Equalizer Online | Spring 2006

Dear Dolly,

I am a social worker who works in a community mental health clinic. As I'm sure you know, there are times when a patient may require hospitalization due to his or her acute mental illness. A co-worker mentioned that there was a change made to the Mental Health and Developmental Disabilities Code that could impact the legal status of a person who is admitted to a mental health facility. If this is true, could you provide some detailed information about this? Thanks for your response. - Linette Dupree, LCSW, Chicago

Dear Ms. Dupree:

Yes, House Bill 3812 amended the Mental Health and Developmental Disabilities Code and became effective on January 1, 2006. The statute, 405 ILCS 5/3-801, Sec. 3-801, was amended with a key change. Previously, the statute stated that a person could request admission to a mental health facility as an informal or voluntary recipient at any time prior to an adjudication that he or she was subject to involuntary admission. Under the new statute, the facility director is required to approve a request for an informal or voluntary admission: 1) unless the director determines that the person lacks the capacity to consent to this type of admission, or 2) if the director determines that a voluntary admission is clinically inappropriate. In order to make the finding that a voluntary admission is clinically inappropriate, however, the facility director must identify a documented history of the person's illness and treatment showing that the person is unlikely to receive needed treatment following his or her release from an informal or voluntary admission. An order for alternative treatment or for care or custody will then be necessary to ensure continuity of treatment outside the mental health facility.

In addition, a newly written section, Sec. 3-801.5, identifies the necessary conditions for a court to agree to an order for alternative treatment or care and custody. It establishes that a person can enter into an agreement to be subject to an order for alternative treatment or care and custody at any time before the conclusion of a hearing if certain provisions are met. These are that: 1) the court and all parties have received a written report with recommendations for alternative treatment or care and custody and the court is satisfied that the recommendations are in the best interest of the person and the public; 2) the person is advised in open court of the conditions of the proposed order (recommendations) and the court is satisfied that the person understands and agrees to the conditions; 3) the proposed custodian is informed of the conditions and agrees to abide by the terms of the order; 4) this order may not require the person to be hospitalized, except if he or she fails to comply with the agreed conditions; and 5) an order may not include the administration of psychotropic medications as a condition unless there is documented history of the person's treatment and illness that shows that the person is unlikely to receive psychotropic medication in the absence of an order.

An agreed order of care and custody may also give the custodian the authority to admit the person to a hospital if the person fails to comply with the conditions of the order. In addition, if hospitalization is sought, the custodian may apply to the court for an order authorizing an officer of the peace to take the person into custody and transport him or her to the hospital. Once the person is admitted to the hospital, however, he or she must be treated as a voluntary recipient and must be immediately advised of the right to be discharged. If the court has appointed a legal adviser to the person, that appointment must continue for the duration of any order entered and the attorney must represent that person in any proceeding under these provisions.

This legislation may be found at the Illinois General Assembly website, by entering HB3812 in the search area. I hope you have found this information helpful.

Sincerely,

Dolly

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