
(2) The Uniform Civil Commitment Affidavit developed by the Department of Mental Health under this section must be provided by the clerk of the chancery court to any party or affiant seeking a civil commitment under this section, and must be utilized in all counties to commence civil commitment proceedings under this section. The affidavit must be made available to the public on the website of the Mississippi Department of Mental Health.
(3) The Department of Mental Health, in consultation with the Mississippi Chancery Clerks Association, the Mississippi Conference of Chancery Court Judges and the Mississippi Association of Community Mental Health Centers, must develop a written guide setting out the steps in the commitment process no later than January 1, 2020. The guide shall be designated as the "Uniform Civil Commitment Guide" and must include, but not be limited to, the following:
(a) Steps in the civil commitment process from affidavit to commitment, written in easily understandable layman's terms;
(b) A schedule of fees and assessments that will be charged to commence a commitment proceeding under this section;
(c) Eligibility requirements and instructions for filing a pauper's affidavit; and
(d) A statement on the front cover of the guide advising that persons wishing to pursue a civil commitment under this section are not required to retain an attorney for any portion of the commitment process.
(4) Immediately upon availability, but no later than January 1, 2020, the Uniform Civil Commitment Guide must be provided by the clerk of the chancery court to any party or affiant seeking a civil commitment under this section and also must be made available to the public on the website of the Mississippi Department of Mental Health.
( * * *5) If any person is alleged to be in
need of treatment, any relative of the person, or any interested person, may
make affidavit of that fact and shall file the Uniform Civil Commitment
Affidavit with the clerk of the chancery court of the county in which the
person alleged to be in need of treatment resides * * *, but the
chancellor or duly appointed special master may, in his or her discretion, hear
the matter in the county in which the person may be found. * * * The affidavit
shall set forth the name and address of the proposed patient's nearest
relatives and whether the proposed patient resides or has visitation rights
with any minor children, if known, and the reasons for the affidavit. The
affidavit must contain factual descriptions of the proposed patient's recent
behavior, including a description of the behavior, where it occurred, and over
what period of time it occurred, if known. Each factual allegation may be
supported by observations of witnesses named in the affidavit. * * *
The Department of Mental Health, in consultation with the Mississippi Chancery
Clerks' Association, shall develop a simple, one-page affidavit form for the
use of affiants as provided in this * * * section. The affidavit also must state whether the
affiant has consulted with a Community Mental Health Center or a physician to
determine whether the alleged acts by the proposed respondent warrant civil
commitment in lieu of other less-restrictive treatment options. No
chancery clerk shall require an affiant to retain an attorney for the filing of
an affidavit under this section.
( * * *6) The chancery clerk may charge * * * a total filing fee for all
services equal to the amount set out in Section 25-7-9(o), and the appropriate
state and county assessments as required by law which include, but are not
limited to, assessments for the Judicial Operation Fund (Section 25-7-9(3)(b));
the Electronic Court System Fund (Section 25-7-9(3)(a)); the Civil Legal
Assistance Fund (Section 25-7-9(1)(k)); the Court Education and Training Fund
(Section 37-26-3); State Court Constituent's Fund (Section 37-26-9(4)); and
reasonable court reporter's fee. Costs incidental to the court
proceedings as set forth in Section 41-21-79 may not be included in the assessments
permitted by this subsection. The total of the fees and assessments permitted
by this subsection may not exceed One Hundred Fifty Dollars ($150.00).
( * * *7) The prohibition against charging
the affiant other fees, expenses, or costs shall not preclude the imposition of
monetary criminal penalties under Section 41-21-107 or any other criminal
statute, or the imposition by the chancellor of monetary penalties for contempt
if the affiant is found to have filed an intentionally false affidavit or filed
the affidavit in bad faith for a malicious purpose.
(8) Nothing in this section shall be construed so as to conflict with Section 41-21-63.
SECTION 6. Section 41-21-67, Mississippi Code of 1972, is amended as follows:
41-21-67. (1) Whenever the
affidavit provided for in Section 41-21-65 is filed with the chancery
clerk, the clerk, upon direction of the chancellor of the court, shall issue a
writ directed to the sheriff of the proper county to take into custody the
person alleged to be in need of treatment and to * * * take the person * * *
for pre-evaluation screening and treatment by the appropriate community
mental health center established under Section 41-19-31. The community mental
health center will be designated as the first point of entry for pre-evaluation
screening and treatment. If the community mental health center is
unavailable, any reputable licensed physician, psychologist, nurse practitioner
or physician assistant, as allowed in the discretion of the court, may conduct
the pre-evaluation screening and examination as set forth in Section 41-21-69.
The order may provide where the person shall be held before * * * being
taken for pre-evaluation screening and treatment. However, when the
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 an affiant who is a guardian * * * or
conservator of a person in need of treatment, the court shall determine if either
the * * * affiant
or the person in need of treatment is a pauper and if, the * * * affiant or the person in need of
treatment is determined to be a pauper, the county of the residence of the
respondent shall bear the costs of commitment, unless funds for those purposes
are made available by the state.
In any county in which a Crisis Intervention Team has been established under the provisions of Sections 41-21-131 through 41-21-143, the clerk, upon the direction of the chancellor, may require that the person be referred to the Crisis Intervention Team for appropriate psychiatric or other medical services before the issuance of the writ.
(2) Upon issuance of the writ, the chancellor shall immediately appoint and summon two (2) reputable, licensed physicians or one (1) reputable, licensed physician and either one (1) psychologist, nurse practitioner or physician assistant to conduct a physical and mental examination of the person at a place to be designated by the clerk or chancellor and to report their findings to the clerk or chancellor. However, any nurse practitioner or physician assistant conducting the examination shall be independent from, and not under the supervision of, the other physician conducting the examination. A nurse practitioner or psychiatric nurse practitioner conducting an examination under this chapter must be functioning within a collaborative or consultative relationship with a physician as required under Section 73-15-20(3). In all counties in which there is a county health officer, the county health officer, if available, may be one (1) of the physicians so appointed. If a licensed physician is not available to conduct the physical and mental examination within forty-eight (48) hours of the issuance of the writ, the court, in its discretion and upon good cause shown, may permit the examination to be conducted by the following: (a) two (2) nurse practitioners, one (1) of whom must be a psychiatric nurse practitioner; or (b) one (1) psychiatric nurse practitioner and one (1) psychologist or physician assistant. Neither of the physicians nor the psychologist, nurse practitioner or physician assistant selected shall be related to that person in any way, nor have any direct or indirect interest in the estate of that person nor shall any full-time staff of residential treatment facilities operated directly by the State 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 the respondent does not have an attorney, the clerk shall immediately notify the chancellor of that fact. If the chancellor determines that the respondent for any reason does not have the services of an attorney, the chancellor shall immediately 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 licensed medical facility for evaluation by a physician, nurse practitioner or physician assistant and that a peace officer transport the respondent to the specified facility. If the community mental health center serving the county has partnered with Crisis Intervention Teams under the provisions of Sections 41-21-131 through 41-21-143, the order may specify that the licensed medical facility be a designated single point of entry within the county or within an adjacent county served by the community mental health center. If the person evaluating the respondent finds that the respondent is mentally ill and in need of treatment, the chancellor may order that the respondent be retained at the licensed medical facility or any other available suitable location as the court may so designate pending an admission hearing. If necessary, the chancellor may order a peace officer or other person to transport the respondent to that facility or suitable location. Any respondent so retained may be given such treatment as is indicated by standard medical practice. However, the respondent shall not be held in a hospital operated directly by the State Department of Mental Health, and shall not be held in jail unless the court finds that there is no reasonable alternative.
(5) (a) Whenever a licensed psychologist, nurse practitioner or physician assistant who is certified to complete examinations for the purpose of commitment or a licensed physician has reason to believe that a person poses an immediate substantial likelihood of physical harm to himself or others or is gravely disabled and unable to care for himself by virtue of mental illness, as defined in Section 41-21-61(e), then the physician, psychologist, nurse practitioner or physician assistant may hold the person or may admit the person to and treat the person in a licensed medical facility, without a civil order or warrant for a period not to exceed seventy-two (72) hours. However, if the seventy-two-hour period begins or ends when the chancery clerk's office is closed, or within three (3) hours of closing, and the chancery clerk's office will be continuously closed for a time that exceeds seventy-two (72) hours, then the seventy-two-hour period is extended until the end of the next business day that the chancery clerk's office is open. The person may be held and treated as an emergency patient at any licensed medical facility, available regional mental health facility, or crisis intervention center. The physician or psychologist, nurse practitioner or physician assistant who holds the person shall certify in writing the reasons for the need for holding.
If a person is being held and treated in a licensed medical facility, and that person decides to continue treatment by voluntarily signing consent for admission and treatment, the seventy-two-hour hold may be discontinued without filing an affidavit for commitment. Any respondent so held may be given such treatment as indicated by standard medical practice. Persons acting in good faith in connection with the detention and reporting of a person believed to be mentally ill shall incur no liability, civil or criminal, for those acts.
(b) Whenever an
individual is held for purposes of receiving treatment as prescribed under paragraph
(a) of this subsection, and it is communicated to the mental health
professional holding the individual that the individual resides or has
visitation rights with a minor child, and if the individual is considered to be
a danger to the minor child, the mental health professional shall notify the
Department of * * *
Child Protection Services prior to discharge if the threat of harm
continues to exist, as is required under Section 43-21-353.
This paragraph (b) shall be known and may be cited as the "Andrew Lloyd Law."
SECTION 7. Section 41-21-69, Mississippi Code of 1972, is amended as follows:
41-21-69. (1) (a) The * * * appointed examiners
shall immediately make a full inquiry into the condition of the person alleged
to be in need of treatment and shall make a mental examination and physical
evaluation of the person, and * * * each examiner must make a report
and certificate of * * * the findings of all mental and acute physical problems
to the clerk of the court. * * * Each report and certificate * * * must set forth the facts as found
by the * * *
appointed examiner and * * * must state whether * * * the examiner is of the opinion that the
proposed patient is suffering a disability defined in Sections 41-21-61 through
41-21-107 and should be committed to a treatment facility. The statement shall
include the reasons for that opinion. The examination may be based upon a
history provided by the patient and the report and certificate of findings
shall include an identification of all mental and physical problems identified
by the examination.
(b) If the * * * appointed examiner
finds: (i) the respondent has mental illness; (ii) the respondent is capable
of surviving safely in the community with available supervision from family,
friends or others; (iii) based on the respondent's treatment history and other
applicable medical or psychiatric indicia, the respondent is in need of
treatment in order to prevent further disability or deterioration that would
result in significant deterioration in the ability to carry out activities of
daily living; and (iv) his or her current mental status or the nature of his or
her illness limits or negates his or her ability to make an informed decision
to seek voluntarily or comply with recommended treatment; the * * * appointed examiners
shall so show on the examination report and certification and shall recommend
outpatient commitment. The * * * appointed examiners
shall also show the name, address and telephone number * * * of the proposed outpatient treatment
physician or facility.
(2) The examinations shall
be conducted and concluded within forty-eight (48) hours after the order for
examination and appointment of attorney, and the certificates of the * * * appointed examiners shall
be filed with the clerk of the court within that time, unless the running of
that period extends into nonbusiness hours, in which event the certificates * * * must be filed at the beginning of
the next business day. However, if the * * * appointed examiners
are of the opinion that additional time to complete the examination is
necessary, and this fact is communicated to the chancery clerk or chancellor,
the clerk or chancellor shall have authority to extend the time for completion
of the examination and the filing of the certificate, the extension to be not
more than eight (8) hours.
(3) At the beginning of the examination, the respondent shall be told in plain language of the purpose of the examination, the possible consequences of the examination, of his or her right to refuse to answer any questions, and his or her right to have his or her attorney present.
SECTION 8. Section 41-21-71, Mississippi Code of 1972, is amended as follows:
41-21-71. If, as a result
of the examination, the appointed examiners certify that the person is
not in need of treatment, the chancellor or clerk shall dismiss the affidavit
without the need for a further hearing. If the chancellor or chancery clerk
finds, based upon the * * * appointed examiners' certificates
and any other relevant evidence, that the respondent is in need of treatment
and * * * the certificates are filed with the chancery clerk within
forty-eight (48) hours after the order for examination, or extension of that
time as provided in Section 41-21-69, the clerk shall immediately set
the matter for a hearing. The hearing shall be set within seven (7) days of
the filing of the certificates unless an extension is requested by the
respondent's attorney. In no event shall the hearing be more than ten (10)
days after the filing of the certificates.
SECTION 9. Section 41-21-77, Mississippi Code of 1972, is amended as follows:
41-21-77. If admission is
ordered at a treatment facility, the sheriff, his or her deputy or any other
person appointed or authorized by the court shall immediately deliver the
respondent to the director of the appropriate facility. Neither the Board of
Mental Health or its members, nor the Department of Mental Health or its
related facilities, nor any employee of the Department of Mental Health or its
related facilities, shall be appointed, authorized or ordered to deliver the
respondent for treatment, and no person shall be so delivered or admitted until
the director of the admitting institution determines that facilities and
services are available. Persons who have been ordered committed and are
awaiting admission may be given any such treatment in the facility by a
licensed physician as is indicated by standard medical practice. Any county
facility used for providing housing, maintenance and medical treatment for
involuntarily committed persons pending their transportation and admission to a
state treatment facility shall be certified by the State Department of Mental
Health under the provisions of Section 41-4-7(kk). No person shall be
delivered or admitted to any non-Department of Mental Health treatment facility
unless the treatment facility is licensed and/or certified to provide the
appropriate level of psychiatric care for persons with mental illness. It is the
intent of this Legislature that county-owned hospitals work with regional
community mental health/intellectual disability centers in providing care to
local patients. The clerk shall provide the director of the admitting
institution with a certified copy of the court order, a certified copy of the * * * appointed examiners'
certificates, a certified copy of the affidavit, and any other
information available concerning the physical and mental condition of the
respondent. Upon notification from the United States Veterans Administration
or other agency of the United States government, that facilities are available
and the respondent is eligible for care and treatment in those facilities, the
court may enter an order for delivery of the respondent to or retention by the
Veterans Administration or other agency of the United States government, and,
in those cases the chief officer to whom the respondent is so delivered or by
whom he is retained shall, with respect to the respondent, be vested with the
same powers as the director of the Mississippi State Hospital at Whitfield, or
the East Mississippi State Hospital at Meridian, with respect to retention and
discharge of the respondent.
SECTION 10. Section 41-21-79, Mississippi Code of 1972, is amended as follows:
41-21-79. The costs incidental to the court proceedings including, but not limited to, court costs, prehearing hospitalization costs, cost of transportation, reasonable physician's, psychologist's, nurse practitioner's or physician assistant's fees set by the court, and reasonable attorney's fees set by the court, shall be paid out of the funds of the county of residence of the respondent in those instances where the patient is indigent unless funds for those purposes are made available by the state. However, if the respondent is not indigent, those costs shall be taxed against the respondent or his or her estate. The total amount that may be charged for all of the costs incidental to the court proceedings shall not exceed Four Hundred Dollars ($400.00). Costs incidental to the court proceedings permitted under this section may not be charged to the affiant nor included in the fees and assessments permitted under Section 41-21-65(6).
SECTION 11. The following shall be codified as Section 41-21-104, Mississippi Code of 1972:
41-21-104. The court shall have continuing jurisdiction over a person committed to an inpatient or outpatient treatment program under this chapter for one (1) year after completion of the treatment program. During that time, the court, upon affidavit in the same cause of action, may conduct a hearing consistent with this chapter or Title 41, Chapter 31, Mississippi Code of 1972, to determine whether the person needs to be recommitted for further mental health treatment or to determine whether the person is in need of alcohol and drug treatment. Upon a finding by the court that the person is in need of further treatment, the court may commit the person to an appropriate treatment facility. The person subject to commitment must be afforded the due process to which he or she is entitled under Chapters 21 and 31 of Title 41, Mississippi Code of 1972. This section may not be construed so as to conflict with the provisions of Section 41-21-87.
SECTION 12. Section 41-31-1, Mississippi Code of 1972, is amended as follows:
41-31-1. As used in this
chapter, the following words and phrases shall have the meanings * * * ascribed to them, unless the
context requires a different meaning * * *:
(a) * * * "Alcoholic" * * * means any person who chronically
and habitually uses alcoholic beverages to the extent that he has lost the
power of self-control with respect to the use of such beverages, or any person
who, while chronically under the influence of alcoholic beverages, endangers
public morals, health, safety or welfare.
(b) "Alcoholic
beverage" * * *
means * * * alcoholic spirits, liquors, wines, beer, and every liquid or
fluid, patented or not, containing alcoholic spirits, wine or beer, which is
capable of being consumed by human beings and produces or results in
intoxication in any form or degree.
(c) "Alcoholism" * * * means any condition of abnormal
behavior or illness resulting directly or indirectly from the chronic and
habitual use of alcoholic beverages.
(d) * * * "Drug addict" * * * means any person who chronically
and habitually uses any form of habit-forming drugs, such as opioids,
opiates and the derivatives thereof, barbiturates, and every tablet, powder,
substance, liquid or fluid, patented or not, containing habit-forming drugs if
same is capable of being used by human beings and produces drug addiction in
any form or degree.
(e) "Drug
addiction" * * *
means * * * any condition of abnormal behavior or illness resulting
directly or indirectly from the chronic and habitual use of habit-forming
drugs.
(f)
"Hospital" or "institution" * * * means either the Mississippi
State Hospital, at Whitfield, Mississippi, or the East Mississippi State
Hospital, at Meridian, Mississippi, and shall include the grounds thereof and
the facilities used for the treatment of alcoholics and the drug addicts.
(g) "Medical
director" * * *
means the physician in charge of * * *: (i) Mississippi State Hospital,
or (ii) East Mississippi State Hospital, as the case may be.
SECTION 13. Section 41-31-3, Mississippi Code of 1972, is amended as follows:
41-31-3. (1) The Department of Mental Health must develop a Uniform Alcohol and Drug Commitment Affidavit to be utilized in all counties to initiate commitment proceedings under Title 41, Chapters 30, 31 and 32, Mississippi Code of 1972. The Uniform Alcohol and Drug Commitment Affidavit must be provided by the clerk of the chancery court to any party or affiant seeking a civil commitment under this chapter and also must be made available to the public on the website of the Mississippi Department of Mental Health.
(2) The Department of Mental Health, in consultation with the Mississippi Chancery Clerks Association, the Mississippi Conference of Chancery Court Judges and the Mississippi Association of Community Mental Health Centers, must develop a written guide no later than January 1, 2020, setting out the steps in the commitment process. The guide shall be designated as the "Uniform Alcohol and Drug Commitment Guide" and shall include, but not be limited to, the following:
(a) Steps in the alcohol and drug commitment process from affidavit to commitment, written in easily understandable layman's terms;
(b) A schedule of fees and assessments that will be charged to commence a commitment proceeding under this chapter;
(c) Eligibility requirements and instructions for filing a pauper's affidavit; and
(d) A statement on the front cover of the guide advising that persons who pursue an alcohol and drug commitment under this chapter are not required to retain an attorney for any portion of the commitment process.
(3) As soon as available but no later than January 1, 2020, the Uniform Alcohol and Drug Commitment Guide must be provided by the clerk of the chancery court to any party or affiant seeking a civil commitment under this chapter, and also must be made available to the public on the website of the Mississippi Department of Mental Health.
(4) Proceedings for
detention, care and treatment of any person alleged to be an alcoholic or drug
addict may be initiated or instituted by such person's husband, wife, child,
mother, father, next of kin, or by any friend or relative thereof, or by the
county health officer. Such proceedings shall be instituted by the filing of * * * the Uniform
Alcohol and Drug Commitment Affidavit in the chancery court of the county
of such person's residence or of the county in which he may be found. It shall
be necessary that * * * the affidavit allege that such person is an
alcoholic or drug addict, as the case may be, is a resident citizen of this
state, and because of his alcoholism or drug addiction is incapable of or unfit
to look after and conduct his affairs, or is dangerous to himself or others, or
has lost the power of self-control because of periodic, constant or frequent
use of alcoholic beverages or habit-forming drugs, and that he is in need of
care and treatment, and that his detention, care and treatment at an
institution will improve his health. A chancery clerk may not require an
affiant to retain an attorney for the filing of an affidavit under this
section. All proceedings authorized by this chapter may be had and
conducted either in termtime or in vacation of said court.
SECTION 14. Section 41-31-5, Mississippi Code of 1972, is amended as follows:
41-31-5. (1)
Whenever * * * an affidavit is filed, the
chancellor of said court shall, by order, fix a time upon a day certain for the
hearing thereof, either in termtime or in vacation, which hearing shall be
fixed not less than five (5) days nor more than twenty (20) days from the
filing of * * * the affidavit. The person alleged to be an
alcoholic or drug addict shall be served with a citation to appear at said
hearing not less than three (3) days prior to the day fixed for said hearing,
and there shall be served with such citation a true and correct copy of * * * the affidavit.
(2) The clerk must ascertain whether the respondent is represented by an attorney, and if it is determined that the respondent does not have an attorney, the clerk immediately must notify the chancellor of that fact. If the chancellor determines that the respondent for any reason does not have the services of an attorney, the chancellor shall appoint an attorney for the respondent before a hearing on the affidavit.
(3) At the time
fixed, the chancellor shall hear evidence on * * * the affidavit, with or
without the presence of the alleged alcoholic or drug addict, and all persons
interested shall have the right to appear and present evidence touching upon
the truth and correctness of the allegations of * * * the affidavit. The said
chancellor, in his discretion, may require that the alleged alcoholic or drug
addict be examined by the county health officer or by such other competent
physician or physicians as the chancellor may select, and may consider the
results of such examination in reaching a decision in said matter.
(4) If the alleged
alcoholic or drug addict shall admit the truth and correctness of the
allegations of * * * the affidavit, or if the chancellor should find from
the evidence that such person is an alcoholic or drug addict, and is in need of
detention, care and treatment in an institution, and that the other material
allegations of said petition are true, then he shall enter an order so finding,
and shall order that such person be remanded and committed to and confined in
the proper state institution under this chapter or a private
treatment facility under the provisions of Title 41, Chapter 32, Mississippi
Code of 1972, or, in the case of an alcoholic to an approved public or
private treatment facility pursuant to the provisions of Title 41,
Chapter 30 * * *, Mississippi Code of 1972, for care and treatment for a period of
not less than thirty (30) days nor more than ninety (90) days as the necessity
of the case may, in his discretion, require. However, when such person shall
be so committed, the medical director of the said institution shall be vested
with full discretion as to the treatment and discharge of such person, and may
discharge and release such person at any time when the condition of such person
shall so justify.
(5) (a) If the chancellor determines under this section that the alleged alcoholic or drug addict is in need of care and treatment but also affirmatively finds that the alleged alcoholic or drug addict would benefit from the less restrictive option of an outpatient treatment program, the chancellor, in his discretion and upon agreement of both the affiant and the person in need of treatment, may order the alleged alcoholic or drug addict into an outpatient treatment program.
(b) If the order directs outpatient treatment, the outpatient treatment provider may prescribe or administer to the respondent treatment consistent with accepted alcohol and drug abuse treatment standards. If the respondent fails or clearly refuses to comply with outpatient treatment, the director of the treatment program, his designee or an interested person must make all reasonable efforts to solicit the respondent's compliance. These efforts must be documented and, if the respondent fails or clearly refuses to comply with outpatient treatment after the efforts are made, the efforts must be documented with the court by affidavit. Upon the filing of the affidavit, the sheriff of the proper county may take the respondent into custody. The chancellor thereafter may order the respondent to inpatient treatment as soon as a treatment facility is available.
(c) The respondent may request a hearing within ten (10) days of commitment to inpatient treatment by filing a written request with the chancery clerk of the committing court, or the respondent may request such a hearing in writing to any member of the professional staff of the treatment facility, which must be forwarded to the director and promptly filed with the chancery clerk of the committing court. The respondent must be advised of the right to request such a hearing and of the right to consult a lawyer.
SECTION 15. Section 41-31-11, Mississippi Code of 1972, is amended as follows:
41-31-11. The medical director of the Mississippi State Hospital or the East Mississippi State Hospital may, subject to the regulations of the board of trustees of mental institutions, transfer alcoholics or drug addicts from one institution used for the commitment of alcoholics and drug addicts to another institution, or from one department in any institution to another as is deemed necessary for their care and treatment. The medical director must provide the committing court with written notification of the transfer, including the name of the facility or program to which the alcoholic or addict is transferred.
SECTION 16. The following shall be codified as Section 41-31-18, Mississippi Code of 1972:
41-31-18. The court shall have continuing jurisdiction over a person committed to an inpatient or outpatient treatment program under this chapter for one (1) year after completion of the treatment program. During that time and upon affidavit in the same cause of action, the court may conduct a hearing consistent with this chapter or Title 41, Chapter 21, Mississippi Code of 1972, to determine whether the person needs to be recommitted for further alcohol and drug treatment or to determine whether the person suffers from a mental or nervous condition or affliction requiring commitment for mental health treatment. Upon a finding by the court that the person is in need of further treatment, the court may commit the person to an appropriate treatment facility. The person subject to commitment must be afforded the due process entitled to him or her under Title 41, Chapters 21 and 31, Mississippi Code of 1972. This section may not be construed so as to conflict with the provisions of Section 41-21-87.
SECTION 17. Section 41-32-3, Mississippi Code of 1972, is amended as follows:
41-32-3. Any interested
person may file a * * * Uniform Alcohol and Drug Commitment Affidavit with
the chancery court for a judgment of committal in termtime or in vacation. The * * * affidavit shall state facts
to establish: (a) the defendant is an alcoholic or drug addict, i.e., he is
powerless over alcohol or drugs, or both, and his life has thereby become
unmanageable; (b) defendant's mental and physical health, his continued family
life or his position in the community are dependent on his treatment at a
chemical dependency unit, alcohol and drug unit, outpatient house or another
private treatment facility, or combination of facilities, providing treatment
for chemically dependent persons; (c) the defendant has refused to commit
himself to such private treatment facility, though having been requested so to
do by persons who genuinely care for his well-being; (d) the * * * affiant has selected a
particular private treatment facility which, if located in this state, has been
approved by the Department of Mental Health, Division of Alcohol and Drug
Abuse; (e) the * * * affiant has made adequate financial arrangements
for defendant's treatment at such facility; and (f) such facility has approved
the admission of the defendant, subject to commitment by the chancery court.
SECTION 18. Section 41-32-5, Mississippi Code of 1972, is amended as follows:
41-32-5. (1) The
chancellor shall schedule with the affiant a time on a day certain for the
hearing thereof, not less than five (5) days nor more than twenty (20) days
from the filing of the * * * affidavit. The case shall be triable upon three
(3) days' service of process and service of notice of the time for the
hearing. At the time fixed, the chancellor shall hear the evidence in the
presence of the defendant if he will appear, and without the presence of the
defendant if he will not appear, and all persons interested shall have the
right to appear and present evidence touching upon the truth and correctness of
the allegations of the * * * affidavit.
(2) The clerk must ascertain whether the respondent is represented by an attorney, and if it is determined that the respondent does not have an attorney, the clerk immediately must notify the chancellor of that fact. If the chancellor determines that the respondent for any reason does not have the services of an attorney, the chancellor must appoint an attorney for the respondent before a hearing on the affidavit.
(3) If the defendant
admits the truth and correctness of the allegations of the * * * affidavit, or if the
chancellor shall find from the evidence that the defendant is an alcoholic or
drug addict, or both, and is in need of detention, care and treatment in a
private treatment facility, and that the other material allegations of the * * * affidavit are true, then the
chancellor shall enter a judgment so finding, and shall order that such person
be committed to and confined in a chemical dependency unit, alcohol and drug
unit, outpatient house or any other private treatment facility, within or
outside the state, for the treatment of chemically dependent persons, as the
chancellor, in his discretion, deems to be in the best interest of the
defendant. Any such order for the commitment of the defendant shall require
that the defendant be committed for such period of time as the chancellor shall
determine, in his discretion, as is necessary to provide for the care and
treatment of the defendant or for such other period of time as may be
established by authorized personnel at the designated facility or facilities; * * * however, in no event shall such
period of confinement extend beyond a period of eight (8) months. The
chancellor may require treatment at a combination of facilities or may
designate commitment at an inpatient facility for not more than two (2) months
and an outpatient facility for not more than six (6) months, subject to
institutional earlier release.
SECTION 19. Section 41-32-7, Mississippi Code of 1972, is amended as follows:
41-32-7. Upon allegation in
the * * *
affidavit and upon clear and convincing proof that the defendant is
under the influence of alcohol or drugs, or both, to the extent that if the
defendant is served with process he will, in all likelihood, flee the
jurisdiction of the court or physically harm himself or others, then the
chancellor may, in his discretion, set the matter for hearing not more than
five (5) days, excluding Saturdays, Sundays and legal holidays, from the filing
of the * * *
affidavit, and order the defendant committed and confined, without
notice, until the hearing, to a chemical dependency unit, alcohol and drug
unit, outpatient house or any other private facility for the treatment of
chemically dependent persons.
SECTION 20. Section 41-32-11, Mississippi Code of 1972, is amended as follows:
41-32-11. The chancellor may
order assistance by the sheriff of the county, or any other county in confining
and transporting the defendant to the facility, at the expense of * * * the committing county.
SECTION 21. Section 25-31-11, Mississippi Code of 1972, is amended as follows:
25-31-11. (1) It shall be the duty of the district attorney to represent the state in all matters coming before the grand juries of the counties within his district and to appear in the circuit courts and prosecute for the state in his district all criminal prosecutions and all civil cases in which the state or any county within his district may be interested; but if two (2) or more counties are adversely interested, the district attorney shall not represent either. Any district attorney may also institute and prosecute to final judgment or decree any case in the name of the state against any person or corporation for any violation of the Constitution or the laws of this state, in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district having jurisdiction, with like effect as if the suit was instituted by the Attorney General. Any district attorney may also institute and prosecute to final judgment or decree any case in which prosecution was deferred due to a finding that the defendant was incompetent to stand trial if the case is otherwise triable.
(2) The district attorney may transfer any case handled by him to a county prosecuting attorney when charges in such case no longer constitute a felony.
(3) The validity of any judgment or sentence shall not be affected by the division of jurisdiction under this section, and no judgment or sentence may be reversed or modified upon the basis that the case was not processed according to this section.
(4) A county prosecuting attorney or municipal prosecuting attorney may be designated by the district attorney to appear on behalf of the district attorney pursuant to an agreement relating to appearances in certain courts or proceedings in the county of the county prosecuting attorney or in the municipality of the municipal prosecuting attorney. Such agreement shall be filed with the circuit court clerk of any county where such agreement shall be operative. Such agreement shall be binding upon the district attorney and county prosecuting attorney or municipal prosecuting attorney until dissolved by either of them in writing upon five (5) days' notice.
(5) Where any statute of this state confers a jurisdiction, responsibility, duty, privilege or power upon a county attorney or county prosecuting attorney, either solely, jointly or alternatively with a district attorney, such county prosecuting attorney shall be responsible for the prosecution, handling, appearance, disposition or other duty conferred by such statute. Any such provision shall not be construed to bestow such responsibility, jurisdiction or power upon the district attorney where there is no elected county prosecuting attorney, and any such matter shall be handled pursuant to Section 19-3-49, Mississippi Code of 1972.
(6) The district attorney or his designated assistant, or the county prosecuting attorney or his designated assistant, shall assist the Attorney General in appeals from his district to the Mississippi Supreme Court and in other post judgment proceedings, and shall appear for oral argument before the Supreme Court when directed by the Supreme Court.
(7) The several district attorneys shall submit reports of revenues and expenditures and shall submit budget requests as required for State General Fund agencies. For purposes of budget control, the several offices of district attorney shall be considered General Fund agencies and the budget and accounts of the several offices, including salaries, travel expenses, office expenses and any other expenditures or revenues, shall be consolidated for all districts as far as such consolidation is practical.
All revenue or funds allocated or expended by a district attorney, whether such funds are appropriated from state funds, or whether such funds are received from county funds, grants or otherwise, shall be reported to the Legislative Budget Office.
(8) A district attorney shall be authorized to assign the duties of employees regardless of the source of funding for such employees.
SECTION 22. Section 41-30-27, Mississippi Code of 1972, is amended as follows:
41-30-27. (1) (a) A person may be admitted to an approved public or private treatment facility for emergency care and treatment upon a decree of the chancery court accepting an application for admission thereto accompanied by the certificate of two (2) licensed physicians. The application shall be to the chancery court of the county of such person's residence and may be made by any one (1) of the following: Either certifying physician, the patient's spouse or guardian, any relative of the patient, or any other person responsible for health, safety or welfare of all or part of the citizens within said chancery court's territorial jurisdiction. The application shall state facts to support the need for immediate commitment, including factual allegations showing that the person to be committed has threatened, attempted or actually inflicted physical harm upon himself or another. The physicians' certificates shall state that they examined the person within two (2) days of the certificate date and shall set out the facts to support the physicians' conclusion that the person is an alcoholic or drug addict who has lost the power of self-control with respect to the use of alcoholic beverages or habit-forming drugs and that unless immediately committed he is likely to inflict physical harm upon himself or others. A hearing on such applications shall be heard by the chancery court in term time or in vacation, and the hearing shall be held in the presence of the person sought to be admitted unless he fail or refuse to attend. Notice of the hearing shall be given to the person sought to be admitted, as soon as practicable after the examination by the certifying physicians, and the person sought to be admitted shall have an opportunity to be represented by counsel, and shall be entitled to have compulsory process for the attendance of witnesses.
(b) For the purpose of this section, the term "drug addict" shall have the meaning ascribed to it by Section 41-31-1(d).
(2) The chancery judge may refuse an application if in his opinion the application and certificate fail to sustain the grounds for commitment. Upon acceptance of the application after hearing thereon and decree sustaining the application by the judge, the person shall be transported to the facility by a peace officer, health officer, the applicant for commitment, the patient's spouse or the patient's guardian. The person shall be retained at the facility that admitted him, or be transferred to any other appropriate treatment resource, until discharged pursuant to subsection (3).
(3) The attending physician shall discharge any person committed pursuant to this section when he determines that the grounds for commitment no longer exist, but no person committed pursuant to this section shall be retained in any facility for more than five (5) days.
(4) The application filed
pursuant to subsection (1) of this section shall also contain * * * an affidavit for involuntary
commitment pursuant to Title 41, Chapter 31, Mississippi Code of 1972. If the
application for emergency involuntary commitment is accepted under subsection
(2) of this section, the chancery judge shall order a hearing on the * * * affidavit for commitment
pursuant to Title 41, Chapter 31, Mississippi Code of 1972, to be held on the
fifth day of such involuntary emergency commitment, the provisions of Section
41-31-5 regarding the time of hearing to the contrary notwithstanding;
provided, however, that at the time of such involuntary commitment the alleged
alcoholic or drug addict shall be served with a citation to appear at said
hearing and shall have an opportunity to be represented by counsel.
SECTION 23. Section 99-43-35, Mississippi Code of 1972, is amended as follows:
99-43-35. The victim has the right to the following information:
(a) As soon as practicable after the date of sentencing, the office of the prosecuting attorney shall notify the victim of the sentence imposed on the defendant.
(b) The names, addresses and telephone numbers of the appropriate agencies and departments to whom request for notice should be provided.
(c) The status of any post-conviction court review or appellate proceeding or any decisions arising from those proceedings shall be furnished to the victim by the Office of the Attorney General or the office of the district attorney, whichever is appropriate, within five (5) business days after the status is known.
(d) Upon any post-arrest release of the defendant, the sheriff or municipal jailer shall, upon request, notify the victim of the release of the defendant. In the case of domestic violence or sexual assault, the appropriate law enforcement agency shall make a reasonable attempt to notify the victim of the defendant's post-arrest release, regardless of the victim's exercise of the right to receive this information.
(e) The agency having physical custody of a prisoner shall, if provided a request for notice, and as soon as practicable, give notice to the victim of the escape and, subsequently, the return of the prisoner into custody.
(f) Upon receiving notice from the Department of Mental Health of the release of a person who was civilly committed under Section 41-21-63 as a person with unresolved felony charges found incompetent to stand trial, the office of the prosecuting attorney must notify a victim or victim representative who has complied with Section 99-43-9.
SECTION 24. This act shall take effect and be in force from and after July 1, 2019.