PRINTER'S NO. 1307

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 1105 Session of 1977


        INTRODUCED BY COPPERSMITH AND DOUGHERTY, SEPTEMBER 27, 1977

        REFERRED TO PUBLIC HEALTH AND WELFARE, SEPTEMBER 27, 1977

                                     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," further providing for Mental Health Review
     7     Officers, for the use of statistical data, for immunity and
     8     for involuntary treatment; excluding Sundays from the
     9     computation of time; and providing for a return to inpatient
    10     status, for a stay of proceedings of a person charged with a
    11     crime and for voluntary treatment of a person charged with a
    12     crime or serving a sentence.

    13     The General Assembly of the Commonwealth of Pennsylvania
    14  hereby enacts as follows:
    15     Section 1.  Sections 109, 110, 114 and 206, subsection (d) of
    16  section 302, subsection (c) of section 303 and sections 304 and
    17  305, act of July 9, 1976 (P.L.817, No.143), known as the "Mental
    18  Health Procedures Act," are amended to read:
    19     Section 109.  Mental Health Review Officer.--(a)  Legal
    20  proceedings concerning extended involuntary emergency treatment
    21  under section 303(c), [or] court-ordered involuntary treatment
    22  under section 304 or 305 or transfer hearings under section 306,
    23  may be conducted by a judge of the court of common pleas or by a


     1  mental health review officer authorized by the court to conduct
     2  the proceedings. Mental health review officers shall be members
     3  of the bar of the Supreme Court of Pennsylvania, without
     4  restriction as to the county of their residence and where
     5  possible should be familiar with the field of mental health.
     6  They shall be appointed by the respective courts of common pleas
     7  for terms not to exceed one year, and may be reappointed to
     8  successive terms. Law-trained municipal court judges may be
     9  appointed Mental Health Review Officers.
    10     (b)  In all cases in which the hearing is conducted by a
    11  mental health review officer, a person made subject to treatment
    12  shall have the right to petition the court of common pleas for
    13  review of the certification. A hearing shall be held within 72
    14  hours after the petition is filed unless a continuance is
    15  requested by the person's counsel. The hearing shall include a
    16  review of the certification and such evidence as the court may
    17  receive or require. If the court determines that further
    18  involuntary treatment is necessary and that the procedures
    19  prescribed by this act have been followed, it shall deny the
    20  petition. Otherwise, the person shall be discharged.
    21     Section 110.  Written Applications, Petitions, Statements and
    22  Certifications.--(a)  All written statements pursuant to section
    23  302(a)(2), and all applications, petitions, and certifications
    24  required under the provisions of this act shall be made subject
    25  to the penalties provided under 18 Pa.C.S. § 4904 (relating to
    26  unsworn falsification to authorities) and shall contain a notice
    27  to that effect.
    28     (b)  All such applications, petitions, statements and
    29  certifications shall be filed with the county administrator in
    30  the county where the person was made subject to examination and
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     1  treatment and such other county in the Commonwealth, if any, in
     2  which the person usually resides.
     3     (c)  Subsections (a) and (b) shall not apply to patients
     4  admitted pursuant to Article II when no part of the patient's
     5  care is provided with public funds provided that the department
     6  may require facilities to report clinical and statistical
     7  information so long as the data does not identify individual
     8  patients.
     9     (d)  No public official acting in an official capacity shall
    10  be required to pay the court of common pleas any filing fee
    11  which in the absence of this provision would be required upon
    12  the filing of a petition for involuntary treatment under this
    13  act.
    14     Section 114.  Immunity from Civil and Criminal Liability.--
    15  (a)  In the absence of willful misconduct or gross negligence, a
    16  county administrator, a director of a facility, a physician, a
    17  peace officer or any other authorized person who participates in
    18  a decision that a person be examined or treated under this act,
    19  or that a person be discharged, or placed under partial
    20  hospitalization, outpatient care or leave of absence, or that
    21  the restraint upon such person be otherwise reduced, or a county
    22  administrator or other authorized person who denies an
    23  application for involuntary emergency examination and treatment,
    24  shall not be civilly or criminally liable for such decision or
    25  for any of its consequences.
    26     (b)  A judge or a mental health review officer shall not be
    27  civilly or criminally liable for any actions taken or decisions
    28  made by him pursuant to the authority conferred by this act.
    29     Section 206.  Withdrawal from Voluntary Inpatient
    30  Treatment.--(a)  A person in voluntary inpatient treatment may
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     1  withdraw at any time by giving written notice unless, as stated
     2  in section 203, he has agreed in writing at the time of his
     3  admission that his release can be delayed following such notice
     4  for a period to be specified in the agreement, provided that
     5  such period shall not exceed 72 hours, not including a Sunday.
     6     (b)  If the person is under the age of 14, his parent, legal
     7  guardian, or person standing in loco parentis may effect his
     8  release. If any responsible party believes that it would be in
     9  the best interest of a person under 14 years of age in voluntary
    10  treatment to be withdrawn therefrom or afforded treatment
    11  constituting a less restrictive alternative, such party may file
    12  a petition in the Juvenile Division of the court of common pleas
    13  for the county in which the person under 14 years of age
    14  resides, requesting a withdrawal from or modification of
    15  treatment. The court shall promptly appoint an attorney for such
    16  minor person and schedule a hearing to determine what inpatient
    17  treatment, if any, is in the minor's best interest. The hearing
    18  shall be held within ten days of receipt of the petition, unless
    19  continued upon the request of the attorney for such minor. The
    20  hearing shall be conducted in accordance with the rules
    21  governing other Juvenile Court proceedings.
    22     (c)  Nothing in this act shall be construed to require a
    23  facility to continue inpatient treatment where the director of
    24  the facility determines such treatment is not medically
    25  indicated. Any dispute between a facility and a county
    26  administrator as to the medical necessity for voluntary
    27  inpatient treatment of a person shall be decided by the
    28  Commissioner of Mental Health or his designate.
    29     Section 302.  Involuntary Emergency Examination and Treatment
    30  Authorized by a Physician - Not to Exceed Seventy-two Hours.--
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     1
     2  * * *
     3     (d)  Duration of Emergency Examination and Treatment.--A
     4  person who is in treatment pursuant to this section shall be
     5  discharged whenever it is determined that he no longer is in
     6  need of treatment and in any event within 72 hours, (not
     7  including a Sunday) unless within such period:
     8     (1)  he is admitted to voluntary treatment pursuant to
     9  section 202 of this act; or
    10     (2)  a certification for extended involuntary emergency
    11  treatment is filed pursuant to section 303 of this act.
    12     Section 303.  Extended Involuntary Emergency Treatment
    13  Certified by a Judge or Mental Health Review Officer - Not to
    14  Exceed Twenty Days.--* * *
    15     (c)  Informal [Hearing] Conference on Extended Emergency
    16  Treatment Application.--(1)  At the commencement of the informal
    17  [hearing] conference, the judge or the mental health review
    18  officer shall inform the person of the nature of the
    19  proceedings. Information relevant to whether the person is
    20  severely mentally disabled and in need of treatment shall be
    21  reviewed, including the reasons that continued involuntary
    22  treatment is considered necessary. Such explanation shall be
    23  made by a physician who examined the person and shall be in
    24  terms understandable to a layman. Ordinary rules of evidence
    25  shall not necessarily apply. The person or his representative
    26  shall have the right to ask questions of the physician and of
    27  any other witnesses and to present any relevant information. At
    28  the conclusion of the review, if the judge or the review officer
    29  finds that the person is severely mentally disabled and in need
    30  of continued involuntary treatment, he shall so certify.
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     1  Otherwise, he shall direct that the facility director or his
     2  designee discharge the person.
     3     (2)  A [stenographic or other sufficient] record of the
     4  proceedings which need not be a stenographic record shall be
     5  made. Such record shall be kept by the court or mental health
     6  review officer for at least one year.
     7     * * *
     8     Section 304.  Court-ordered Involuntary Treatment Not to
     9  Exceed Ninety Days.--(a)  Persons for Whom Application May be
    10  Made.--(1) A person who is severely mentally disabled and in
    11  need of treatment, as defined in section 301(a), may be made
    12  subject to court-ordered involuntary treatment upon a
    13  determination of clear and present danger under section
    14  301(b)(1) (serious bodily harm to others), or section
    15  301(b)(2)(i) (inability to care for himself, creating a danger
    16  of death or serious harm to himself), or 301(b)(2)(ii)
    17  (attempted suicide), or 301(b)(2)(iii) (self-mutilation).
    18     (2)  Where a petition is filed for a person already subject
    19  to involuntary treatment, it shall be sufficient to represent,
    20  and upon hearing to reestablish, that the conduct originally
    21  required by section 301 in fact occurred, and that his condition
    22  continues to evidence a clear and present danger to himself or
    23  others. In such event, it shall not be necessary to show the
    24  reoccurrence of dangerous conduct, either harmful or
    25  debilitating, within the past 30 days.
    26     (b)  Procedures for Initiating Court-ordered Involuntary
    27  Treatment for Persons Already Subject to Involuntary
    28  Treatment.--(1)  Petition for court-ordered involuntary
    29  treatment for persons already subject to treatment under
    30  sections 303, 304 and 305 may be made by the county
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     1  administrator or the director of the facility to the court of
     2  common pleas.
     3     (2)  The petition shall be in writing upon a form adopted by
     4  the department and shall include a statement of the facts
     5  constituting reasonable grounds to believe that the person is
     6  severely mentally disabled and in need of treatment. The
     7  petition shall state the name of any examining physician and the
     8  substance of his opinion regarding the mental condition of the
     9  person. It shall also state that the person has been given the
    10  information required by subsection (b)(3). [and shall include
    11  copies of all documents relating to examination and treatment of
    12  the person which are required under this act.]
    13     (3)  Upon the filing of the petition the county administrator
    14  shall serve a copy on the person, his attorney, and those
    15  designated to be kept informed, as provided in section 302(c),
    16  including an explanation of the nature of the proceedings, the
    17  person's right to an attorney and the services of an expert in
    18  the field of mental health, as provided by subsection (d).
    19     (4)  A hearing on the petition shall be held in all cases,
    20  not more than five days after the filing of the petition.
    21     (5)  Treatment shall be permitted to be maintained pending
    22  the determination of the petition.
    23     (c)  Procedures for Initiating Court-ordered Involuntary
    24  Treatment for Persons not in Involuntary Treatment.--(1) Any
    25  responsible party may file a petition in the court of common
    26  pleas requesting court-ordered involuntary treatment for any
    27  person not already in involuntary treatment for whom application
    28  could be made under subsection (a).
    29     (2)  The petition shall be in writing upon a form adopted by
    30  the department and shall set forth facts constituting reasonable
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     1  grounds to believe that the person is within the criteria for
     2  court-ordered treatment set forth in subsection (a). The
     3  petition shall state the name of any examining physician and the
     4  substance of his opinion regarding the mental condition of the
     5  person.
     6     (3)  Upon a determination that the petition sets forth such
     7  reasonable cause, the court shall appoint an attorney to
     8  represent the person and set a date for the hearing as soon as
     9  practicable. The attorney shall represent the person unless it
    10  shall appear that he can afford, and desires to have, private
    11  representation.
    12     (4)  The court, by summons, shall direct the person to appear
    13  for a hearing. The court may issue a warrant directing a person
    14  authorized by the county administrator or a peace officer to
    15  bring such person before the court at the time of the hearing if
    16  there are reasonable grounds to believe that the person will not
    17  appear voluntarily. A copy of the petition shall be served on
    18  such person at least three days before the hearing together with
    19  a notice advising him that an attorney has been appointed who
    20  shall represent him unless he obtains an attorney himself, that
    21  he has a right to be assisted in the proceedings by an expert in
    22  the field of mental health, and that he may request or be made
    23  subject to psychiatric examination under subsection (c)(5).
    24     (5)  Upon motion of either the petitioner or the person, or
    25  upon its own motion, the court may order the person to be
    26  examined by a psychiatrist appointed by the court. Such
    27  examination shall be conducted on an outpatient basis, and the
    28  person shall have the right to have counsel present. A report of
    29  the examination shall be given to the court and counsel at least
    30  48 hours prior to the hearing.
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     1     (6)  Involuntary treatment shall not be authorized during the
     2  pendency of a petition except in accordance with section 302 or
     3  section 303.
     4     (d)  Professional Assistance.--A person with respect to whom
     5  a hearing has been ordered under this section shall have and be
     6  informed of a right to employ a physician, clinical psychologist
     7  or other expert in mental health of his choice to assist him in
     8  connection with the hearing and to testify on his behalf. If the
     9  person cannot afford to engage such a professional, the court
    10  shall, on application, allow a reasonable fee for such purpose.
    11  The fee shall be a charge against the mental health and mental
    12  retardation program of the locality.
    13     (e)  Hearings on Petition for Court-ordered Involuntary
    14  Treatment.--A hearing on a petition for court-ordered
    15  involuntary treatment shall be conducted according to the
    16  following:
    17     (1)  The person shall have the right to counsel and to the
    18  assistance of an expert in mental health.
    19     (2)  The person shall not be called as a witness without his
    20  consent.
    21     (3)  The person shall have the right to confront and cross-
    22  examine all witnesses and to present evidence in his own behalf.
    23     (4)  The hearing shall be public unless it is requested to be
    24  private by the person or his counsel.
    25     (5)  A stenographic or other sufficient record shall be made,
    26  which shall be impounded by the court and may be obtained or
    27  examined only upon the request of the person or his counsel or
    28  by order of the court on good cause shown.
    29     (6)  The hearing shall be conducted by a judge or by a mental
    30  health review officer and may be held at a location other than a
    19770S1105B1307                  - 9 -

     1  courthouse when doing so appears to be in the best interest of
     2  the person.
     3     (7)  A decision shall be rendered within 48 hours after the
     4  close of evidence.
     5     (f)  Determination and Order.--Upon a finding by clear and
     6  convincing evidence that the person is severely mentally
     7  disabled and in need of treatment and subject to subsection (a),
     8  an order shall be entered directing treatment of the person in
     9  an approved facility as an inpatient or an outpatient, or a
    10  combination of such treatment as the director of the facility
    11  shall from time to time determine. Inpatient treatment shall be
    12  deemed appropriate only after full consideration has been given
    13  to less restrictive alternatives. Investigation of treatment
    14  alternatives shall include consideration of the person's
    15  relationship to his community and family, his employment
    16  possibilities, all available community resources, and
    17  guardianship services. An order for inpatient treatment shall
    18  include findings on this issue.
    19     (g)  Duration of Court-ordered Involuntary Treatment.--(1) A
    20  person may be made subject to court-ordered involuntary
    21  treatment under this section for a period not to exceed 90 days,
    22  excepting only that: Persons may be made subject to court-
    23  ordered involuntary treatment under this section for a period
    24  not to exceed one year if the person meets the criteria
    25  established by clause (2).
    26     (2)  A person may be subject to court-ordered involuntary
    27  treatment for a period not to exceed one year if:
    28     (i)  severe mental disability is based on acts giving rise to
    29  the following charges under the Pennsylvania Crimes Code: murder
    30  (§ 2502); voluntary manslaughter (§ 2503); aggravated assault (§
    19770S1105B1307                 - 10 -

     1  2702); kidnapping (§ 2901); rape (§ 3121(1) and (2));
     2  involuntary deviate sexual intercourse (§ 3123(1) and (2));
     3  arson (§ 3301); and
     4     (ii)  a finding of incompetency to be tried or a verdict of
     5  acquittal because of lack of criminal responsibility has been
     6  entered.
     7     [(2)] (3)  If at any time the director of a facility
     8  concludes that the person is not severely mentally disabled or
     9  in need of treatment pursuant to subsection (a), he shall
    10  discharge the person provided that no person subjected to
    11  involuntary treatment pursuant to clause (2) may be discharged
    12  without a hearing conducted pursuant to clause (4).
    13     (4)  In cases involving involuntary treatment pursuant to
    14  clause (2), whenever the period of court-ordered involuntary
    15  treatment has expired and neither the director nor the county
    16  administrator intends to apply for an additional period of
    17  court-ordered involuntary treatment pursuant to section 305 or
    18  at any time the director concludes that the person is not
    19  severely mentally disabled or in need of treatment, the director
    20  shall petition the court which ordered the involuntary treatment
    21  for the unconditional or conditional release of the person.
    22  Notice of such petition shall be given to the person, the county
    23  administrator and the district attorney. Within 15 days after
    24  the petition has been filed, the court shall hold a hearing to
    25  determine if the person is severely mentally disabled and in
    26  need of treatment. Petitions which must be filed simply because
    27  the period of involuntary treatment will expire shall be filed
    28  at least ten days prior to the expiration of the court-ordered
    29  period of involuntary treatment. If the court determines after
    30  hearing that the person is severely mentally disabled and in
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     1  need of treatment, it may order additional involuntary treatment
     2  not to exceed one year; if the court does not so determine, it
     3  shall order the discharge of the person.
     4     Section 305.  Additional Periods of Court-ordered Involuntary
     5  Treatment.--At the expiration of a period of court-ordered
     6  involuntary treatment under section 304(g), or this section the
     7  court may order treatment for an additional period upon the
     8  application of the county administrator or the director of the
     9  facility in which the person is receiving treatment. Such order
    10  shall be entered upon hearing on findings as required by
    11  sections 304(a) and (b), and the further finding of a need for
    12  continuing involuntary treatment as shown by conduct during the
    13  person's most recent period of court-ordered treatment. The
    14  additional period of involuntary treatment shall not exceed 180
    15  days; provided that persons meeting the criteria of section
    16  304(g)(2) may be subject to an additional period of up to one
    17  year of involuntary treatment. A person found dangerous to
    18  himself under section 301(b)(2)(i),(ii) or (iii) shall be
    19  subject to an additional period of involuntary full-time
    20  inpatient treatment only if he has first been released to a less
    21  restrictive alternative. This limitation shall not apply where,
    22  upon application made by the county administrator or facility
    23  director, it is determined by a judge or mental health review
    24  officer that such release would not be in the person's best
    25  interest.
    26     Section 2.  The act is amended by adding a section to read:
    27     Section 307.  Return to Inpatient Status.--Where any
    28  involuntary treatment is directed or authorized under this act
    29  but thereafter is determined by the director of the facility to
    30  have become inappropriate or ineffective, he may require the
    19770S1105B1307                 - 12 -

     1  treatment to be changed or the person to be returned to
     2  inpatient immediately. Such inpatient treatment shall continue
     3  as long as the director of the facility shall deem it necessary,
     4  not to exceed the term originally ordered by the court. If, in
     5  these circumstances, the person shall refuse inpatient
     6  treatment, the court or mental health review officer or county
     7  administrator, upon application of the director of the facility,
     8  may issue a warrant directing a person authorized by him, or any
     9  peace officer, to take such person to the facility. The
    10  application shall set forth the reason for requiring inpatient
    11  treatment and the grounds for believing that such treatment has
    12  been refused.
    13     Section 3.  Subsection (b) of section 402 and subsections (c)
    14  and (f) of section 403 of the act are amended to read:
    15     Section 402.  Incompetence to Proceed on Criminal Charges and
    16  Lack of Criminal Responsibility as Defense.--* * *
    17     (b)  Involuntary Treatment of Persons Found Incompetent to
    18  Stand Trial Who are Not Mentally Disabled.--Notwithstanding the
    19  provisions of Article III of this act, a court may order
    20  involuntary treatment of a person found incompetent to stand
    21  trial but who is not severely mentally disabled, such
    22  involuntary treatment not to exceed a specific period of [30] 60
    23  days. Involuntary treatment pursuant to this subsection may be
    24  ordered only if the court is reasonably certain that the
    25  involuntary treatment will provide the defendant with the
    26  capacity to stand trial. The court may order outpatient
    27  treatment, partial hospitalization or inpatient treatment.
    28     * * *
    29     Section 403.  Hearing and Determination of Incompetency to
    30  Proceed; Stay of Proceedings; Dismissal of Charges.--* * *
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     1     (c)  Defendant's Right to Counsel; Reexamination.--A person
     2  who is determined to be incompetent to proceed shall have a
     3  continuing right to counsel so long as the criminal charges are
     4  pending. Following such determination, the person charged shall
     5  be reexamined not less than every [60] 90 days by a psychiatrist
     6  appointed by the court and a report of reexamination shall be
     7  submitted to the court and to counsel.
     8     * * *
     9     (f)  Stay of Proceedings.--In no instance shall the
    10  proceedings be stayed for a period in excess of the maximum
    11  sentence that may be imposed for the crime or crimes charged, or
    12  [five] ten years, whichever is less.
    13     Section 4.  The act is amended by adding a section to read:
    14     Section 407.  Voluntary Treatment of A Person Charged With
    15  Crime Or Serving Sentence.--(a)  Whenever a person in criminal
    16  detention, whether in lieu of bail or serving a sentence,
    17  believes that he is in need of treatment and substantially
    18  understands the nature of voluntary treatment he may submit
    19  himself to examination and treatment under this act, provided
    20  that at least one physician certifies the necessity of such
    21  treatment and certifies further that such treatment cannot be
    22  adequately provided at the prison or correctional facility where
    23  the person then is detained. Such certificate shall set forth
    24  the specific grounds which make transfer to a mental health
    25  facility necessary.
    26     (b)  Before any inmate of a prison or correctional facility
    27  may be transferred to a mental health facility for the purpose
    28  of examination and treatment the court shall review the
    29  certification of the physician that such transfer is necessary
    30  and may request any other information concerning the necessity
    19770S1105B1307                 - 14 -

     1  of such transfer. Upon such review the court shall either
     2  approve or disapprove the transfer.
     3     (c)  The court of common pleas for the judicial district in
     4  which the prison or correctional facility is located shall have
     5  jurisdiction for the purpose set forth in this section.
     6     (d)  Transfer to a mental health facility shall not affect
     7  the condition of security required by the person's criminal
     8  detention. However, the court shall not order maximum security
     9  psychiatric care merely on the ground that the person has been
    10  detained in a prison or correctional facility.
    11     (e)  A report of the person's mental condition shall be made
    12  by the mental health facility to the court within 30 days of the
    13  person's transfer to such facility. Such report shall also set
    14  forth the specific grounds which require continued treatment at
    15  a mental health facility. After the initial report the facility
    16  shall thereafter report to the court every 180 days.
    17     (f)  If at any time the person gives notice of his intent to
    18  withdraw from treatment at the mental health facility he shall
    19  be returned to the authority entitled to have him in custody, or
    20  proceedings may be initiated under section 304 of this act.
    21     (g)  The period of voluntary treatment under this section
    22  shall be credited as time served on account of any sentence to
    23  be imposed on pending charges or any unexpired term of
    24  imprisonment.
    25     Section 5.  This act shall take effect in 60 days.




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