PRINTER'S NO. 2734
No. 2074 Session of 1989
INTRODUCED BY BISHOP, RICHARDSON, MORRIS, THOMAS, NOYE, MAIALE,
HOWLETT, KOSINSKI, HALUSKA, FOX, TANGRETTI, PESCI, TIGUE,
RYBAK, JAMES, PRESTON, HARPER, OLIVER AND RIEGER,
NOVEMBER 14, 1989
REFERRED TO COMMITTEE ON HEALTH AND WELFARE, NOVEMBER 14, 1989
AN ACT
1 Amending the act of July 9, 1976 (P.L.817, No.143), entitled "An
2 act relating to mental health procedures; providing for the
3 treatment and rights of mentally disabled persons, for
4 voluntary and involuntary examination and treatment and for
5 determinations affecting those charged with crime or under
6 sentence," adding definitions; further providing for
7 involuntary examination and treatment; establishing a review
8 board; providing for a commitment review officer; and
9 conferring powers and duties on the Office of Mental Health.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Section 103 of the act of July 9, 1976 (P.L.817,
13 No.143), known as the Mental Health Procedures Act, is amended
14 to read:
15 Section 103. Scope of Act.--This act establishes rights and
16 procedures for all involuntary treatment of mentally ill
17 persons, whether inpatient or outpatient, and for all voluntary
18 inpatient treatment of mentally ill persons. ["Inpatient
19 treatment" shall include all treatment that requires full or
20 part-time residence in a facility. For the purpose of this act,
1 a "facility" means any mental health establishment, hospital,
2 clinic, institution, center, day care center, base service unit,
3 community mental health center, or part thereof, that provides
4 for the diagnosis, treatment, care or rehabilitation of mentally
5 ill persons, whether as outpatients or inpatients.]
6 Section 2. The act is amended by adding sections to read:
7 Section 103.1. Definitions.--The following words and phrases
8 when used in this act shall have the meanings given to them in
9 this section unless the context clearly indicates otherwise:
10 "Commitment review officer." The Mental Health Commitment
11 Procedures Review Officer established under section 118.
12 "Deputy secretary." The Deputy Secretary for Mental Health
13 of the Department of Health.
14 "Facility." Any mental health establishment, hospital,
15 clinic, institution, center, day care center, base service unit,
16 community mental health center, or part thereof, which provides
17 for the diagnosis, treatment, care or rehabilitation of mentally
18 ill persons, whether as outpatients or inpatients. Inpatient
19 treatment." All treatment that requires full-time or part-time
20 residence in a facility.
21 "Office." The Office of Mental Health of the Department of
22 Health.
23 "Review board." The Mental Health Commitment Procedures
24 Review Board established under section 117.
25 Section 117. Review Board.--The office shall establish a
26 Mental Health Commitment Procedures Review Board, and shall
27 include in the office's budget adequate funds for administrative
28 assistance, office and travel expenses to permit the review
29 board to carry out its responsibilities.
30 (1) The review board shall consist of nine voting members
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1 appointed by the deputy secretary, one ex-officio member
2 appointed by the deputy secretary to represent the office and
3 one ex-officio member appointed by the Attorney General to
4 represent the Attorney General's office. Within three months of
5 the effective date of this act, three voting members shall be
6 appointed for three years, three for two years and three for one
7 year. Thereafter, all appointments or reappointments shall be
8 for a three-year term. One of the voting members shall be
9 appointed each year by the deputy secretary to serve as
10 chairperson of the review board. Voting members shall include:
11 (i) Two physicians who are board certified or board eligible
12 in psychiatry, one of whom is a full-time faculty member in the
13 department of psychiatry of an accredited school of medicine in
14 this Commonwealth and one of whom is not a full-time faculty
15 member and who is recommended by the president of the
16 Pennsylvania Psychiatric Society at the time of appointment. In
17 making these appointments, preference shall be given to
18 physicians who have substantial experience working with persons
19 subject to involuntary examination and treatment, either as
20 inpatients or outpatients.
21 (ii) Two nonphysicians who are employees of outpatient
22 psychiatric facilities and who have had substantial clinical or
23 administrative responsibility for the care of persons who have
24 at some point been subject to involuntary examination and
25 treatment.
26 (iii) Three attorneys who have been admitted to the bar in
27 this Commonwealth, whose appointments are approved by the
28 credentials committee of the Pennsylvania Bar Association and
29 who have substantial experience in matters related to mental
30 health hearings or issues of involuntary mental health treatment
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1 either in this Commonwealth or in another state. One of these
2 attorneys must be a full-time faculty member at an accredited
3 school of law in this Commonwealth and one must have had
4 experience as defense counsel for persons subject to involuntary
5 examinations and treatment.
6 (iv) One person who is a member of an organization of
7 mentally ill persons or of family members of such persons or of
8 an advocacy organization that promotes improvement in mental
9 health care.
10 (v) One person with training or experience deemed to be
11 relevant to the fulfillment of the responsibilities of the
12 review board.
13 (2) The review board shall meet at least four times a year
14 to carry out the responsibilities defined in this article.
15 (3) Voting members of the review board shall be paid a per
16 diem honorarium to cover expenses, as determined by the deputy
17 secretary.
18 Section 118. Commitment Review Officer.--The office shall
19 establish the position of Mental Health Commitment Procedures
20 Review Officer. This officer shall be appointed by and serve at
21 the pleasure of the deputy secretary. The commitment review
22 officer's appointment shall be approved by the review board. The
23 commitment review officer shall be an attorney with experience
24 in mental health-related aspects of the law and preferably in
25 mental health commitment hearings, or shall have a post-
26 bachelor's degree in a mental health-related field with
27 additional formal training and experience in the paralegal or
28 criminal justice fields, as well as experience related to
29 involuntary examination and treatment of persons with mental
30 illness. The office shall include in its budget requests for
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1 adequate salary for the commitment review officer and for
2 sufficient staff and budget to carry out his responsibilities.
3 The commitment review officer shall have the following powers
4 and duties:
5 (1) The commitment review officer, or his designee, shall
6 review a portion of mental health commitment hearings in each
7 county each year, through reading of records or attendance at
8 mental health hearings, or both, to determine whether the
9 provisions of this act are being adequately followed. The
10 commitment review officer, or his designee, shall also review,
11 in each county each year, a portion of outpatient treatment
12 records of patients for whom others have requested involuntary
13 examination and treatment, including cases in which mental
14 health personnel assisted in bringing about the examination and
15 cases in which mental health personnel declined to assist in
16 this manner. The office shall ensure that a record is kept at
17 all outpatient and emergency facilities under contract to the
18 office of all instances in which a third party made a request
19 that a patient be made subject to involuntary examination and
20 treatment and of the staff members' evaluation of and response
21 to the request. All records shall be preserved for seven years.
22 (i) This procedure shall review whether the rights of
23 persons subject to involuntary examination and treatment are
24 adequately protected, at mental health hearings, by the actions
25 of the office, hearing officers, county solicitors and defense
26 counsel with respect to the protection from involuntary
27 hospitalization and treatment provided under this act.
28 (ii) This procedure shall also review whether the interests
29 of persons and of the Commonwealth have been met insofar as
30 persons should be ordered to receive involuntary hospitalization
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1 and treatment when the criteria of this act are met or appear
2 likely to have been met if evidence had been properly presented.
3 (iii) This procedure shall also review whether mental health
4 personnel adequately protected the rights as well as the
5 interests of patients in determining whether to give assistance
6 to persons wishing to petition for involuntary examination and
7 treatment of another person.
8 (iv) If the commitment review officer determines that the
9 provisions of this act have not been met in one or more cases in
10 a given county, he may review a larger number of cases from that
11 county relative to cases from other counties until these
12 deficiencies have been corrected.
13 (2) When the commitment review officer determines that
14 persons' rights and interests have not been adequately
15 protected, either by failure to protect persons from involuntary
16 treatment when criteria of the act are not met or by failure to
17 provide involuntary treatment when it appears that criteria of
18 this act have been met or could have been established to have
19 been met, the commitment review officer, or his designee, shall
20 meet with representatives of the county mental health office,
21 the county solicitor, common pleas court, public defenders, law
22 enforcement officials and other relevant parties to attempt to
23 develop solutions to any deficiencies noted.
24 (3) When the commitment review officer determines that there
25 is a pattern of failure to follow the requirements of this act
26 in a particular county or a component of that county's mental
27 health hearing system, the commitment review officer shall so
28 inform the deputy secretary and the Attorney General and request
29 that this pattern be investigated and legal remedies applied.
30 (4) The commitment review officer shall from time to time,
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1 or upon the request of the deputy secretary, submit to the
2 deputy secretary recommendations for distributing information in
3 writing or in person to mental health and law enforcement
4 personnel to assist them in following the provisions of this act
5 in a manner that both protects the rights of persons subject to
6 hearings and protects the interest of persons in need of
7 involuntary treatment.
8 (5) The commitment review officer shall be present at
9 meetings of the review board and shall assist and advise the
10 review board in its activities.
11 Section 3. Section 301 of the act, amended November 26, 1978
12 (P.L.1362, No.324), is amended to read:
13 Section 301. Persons Who May be Subject to Involuntary
14 Emergency Examination and Treatment.--[(a) Persons Subject.--
15 Whenever a person is severely mentally disabled and in need of
16 immediate treatment, he may be made subject to involuntary
17 emergency examination and treatment. A person is severely
18 mentally disabled when, as a result of mental illness, his
19 capacity to exercise self-control, judgment and discretion in
20 the conduct of his affairs and social relations or to care for
21 his own personal needs is so lessened that he poses a clear and
22 present danger of harm to others or to himself.
23 (b) Determination of Clear and Present Danger.--(1) Clear
24 and present danger to others shall be shown by establishing that
25 within the past 30 days the person has inflicted or attempted to
26 inflict serious bodily harm on another and that there is a
27 reasonable probability that such conduct will be repeated. If,
28 however, the person has been found incompetent to be tried or
29 has been acquitted by reason of lack of criminal responsibility
30 on charges arising from conduct involving infliction of or
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1 attempt to inflict substantial bodily harm on another, such 30-
2 day limitation shall not apply so long as an application for
3 examination and treatment is filed within 30 days after the date
4 of such determination or verdict. In such case, a clear and
5 present danger to others may be shown by establishing that the
6 conduct charged in the criminal proceeding did occur, and that
7 there is a reasonable probability that such conduct will be
8 repeated. For the purpose of this section, a clear and present
9 danger of harm to others may be demonstrated by proof that the
10 person has made threats of harm and has committed acts in
11 furtherance of the threat to commit harm.
12 (2) Clear and present danger to himself shall be shown by
13 establishing that within the past 30 days:
14 (i) the person has acted in such manner as to evidence that
15 he would be unable, without care, supervision and the continued
16 assistance of others, to satisfy his need for nourishment,
17 personal or medical care, shelter, or self-protection and
18 safety, and that there is a reasonable probability that death,
19 serious bodily injury or serious physical debilitation would
20 ensue within 30 days unless adequate treatment were afforded
21 under this act; or
22 (ii) the person has attempted suicide and that there is the
23 reasonable probability of suicide unless adequate treatment is
24 afforded under this act. For the purposes of this subsection, a
25 clear and present danger may be demonstrated by the proof that
26 the person has made threats to commit suicide and has committed
27 acts which are in furtherance of the threat to commit suicide;
28 or
29 (iii) the person has substantially mutilated himself or
30 attempted to mutilate himself substantially and that there is
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1 the reasonable probability of mutilation unless adequate
2 treatment is afforded under this act. For the purposes of this
3 subsection, a clear and present danger shall be established by
4 proof that the person has made threats to commit mutilation and
5 has committed acts which are in furtherance of the threat to
6 commit mutilation.] (a) General Rule.--(1) Any person may be
7 made subject to involuntary emergency examination and treatment
8 if that person has a mental illness that has impaired the
9 person's judgment and self-control and if that person is in need
10 of treatment for this illness if:
11 (i) as a result of this impairment, the person engages in
12 behavior that poses a clear and present danger of harm to others
13 or to self, or of substantial damage to real and personal
14 property; or
15 (ii) the person is so gravely mentally disabled by this
16 illness so as to deprive the person of the judgment to make a
17 reasonable decision about his or her own need for treatment.
18 (2) Clear and present danger or grave mental disability must
19 be established based on the criteria established in this
20 section, and the specific act or acts that evidence the danger
21 must have occurred within 30 days of the determination of need
22 for involuntary treatment or, if the individual is already a
23 voluntary patient in a psychiatric hospital, within 30 days of
24 the date of admission to hospital and within 60 days of the
25 actual determination of need for involuntary treatment, during
26 the first 30 days of hospitalization, acts committed during the
27 30 days prior to hospitalization may be considered evidence of
28 clear and present danger. If the person has been found
29 incompetent to be tried, has been detained because of pending
30 criminal charges or has been acquitted by reason of lack of
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1 criminal responsibility on charges arising from conduct
2 involving infliction of or attempt to inflict bodily harm on
3 another, the 30-day and 60-day limitations shall not apply as
4 long as an application for examination and treatment is filed
5 within 30 days after the date of release from detention or
6 determination of verdict. In such a case, a clear and present
7 danger of harm to others may be shown by establishing by clear
8 and convincing evidence that the conduct charged in the criminal
9 proceeding did occur, that it meets the criteria for clear and
10 present danger of harm to self or others as defined in
11 subsection (b)(1), that it was a result of impairment of
12 judgment and self-control due to severe mental illness, and that
13 there is a reasonable probability that the conduct will be
14 repeated.
15 (3) Past behavior occurring within seven years of the
16 determination of whether a person should be subject to
17 involuntary treatment under any provision of this article shall
18 be relevant in any determination of presence of mental illness
19 and need for involuntary treatment. However, testimony regarding
20 past behavior that occurred more than seven years prior to
21 involuntary treatment determination may be admitted if it is
22 deemed relevant by the mental health hearing officer. Whenever
23 past behavior is deemed relevant, evidence of past behavior
24 shall include records of prior commitments, arrests or criminal
25 convictions, medical history records, and statements or other
26 evidence indicating violent or physically assaultive behavior or
27 other evidence of severe mental disability.
28 (b) Determination of Clear and Present Danger of Harm to
29 Others.--Clear and present danger of harm to others shall be
30 established if, within the time period described in subsection
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1 (a)(2), and as a result of mental impairment as defined in
2 subsection (a)(1), at least one of the following has occurred
3 and there is reasonable probability that such conduct will be
4 repeated:
5 (1) The person has inflicted or attempted to inflict serious
6 bodily harm on another.
7 (2) The person has committed an act which, if repeated under
8 foreseeable circumstances, would reasonably be expected to
9 result in serious bodily harm to another.
10 (c) Determination of Clear and Present Danger of Harm to
11 Self.--Clear and present danger of harm to self shall be
12 established if, within the time period described in subsection
13 (a)(2), and as a result of mental impairment as defined in
14 subsection (a)(1), at least one of the following has occurred
15 and there is reasonable probability that such conduct will be
16 repeated:
17 (1) The person has inflicted or attempted to inflict serious
18 bodily harm or mutilation upon himself.
19 (2) The person has committed as act which, if repeated under
20 foreseeable circumstances, would reasonably be expected to
21 result in serious bodily harm to self.
22 (3) The person has demonstrated, by conduct, an inability to
23 meet basic needs such as food, shelter or personal safety. It is
24 the intent of this paragraph to subject to involuntary
25 examination and treatment only those persons demonstrating such
26 an inability due, in medical probability, to impairment of
27 judgment and self-control due to mental illness.
28 (d) Determination of Clear and Present Danger of Acts
29 Against Property.--An act against property of others that fails
30 to meet the standards set in subsection (b) or (c) shall be
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1 considered evidence of clear and present danger to property and
2 need for involuntary treatment if the act occurs during the time
3 period defined in subsection (a)(2), is a result of mental
4 impairment as defined in subsection (a)(1), and results in
5 damage of at least $1,000 to the real or personal property of
6 self or others and if there is a reasonable probability that
7 such conduct will be repeated.
8 (e) Effect of Threats.--For the purposes of this section, a
9 clear and present danger of harm to others of self may be
10 demonstrated by proof that, within the time period defined in
11 subsection (a)(2), as a result of mental impairment as defined
12 in subsection (a)(1), the person has made a treat to commit acts
13 that would meet criteria for danger to self or others as defined
14 in subsection (b)(1) or (c)(1), and:
15 (1) the person has committed acts in furtherance of the
16 threat; or
17 (2) based upon past behavior, there is a reasonable
18 probability that the person will act on the threat.
19 (f) Determination of Grave Mental Disability.--Need for
20 involuntary treatment for grave mental disability shall be
21 determined if, within the time period defined in subsection
22 (a)(2), and as a result of mental impairment as defined in
23 subsection (a)(1), there is a state of grave mental disability
24 in which the capacity to make a reasonable decision about need
25 for treatment is lost, the conduct is not accounted for by
26 personal or cultural beliefs likely to be observed in persons
27 who are not mentally ill, there is reasonable probability that
28 such conduct will be repeated and one of the following has
29 occurred:
30 (1) The person has engaged repeatedly, over a period of
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1 hours or days, in grossly disorganized or bizarre behavior
2 resulting from mental illness; and it is medically probable that
3 the behavior occurred as a result of hallucinations, delusions
4 or severely disordered and illogical thinking due to mental
5 illness.
6 (2) The person repeatedly exhibits a pattern of behavior,
7 not characteristic of the person when not severely mentally ill,
8 that includes extreme withdrawal from interaction with other
9 persons and failure to manage personal affairs in such areas as
10 hygiene, nutrition, finances, care of dependents, or other basic
11 needs or responsibilities; and the behavior, in medical
12 probability, is a manifestation of a psychiatric state of
13 depression, manic-depression or psychosis.
14 (3) The person exhibits behavior which is, in medical
15 probability, a manifestation of a psychiatric state of mania,
16 depression, manic-depression or psychosis and one of the
17 following occurs:
18 (i) The person commits an act, which is not characteristic
19 of the person when not mentally ill, that would reasonably be
20 expected to have lasting and significant deleterious effects or
21 that would reasonably be expected, under foreseeable
22 circumstances, to have such effects on the health, safety or
23 welfare of those physically or financially dependent on the
24 person.
25 (ii) The person threatens to commit an act described in
26 subparagraph (i) and commits acts in furtherance of the threat.
27 (iii) The person threatens to commit an act described in
28 subparagraph (i); and, based upon past behavior, there is a
29 reasonable probability that the person will act on the threats.
30 Section 4. The act is amended by adding sections to read:
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1 Section 307 Care.--(a) General rule.--It shall be the
2 responsibility of the office and its county administrators for
3 mental health and mental retardation services to ensure that:
4 (1) persons committed by mental health hearing officers to
5 receive outpatient psychiatric care and offered and provided
6 care in accordance with the order and any other needed mental
7 health care as determined by clinical assessment until the order
8 expires or until the need for care is determined to have ended;
9 and
10 (2) adequate consideration is given to petitioning for
11 further periods of outpatient commitment when such orders expire
12 or for return to inpatient care if the person will not cooperate
13 with the order to receive outpatient care.
14 (b) Monitoring.--The office, on a county-by-county basis,
15 shall monitor the psychiatric care of persons who are under an
16 order of a mental health hearing officer to receive such care.
17 If the person fails to cooperate with an order to receive
18 treatment at an outpatient facility under contract to the
19 office, the office shall ensure that timely consideration is
20 given to deciding whether to initiate a request to the county
21 solicitor to petition a mental health hearing officer for the
22 involuntary return of the person to inpatient care. This
23 decision shall be made by the facility administrator and
24 treatment team, based on the patient's needs, the likelihood of
25 eliciting cooperation by other means and the nature of the acts
26 that led initially to the order for involuntary treatment. The
27 office shall ensure that, prior to the expiration of an order
28 for involuntary commitment to outpatient treatment,
29 consideration is given to whether a further period of outpatient
30 commitment is needed and that petition is made for such a
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1 further period if indicated. The office shall ensure that
2 adequate records are kept at each facility of the decisions
3 described in this section and the reasons for them, and that
4 copies of these records are maintained at each facility in a
5 single filing system so that they may be examined by
6 representatives of the office upon request.
7 (c) Return to Inpatient Care.--The office, on a county-by-
8 county basis, shall develop procedures for return to inpatient
9 care of persons who fail to cooperate with orders for outpatient
10 care and who are deemed to require return to inpatient hospitals
11 and shall request assistance from appropriate law enforcement
12 officials in the development of these procedures. These
13 procedures shall include:
14 (1) Guidelines for deciding when such a request should be
15 made.
16 (2) Procedures for initiating the request to the office of
17 the county solicitor to petition a mental health hearing officer
18 for an order.
19 (3) Procedures for the transportation of the person subject
20 to the order to a hearing on the petition for return to
21 inpatient treatment and for transportation to an inpatient
22 facility.
23 (4) Identification of an inpatient facility willing and able
24 to provide psychiatric and other forms of care necessary in the
25 individual case.
26 (d) Oversight.--The deputy secretary shall meet with the
27 review board at least twice a year to report on procedures under
28 subsection (c) and the monitoring of these procedures and to
29 respond to any questions put forth by members of the review
30 board concerning these matters. The review board shall submit to
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1 the deputy secretary and shall make publicly available a yearly
2 report reviewing the adequacy of the procedures and making any
3 recommendations for improvement in these procedures.
4 Section 308. Follow-Up Care.--The office shall establish a
5 procedure for monitoring the quality of follow-up care given to
6 persons committed to periods of outpatient treatment, as
7 follows:
8 (1) This monitoring process shall include the investigation
9 of a proportion of such cases from each county to determine:
10 (i) whether regular mental health care, in accordance with
11 the commitment order, was provided;
12 (ii) whether, if the person subject to the order failed to
13 cooperate with such care, appropriate attempts were made to
14 convince the person to cooperate with the order;
15 (iii) whether, if the person continued to be uncooperative,
16 adequate consideration was given by the administrator and
17 treatment team to petitioning for a return of the person to
18 inpatient treatment;
19 (iv) whether, before the expiration of such an order,
20 adequate consideration was given to the possible need for
21 further outpatient commitment; and
22 (v) whether petition was made and adequately supported for
23 further outpatient commitment if indicated.
24 (2) If one or more cases in a county are found in which
25 inadequate follow-up was received or in which no action was
26 taken when treatment was not received, a larger proportion of
27 cases in this county relative to other counties may be monitored
28 until these deficiencies are corrected.
29 (3) The deputy secretary shall meet with the review board at
30 least twice a year to report on procedures in this section and
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1 the monitoring of these procedures and to respond to any
2 questions put forth by members of the review board concerning
3 these matters. The review board shall submit to the deputy
4 secretary and shall make publicly available a yearly report
5 reviewing the adequacy of these procedures and making any
6 recommendations for improvement in these procedures.
7 Section 5. Within three months of the enactment of this act,
8 the Office of Mental Health shall prepare and distribute a
9 handbook on the use of the new procedures, summarizing the
10 changes and documenting the legislative history of the bill to
11 clarify the intent of the General Assembly. This documentation
12 shall include specific examples of behavior that, according to
13 legislative arguments and expert testimony concerning the bill,
14 characterize the situations to which the criteria for subjecting
15 persons to involuntary examination and treatment were meant to
16 apply. This handbook shall be distributed to psychiatry
17 departments of general, free-standing and State hospitals;
18 offices of all county solicitors; public defender associations
19 and foundations in this Commonwealth; regional mental
20 health/retardation offices; community mental health base service
21 units under contract to the Office of Mental Health; advocacy
22 organizations known to the Office of Mental Health; central
23 offices of Statewide mental health professional organizations of
24 psychiatrists, social workers, psychologists and nurses; and
25 other individuals and organizations who are deemed to have an
26 interest in these changes or who request copies. The Office of
27 Mental Health shall not be required to distribute more than ten
28 copies of the handbook to any single individual, agency or
29 organization.
30 Section 6. This act shall take effect in 60 days.
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