Families in New Jersey coping with a loved one suffering from mental illness may feel helpless when their family member resists assistance and poses a danger to themselves and others.
The purpose of this memo is to outline three processes through which the patient may be admitted to an in-patient facility for ongoing psychiatric care. First, the patient may be involuntarily committed; second, the patient can be committed voluntarily; or, third, a guardian could be appointed. Because the threshold for involuntary commitment is high , courts are hesitant to commit people and doctors are hesitant to keep people institutionalized. Indeed, as soon as a patient is no longer a danger, they are typically converted to voluntary status. Thus, while involuntary commitment may be a useful tool for coping with mental illness on an emergent or short term basis, in most cases it is not a realistic solution for long-term treatment. Instead, this memo concludes that voluntary commitment is the ideal premise upon which to seek treatment, however since the patient may be resistant to ongoing treatment, the appointment of a guardian may be necessary to insure the patient gets the care he or she requires.
There are two ways in which an action for involuntary commitment can be brought. An action for commitment can be commenced either through a screening service referral or upon independent application for a temporary court order (the “alternate method”).
Screening Service Referral
In order to commence an action through a screening service, the patient would have to be involuntarily admitted to a short-term care facility, a psychiatric facility, or a special psychiatric hospital on some grounds. In Bergen County, as an example, a public agency called Care Plus, which is also known by its phone number, 262-HELP, provides on-site screening services. Upon a phone call by a family member or other concerned party, the agency will send a screener accompanied by a police officer to the patient’s location. The screener, taking into account the concerns of the family and the patient’s history would ask questions which would assist the screener in determining whether probable cause exists that the patient is a danger to himself, others or property. If such a diagnosis is made, the patient would be taken to Bergen Regional Medical Center (“Bergen Regional”), where a psychiatrist would confer with the screener and perform a screening within 72 hours.
Based on the initial screening, a hearing takes place at Bergen Regional where a judge may order further commitment. If the judge finds that a basis exists for further commitment, that commitment may be conducted at Bergen Regional or the family can request a transfer to a properly licensed private facility such as Ramapo Ridge. Once involuntarily committed, the patient would be periodically screened. The order of commitment would provide for periodic reviews of the commitment no later than at three, nine and twelve months from the date of the first hearing, and at least annually thereafter, if the patient is not sooner discharged. The court may schedule additional review hearings but, except in extraordinary circumstances, not more than once every 30 days.
The Alternate Method
If the screening service procedure is not employed, proceedings for involuntary commitment may be initiated by filing an application supported by two clinical certificates, at least one of which is prepared by a psychiatrist, stating that the person is in need of involuntary commitment. The originals shall be filed with the court and copies with the office of the county adjuster. Because the proceedings in this case would be instituted by independent application, no involuntary commitment will be imposed until the court enters a temporary commitment order. This method is seldom used because a psychiatrist or physician providing a clinical certificate may not be able to evaluate the patient since the patient may be resistant. Additionally, when a patient is admitted to a hospital for screening, the patient is generally medically pre-screened. This pre-screening allows the psychiatrist or physician screening the patient to rule out the possibility that the symptoms manifested by the patient are not drug-related or the result of physical illness.
As with the screening service referral method of commitment, the clinical certificates must state with particularity the facts upon which the psychiatrist, physician or mental health screener relies in concluding that (1) the patient is mentally ill, (2) that mental illness causes the patient to be dangerous to self or others or property as defined by N.J.S.A. 30:4–27.2h and-.2i, and (3) appropriate facilities or services are not otherwise available. The court may enter an order of temporary commitment authorizing the admission to a facility pending final hearing if it finds probable cause to believe that the person is in need of involuntary commitment based on the certificates filed. Because the patient is due significant constitutional protection under New Jersey law, the order of temporary commitment must include the following terms:
1. A place and day certain for the commitment hearing, which must be within 20 days after the initial in-patient admission to the facility.
2. Assignment of counsel to present the case for involuntary commitment as required by statute.
3. Assignment of counsel to represent an unrepresented patient.
4. Notice shall be served not less than 10 days prior to the date of the hearing on the patient, patient’s counsel, the patient’s guardian or guardian ad litem, the nearest relatives of the patient, county counsel and county adjuster, with a copy of the temporary court order, a statement of the patient’s rights at the hearing and the screening or clinical certificates and supporting documents.
Whether the screening method or alternate method is pursued, the court could also order testing or examination of the patient by an independent psychiatrist, psychologist or other expert. Any hearing for the patient’s commitment would be closed and any court holdings would be redacted to preserve the patient’s privacy. The application for commitment must be supported by the oral testimony of a psychiatrist on the patient’s treatment team who has conducted a personal examination of the patient as close to the court hearing date as possible, but in no event more than five calendar days prior to the court hearing. Other members of the patient’s treatment team may also testify at the hearing, as may the patient’s next-of-kin if the court so determines. The patient shall have the right to appear at the hearing, but may be excused from the courtroom during all or any portion if the court determines that because of the patient’s conduct at the hearing it cannot reasonably continue while the patient is present. In no case shall the patient appear without the aid of counsel. The costs of such a proceeding, the examination and the expert’s fee for testifying, if any, are borne by the person or public body charged with the patient’s legal settlement.
Voluntary commitment pursuant to N.J.S.A. 4:74-7(g) arises in one of two circumstances. First, a patient may be brought to a short-term care facility, a psychiatric facility, or a special psychiatric hospital for a screening. If the result of that screening is that the patient does not meet the standard imposed by N.J.S.A. § 30:4-27.1 for involuntary commitment, in that he is not mentally-ill, a danger to himself, others or property, and his condition cannot be better handled on an out-patient basis, then he will be admitted on a “voluntary” basis. Secondly, a patient could be involuntarily committed and, upon a subsequent screening, be converted to voluntary commitment if it is decided that he is no longer a danger to himself, others or property.
In either instance, if a voluntary patient requests discharge, the facility must discharge the patient as soon as possible but in every case within 48 hours or the end of the next working day from the request, whichever is longer. However, if the treatment team determines that the patient needs involuntary commitment, they can initiate proceedings for commitment under the screening service method described above. No patient may be detained more than the 48 hour period unless the court issues a temporary order of commitment.
The benefit of voluntary commitment is that it allows treatment staff an additional opportunity within 48 hours to conduct another screening after the patient’s request for release. At that time if the patient is found to be a danger to himself, others or property, he may be involuntarily committed.
Under N.J.S.A. 3B:12-56, a court may order that a guardian of the person of
the ward (“guardian”) be designated for an individual who meets the criteria of an incapacitated person. The guardian may initiate the voluntary admission of the ward to a state psychiatric facility or a private psychiatric facility. The ward in such circumstances is entitled to all of the rights of a voluntarily admitted patient discussed above, however those rights are exercised on behalf of the ward by the guardian. The guardian of the ward must exercise the ward’s rights in a manner consistent with the ward’s wishes except in instances where compliance with the ward’s wishes would create a significant risk to the health or safety of the ward. If the wishes of the ward are not ascertainable with reasonable efforts, the guardian of the ward shall exercise the ward’s rights in a manner consistent with the best interests of the ward.
If the ward objects to the initiation of voluntary admission for psychiatric treatment or to the continuation of that voluntary admission, the procedures for involuntary commitment apply. If the ward objects to any other decision of the guardian he may bring this objection to the attention of the Superior Court, Chancery Division, Probate Part, which may, in its discretion, appoint an attorney or guardian ad litem for the ward, hold a hearing or enter such orders as may be appropriate in the circumstances.
If the patient appears to be a danger to himself, others or property, 262-HELP
should be called and the patient will be screened. If the screener determines that the patient meets the criteria, he will be involuntarily committed. This involuntary commitment may be initially conducted at Bergen Regional, or the patient could be transferred to another facility. During this time, a petition could be filed with the court seeking the designation of a guardian who could continue to keep the patient voluntarily committed until such time as the guardian deems necessary for the patient’s welfare.
On Aug. 11, 2009, then-Governor Corzine signed into law the Involuntary Commitment to Outpatient Treatment Law (“ICOTL”), offering hope for mental health patients and their families that another option would be realized. However, ICOTL has not yet been implemented and the law was tabled due to budget constraints.