OFFICE OF ADMINSTRATIVE HEARINGS OAH HEARINGS INVOLVING COMMITTMENT

OFFICE OF ADMINSTRATIVE HEARINGS (OAH) HEARINGS INVOLVING COMMITTMENT TO PSYCHIATRIC FACILITIES

THREE TYPES OF HEARINGS � Involuntary admission of individuals to psychiatric units in private or state hospitals (“IVA”) or to Developmental Disability Administration (“DDA”) Facilities � Release or revocation of conditional release hearings for defendants the courts have found to be not criminally responsible and have committed to state hospitals (“NCRs”) � Hearings to compel psychiatric patients to take specified medication (“Forced Meds”)

OAH IS A INDEPENDENT AGENCY WITHIN THE EXECUTIVE BRANCH OF GOVERNMENT. OAH’S AUTHORITY TO CONDUCT HEARINGS COMES FROM EITHER AGENCY OR STATUTORY DELEGATION. THE DEPARTMENT OF HEALTH AND MENTAL HYGIENE (“DHMH”) IS THE DELEGATING AGENCY

INVOLUNTARY ADMISSION HEARINGS (“IVAs”) Health-General Article § 10 -632 COMAR 10. 21. 01

“IVAs” ARE INVOLUNTARY ADMISSIONS OF INDIVIDUALS WITH MENTAL DISORDERS TO INPATIENT: �State psychiatric hospitals �Freestanding private psychiatric hospitals �Psychiatric wards in general hospitals �Veteran’s Administration hospitals COMAR 10. 21. 01

TIMELINE FOR IVA HEARING �OAH shall hold IVA hearings within 10 days of a patient’s initial confinement �ALJ may postpone hearings, for good cause, for no more than 7 days �ALJ shall state the reasons for the PP on the record Health-General Article §§ 10 -632(b) and (c)(1)

PATIENT AT HEARING � The patient has the right to attend or to waive his attendance � The patient has the right to testify and almost always does � The patient or the hospital sometimes calls the patient’s family member(s) as witnesses (who are required to receive notice of the hearing) � A public defender is automatically assigned to represent a patient � The public defender’s investigator will meet with the patient one or two days before the hearing � The patient may have a private attorney, at his/her own expense, or reject the public defender and proceed pro se

WAIVER OF PATIENT’S PRESENCE AT HEARING � Knowingly and intelligently made � Witnessed by the individual's counsel and � Witnessed by the ALJ (ALJ must see the patient and inquire whether he/she wants to attend the hearing) COMAR 10. 21. 09 C(2)(b)

STANDARD and BURDEN OF PROOF The hospital bears the burden of proof by clear and convincing evidence COMAR 10. 21. 09 F

MEDICAL TESTIMONY AT HEARING ALJs shall require hospitals to present the testimony of one of the following, who has examined the patient within 48 hours of hearing: § A psychiatrist § A physician in an accredited psychiatric residency program, who is under the supervision of a psychiatrist § A psychologist COMAR 10. 21. 09 E(1)

CRITERIA FOR ALJ’S DECISION TO RETAIN PATIENT • Patient has a mental disorder • Patient needs inpatient care or treatment • Patient presents a danger to his/her/others’ life or safety • Patient is unable or unwilling to be voluntarily admitted to the facility and • No less restrictive form of intervention is available that is consistent with the Patient’s welfare and safety and if the Patient is 65 years old or older and is to be admitted to a State facility • he/she has been evaluated by a geriatric evaluation team finding that no less restrictive form of care or treatment was appropriate Health General Article § 10 -632(e)(2); COMAR 10. 21. 09 F

PATIENT TO BE RELEASED � IF ANY OF THE REQUIRED CRITERIA FOR RETENTION HAVE NOT BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE OR � IF A SUBSTANTIAL PROCEDURAL VIOLATION HAS OCCURRED

PROCEDURAL RELEASE Procedural release is made at the conclusion of the hearing if: § An error in the process has occurred; § The error is substantial; § No other remedy is available, which is consistent with due process and the protection of the patient’s rights COMAR 10. 21. 09 G(3)

The ALJ’S DECISION � Decision is made orally from the bench and written on multi-part decision form � Basis for decision is explained orally at hearing � Decision is final and appealable under the Administrative Procedure Act and both parties have the right to file an appeal.

BASIS FOR A PETITION FOR EMERGENCY EVALUATION (“EP”) An individual who signs a petition for emergency evaluation may base the petition on: § Examination or observation or § Other information obtained that is pertinent to the factors giving rise to the petition. A Peace Officer must base an EP on personal observation

CONTENTS OF AN EP § Description of the patient’s behavior and/or statements or any other information that led the petitioner to believe that the patient has a mental disorder and presents a danger to his/hers/others’ life or safety and § Any other facts that support the need for an emergency evaluation Health-General Article § 10 -622

WHO MAY COMPLETE AN EP �A peace officer who personally has observed the individual or the individual's behavior; or � An – – – – examining: Physician Psychologist Clinical social worker Licensed clinical professional counselor Clinical nurse specialist in psychiatric and mental health nursing Psychiatric nurse practitioner Health officer or designee of a health officer � Any other interested person, but a Court must approve the EP Health-General Article § 10 -622

COURT APPROVAL OF EP � District Court judges are available 24/7 to review emergency petitions � To approve an EP, the court must find probable cause to believe that the emergency evaluee has shown the symptoms of a mental disorder and that the individual presents a danger to the life or safety of the individual or of others � If the court does not find probable cause, it shall indicate that fact on the petition and no further action may be taken under the petition Health-General Article § 10 -623

COURT ORDERED EVALUATION OF ARRESTED INDIVIDUAL �A court may also order an emergency evaluation of an arrested individual upon a showing of probable cause that the individual has a mental disorder and that the individual presents a danger to the his/her/others life or safety �A court order under this section is a detainer against an individual until: ◦ The charges against the individual are dismissed, nol prossed, or stetted or ◦ The individual appears in court Health-General Article § 10 -626

PEACE OFFICER’S TRANSFER OF PATIENT TO EMERGENCY ROOM �A court-endorsed EP serves as a bench warrant that allows a peace officer to transport an evaluee to the nearest emergency facility �A peace officer cannot act on an endorsed EP that is more than 5 days old � 5 -day limitation only applies to a courtendorsed EP signed by a lay petitioner Health-General Article § 10 -624

WHAT HAPPENS AT THE EMERGENCY ROOM? � If the EP is executed properly, the emergency facility shall accept the patient � Within 6 hours of arriving at an emergency facility, a physician shall examine the patient to determine whether he/she meets the requirements for involuntary admission � An emergency evaluee may not be kept at an emergency facility for more than 30 hours Health-General Article § 10 -624

PROMPTLY AFTER THE PATIENT’S EXAMINATION, HE/SHE SHALL BE RELEASED UNLESS : § The Patient agrees to a voluntary admission (and is sufficiently competent to do so) or Physician certificates have been signed and proper notice of status/rights has been provided to the patient

VOLUNTARY ADMISSION � Patient may sign voluntary admission agreement � Patient must be able to understand the nature of the request for voluntary admission � If the hospital refuses to accept the patient as a voluntary admission, ALJ may decide whether patient is willing and able � If ALJ finds patient is willing and able and hospital still refuses to accept voluntary, ALJ must release patient because hospital has not proven the involuntary admission requirement � Hospitals generally accept the voluntary agreement upon ALJ’s findings � ALJ cannot force hospital to accept voluntary Health-General Article § 10 -609

PHYSICIANS’ CERTIFICATES � Two physicians or one physician and one psychologist must certify the patient for involuntary admission � Certificates must be based on personal examination � The examination may not be done more than one week before the certificate is signed or more than 30 days before the inpatient facility receives the application for admission Health-General Article § 10 -616; COMAR 10. 21. 04

CERTIFYING NOTE One certificate must be accompanied by a note that details why the patient meets the requirements for involuntary admission COMAR 10. 21. 04 C(4)

NOTICE OF RIGHTS/STATUS Within 12 hours after initial confinement, each patient must be given and read (in a language understood by the Patient) a notice, including the following information: � Notice of the confinement of the individual � The right to consult with a lawyer that the individual chooses � The availability of the legal aid bureaus, lawyer referral services, and lawyer referral agencies � The right of the individual to call or write a lawyer or a referral agency � The relevant law Health-General Article § 10 -631; COMAR 10. 21. 05

IF THE PATIENT DOES NOT UNDERSTAND THE NOTICE OF RIGHTS/STATUS, THE FACILITY SHALL GIVE THE NOTICE TO: § the parent or guardian § the next of kin of the individual § the applicant for an involuntary admission of the individual and § and any other individual who has a significant interest in the status of the individual Health-General Article § 10 -631(b)(2)

NOTICE OF HEARING Staff at an inpatient facility shall give oral and written notice of the scheduled hearing to the patient and the patient’s parent, guardian, or next of kin, containing the following: ◦ The date, time, and place that the hearing will be held ◦ The legal authority for and purpose of the hearing ◦ A short statement explaining why the individual's involuntary admission is being sought ◦ The standards that govern whether the patient shall be involuntarily admitted ◦ The patient’s right to consult with an attorney and the availability of representation at the hearing by a public defender and ◦ A list of the individual's rights at a hearing COMAR 10. 21. 06

SEMIANNUAL HEARING �After a patient is involuntarily committed, he/she is entitled to a subsequent hearing within 150 to 180 days, and �After that hearing, he/she is entitled to a semiannual hearing COMAR 10. 21. 08 C

SEMIANNUAL PROCEDURES At least 7 days before a semiannual hearing: § Two physicians or one physician and one psychologist shall complete new certificates § The Patient shall be given notice of rights/hearing § If the patient is 65 years or older and is in a State or VA hospital, GES approval must be obtained if it has not been obtained during that hospitalization COMAR 10. 21. 08 C

NOT CRIMINALLY RESPONSIBLE (“NCR”) HEARINGS Criminal Procedure Article § 3 -101 to 3 -123 No regulations

NCR HEARINGS ARE ONLY AT STATE HOSPITALS � Spring Grove Hospital Center, Catonsville � Springfield � Walter Hospital Center, Sykesville P. Carter Center, Baltimore City � Timothy � Eastern B. Finan Center, Cumberland Shore Hospital Center, Easton � Upper Shore Community Mental Health Center, Chestertown � Clifton T. Perkins Hospital Center, Jessup

A COMMITTED PERSON MAY REQUEST A JURY TRIAL RATHER THAN A RELEASE HEARING BEFORE OAH Criminal Procedure Article § 3 -119(c)(3)

COMMITTMENT � After a verdict of not criminally responsible, the court immediately shall commit the defendant to DHMH for institutional inpatient care or treatment � If the court commits a defendant who was found not criminally responsible, primarily because of intellectual disability, DHMH shall designate a facility for individuals with intellectual disabilities for care and treatment of the committed person Criminal Procedure Article § 3 -112

UNDER CERTAIN CIRCUMSTANCES, A COURT MAY ORDER THAT A PERSON BE RELEASED AFTER A VERDICT OF NOT CRIMINALLY RESPONSIBLE, WITH OR WITHOUT CONDITIONS, INSTEAD OF BEING COMMITTED TO DHMH See Criminal Procedure Article § 3 -312(c)

TIMING OF APPLICATION FOR RELEASE BY PATIENT � Not earlier than 1 year after the initial release hearing ends or was waived and not more than once a year thereafter OR � At any time if the application is accompanied by an affidavit of a physician or licensed psychologist that attests to an improvement in the mental condition of the committed person since the last hearing Criminal Procedure Article § 3 -119

STANDARD FOR RELEASE § A committed person is eligible for discharge from commitment only if that person would not be a danger, as a result of a mental disorder or intellectual disability, to self or to the person or property of others if discharged or if conditionally released from confinement § To be released, a committed person has the burden to establish, by a preponderance of the evidence, his/her eligibility for discharge or for conditional release. Criminal Procedure Article § 3 -114

TIMELINE FOR INITIAL NCR RELEASE HEARING Within 50 days after commitment to DHMH following an NCR finding: § ALJ shall hold a hearing to determine whether to recommend to the court that the patient is eligible for conditional release or discharge § ALJ may postpone the hearing for good cause § The committed person may waive the release hearing Criminal Procedure Article § 3 -115

NCR RELEASE HEARING � ALJ may admit and consider any relevant evidence, as the formal rules of evidence do not apply � DHMH (through the hospital’s/State’s representative) shall present the evaluation report on the committed person and any other relevant evidence � The patient has a right to be present; to offer evidence and to cross-examine adverse witnesses � The Patient has a right to be represented by counsel, including, if the committed person is indigent, the Public Defender or a designee of the Public Defender Criminal Procedure Article § 3 -115

ALJ’S REPORT AND RECOMMENDATION Within 10 days after the hearing ends, the ALJ shall prepare a report of recommendations to the court that contains: § a summary of the evidence presented at the hearing § recommendations as to whether the committed person proved, by a preponderance of the evidence, eligibility for conditional release or eligibility for discharge and § if the ALJ determines that the committed person proved eligibility for conditional release, the recommended conditions of the release (giving consideration to any specific conditions recommended by the DHMH facility that has charge of the committed person, or counsel for the committed person) Criminal Procedure Article § 3 -116

COURT’S DECISION Within 30 days after the court receives the report and recommendation from OAH, the Court may § on its own initiative hold a hearing § if timely exceptions are filed or if the court requires more information, hold a hearing (unless the committed person and the State's Attorney waive the hearing) § The court’s hearing is on the record that was made before the ALJ § The court may continue its hearing and remand to OAH to take additional evidence Criminal Procedure Article § 3 -117 Note: While our decisions are usually timely, Courts frequently take much more than 30 days to rule, so do not promise Patients a final decision by a set date

ALLEGATIONS OF VIOLATION OF CONDITIONAL RELEASE � State's Attorney shall determine whethere is a factual basis for allegations � If the State's Attorney determines that there is a factual basis to believe that the committed person has violated any of the terms of a conditional release and believes further action by the court is necessary, the State's Attorney promptly shall: ◦ notify DHMH and ◦ file with the court a petition for revocation or modification of conditional release Criminal Procedure Article § 3 -121