Mental Health Law R.I. Gen. Laws section 40.1-5

Mental Health Law
R.I. Gen. Laws section 40.1-5
Jane Morgan, Esq.
Associate Director, OHHS
Heather Daglieri, Esq.
Administrator, Office of Licensure
I. History and Statutory Basis
II.Court-Ordered Outpatient
III.Competency and Informed
History & Statutory Basis
•Historical Context: Imagine the Pastore
Campus 50 years ago.
•1962, Rhode Island enacts the Community
Mental Health Centers Law
•On October 31, 1963 , President Kennedy
signed the Community Mental Health
Centers Act into law.
•1975 Rhode Island enacts the Mental
Health Law
• May the State confine the mentally ill merely to ensure them a living standard
superior to that they enjoy in the private community? That the State has a
proper interest in providing care and assistance to the unfortunate goes without
saying. But the mere presence of mental illness does not disqualify a person
from preferring his home to the comforts of an institution. Moreover, while the
State may arguably confine a person to save him from harm, incarceration is
rarely if ever a necessary condition for raising the living standards of those
capable of surviving safely in freedom, on their own or with the help of family or
friends. May the State fence in the harmless mentally ill solely to save its citizens
from exposure to those whose ways are different? One might as well ask if the
State, to avoid public unease, could incarcerate all who are physically
unattractive or socially eccentric. Mere public intolerance or animosity cannot
constitutionally justify the deprivation of a person's physical liberty. In short, a
State cannot constitutionally confine without more a nondangerous individual
who is capable of surviving safely in freedom by himself or with the help of
willing and responsible family members or friends. ...
O'Connor v. Donaldson, 422 US 563 (1975)
History & Statutory Basis
• O’Connor v. Donaldson 422 US 563
landmark decision in mental health law
• no constitutional basis for confining a
mentally ill patient involuntarily to an
institution if they are dangerous to no one
and can live safely in freedom.
History & Statutory Basis
• The Rhode Island Mental Health Law was
carefully crafted in order to guarantee that the
liberty of an individual patient would be
scrupulously protected. In Re Doe, 440 A.2d
• The statute provides due process to ensure that
a patient may not be forgotten or “warehoused”
when the need for supervised care, and
treatment no longer exist.
History & Statutory Basis
Mental Health Law covers the reception,
care and treatment of persons with mental
disabilities and provides the process by
which an individual diagnosed with a mental
disability can be detained in a “facility” and
have his/her disability assessed and/or
treated against his/her will.
History & Statutory Basis
•Civil process and subject to the due
process clause of the 14th Amendment.
Involuntary commitment severely infringes
on a person's right to be free from
governmental restraint and the right to not
be confined unnecessarily.
•Deprivation of a liberty interest for
treatment NOT punishment.
History & Statutory Basis
•Only Behavioral Healthcare Organizations
and Hospitals designated as “facilities” by
the State Mental Health Authority/BHDDH
can hold patients against their will:
•All of the CMHCs (including group homes
operated by the CMHCs); and
•ESH, Butler, Kent Unit, Bradley, Newport,
Roger Williams, Fatima, RI Hospital
(including a unit within Hasbro), Landmark.
RI Gen. Laws § 40.1-5-5
Mental Health/ Types of
Voluntary admissions § 40.1-5-6
* Presumption of competency; Guardians
and POAs cannot admit persons to “facilities”
* Intents to Leave (“ITLs”)
Involuntary admissions
Emergency Certification § 40.1-5-7
* Up to 10 days
Civil Court Certification § 40.1-5-8
* District Court (adults) or Family Court
Mental Health Court
•Mental Health Court is held every Friday at
either ESH or Butler Hospital and a District
Court Judge presides.
•Petitioner is represented by State Attorney
and Respondent is represented by OMHA.
•This is an adversarial proceeding that does
not involve “best interest” standards.
•Patient has a right to a hearing and to be
certified to the least restrictive environment.*
Mental Health Court
•Petitioner has to show by clear and
convincing evidence:
•patient has a mental disability,
•is in need of care and treatment,
•that there is a serious likelihood of harm to the
individual and/or others by reason of his/her
mental disability if unsupervised in the
community; and
•there are no less restrictive alternatives.
RIGL § 40.1-5-2 (7) Definitions
“likelihood of serious harm”
(i) A substantial risk of physical harm to the
person himself or herself as manifested by
behavior evidencing serious threats of, or
attempts at, suicide;
(ii) A substantial risk of physical harm to other
persons as manifested by behavior or threats
evidencing homicidal or other violent
behavior; or
(iii) A substantial risk of physical harm to the
mentally disabled person as manifested by
behavior which has created a grave, clear,
and present risk to his or her physical health
“likelihood of serious harm”
(iv) In determining whether there exists a
likelihood of serious harm the physician and
the court may consider previous acts,
diagnosis, words or thoughts of the patient. If
a patient has been incarcerated, or
institutionalized, or in a controlled
environment of any kind, the court may give
great weight to such prior acts, diagnosis,
words, or thoughts.
Court-Ordered Outpatient
Treatment (COOPT)
•Least restrictive environment with
supervised community treatment.
•In Re: RB allows for patients to be civilly
certified to involuntary treatment in the
•Used in some forensic cases to help with
discharge planning
•This is a lesser deprivation of liberty than that
of criminal court
•The Court must hear the same evidence as
with civil court certification.
•AND that there is an available less
restrictive alternative to inpatient treatment.
•group home
•community mental health center
•mobile treatment team supervision
•Mental health court supervision
•If non compliant can be re hospitalized
•6 month order which can be extended by
filing to recertify.
•COOPTs are used in forensic cases to
divert mentally ill person from the criminal
justice system and into outpatient mental
health treatment.
•Disposition is based on a number of factors
Seriousness of charge
Treatment needs
Psychiatric risk factors for violence
Non-psychiatric risk factors for violence
Towards the end of the 6 month COOPT the
BHDDH Legal Office will send a notice to the
provider informing them of the upcoming end
of the certification period and requesting
notice from the provider as to whether or not
they will recertify the patient.
If the decision is not to recertify the patient,
BHDDH will inquire as to why the treatment
team has reached such a decision.
Legal Standard for
Court can consider the patient’s compliance during
the previous 6 months under the COOPT.
Also consider the consequences of the patient’s
non compliance prior the COOPT.
The comparison in the reduction of hospitalization
and/or criminal involvement can be used as
evidence to certify
Effectiveness of COOPT
New York Office of Mental Health in 2005 and 2009
conducted studies of the impact of COOPT.
Specifically, the OMH study found that for those
receiving COOPT:
74 percent fewer experienced homelessness;
77 percent fewer experienced psychiatric
83 percent fewer experienced arrest; and
87 percent fewer experienced incarceration.
Effectiveness of COOPT
Comparing the experience of the COOPT patients
over the first six months of COOPT to the same
period immediately prior to the COOPT, the
OMH study found:
55 percent fewer recipients engaged in suicide
attempts or physical harm to self;
49 percent fewer abused alcohol;
48 percent fewer abused drugs;
47 percent fewer physically harmed others;
Effectiveness of COOPT
46 percent fewer damaged or destroyed
property; and
43 percent fewer threatened physical harm to
Effectiveness of COOPT
Another 2010 study tracked Medicaid claims and state
reports for 3,576 COOPT consumers from 1999-2007.
They found that:
the likelihood of psychiatric hospital admission
was significantly reduced by ~25% during the
initial six-month court order and by over 1/3
during a subsequent six-month renewal of the
order compared with the period before initiation
of the court order.
Swartz, MS et al (2010). "Assessing outcomes for consumers in
New York's assisted outpatient treatment program". Psychiatric
Services 61: 976-981. PMID 20889634
Competency and Informed Consent
• Case law began to shift focus from standards of
commitment to standards of treatment once
• involuntarily committed patients who have not been
found incompetent, barring an emergency, have the
right to refuse medication and have the right to least
restrictive treatment.
• Due process must be followed to forcibly medicate an
Competency and Informed
•What is fully informed consent ?
• Communicating a choice (usually, “no,”
which is the reason for the hearing)
• Understanding relevant information
• Manipulating information rationally
• Appreciating the situation and its
Competency and Informed
•If a person is competent they can refuse to take
medication even if they are certified under the
Mental Health Law.
•Mental Health Law specifically provides that a
person can not be presumed incompetent solely
because they are admitted and/or certified under
the Mental Health Law.
•Only courts have legal authority to order
involuntary treatment
•A person has a liberty interest in being free from the
administration of drugs
Petitions for Instructions
• To provide substituted consent for an
incompetent individual a Petition for Instructions
is usually filed with the Petition for Civil Court
Certification for inpatient treatment or COOPT.
However, PFIs may also be filed on voluntary
patients and Forensic patients.
• Equitable legal tool with no statutory basis.
• District Court Judge sits in equity on the bench
for the month assigned to Mental Health
• By practice, PFI Orders have a six (6) month
Petitions for Instructions
• Petition for Instructions can seek the Court’s
substituted consent for any invasive medical
procedure or medication:
•Lab work & imaging studies
•Urine toxicology
•ECT and surgery
Petitions for Instructions
•The Court must hear evidence proving:
• The person has a mental disability;
• the person is unable to give informed consent
by reason of his/her mental disability;
• the benefits of treatment outweigh the risks; &
• person does not have a legal representative.
•If a PFI is granted by the Court, treatment
occurs. If a PFI is denied by the Court, the
person can continue to make treatment
decisions, including refusing treatment.
Petition for Instructions
• The long-term clinical benefits of
coercive treatment
• Providing status updates to the court
• Upon discharge the Petition for
Instruction becomes part of the
treatment order to:
• the outside agency if accompanied with
•Extending the Petition for Instruction
• To the ACI
•Reducing likelihood of relapse

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