§ 11-10-4-3 — Involuntary transfers to division of mental health and addiction or to mental health facility

(a) A committed offender may be involuntarily
transferred to the division of mental health and addiction or to a mental
health facility only if:
(1) the offender has been examined by a psychiatrist employed or
retained by the department and the psychiatrist reports to the
department in writing that, in the psychiatrist's opinion, the
offender has a mental illness and is in need of care and treatment
by the division of mental health and addiction or in a mental
health facility;
(2) the director of mental health approves of the transfer if the
offender is to be transferred to the division of mental health and
addiction; and
(3) the department affords the offender a hearing to determine the
need for the transfer, which hearing must comply with the
following minimum standards:
(A) The offender shall be given at least ten (10) days advance
written and verbal notice of the date, time, and place of the
hearing and the reason for the contemplated transfer. This
notice must advise the offender of the rights enumerated in
clauses (C) and (D). Notice must also be given to one (1) of the
following:
(i) The offender's spouse.
(ii) The offender's parent.
(iii) The offender's attorney.
(iv) The offender's guardian.
(v) The offender's custodian.
(vi) The offender's relative.
(B) A copy of the psychiatrist's report must be given to the
offender not later than at the time notice of the hearing is given.
(C) The offender is entitled to appear in person, speak in the
offender's own behalf, call witnesses, present documentary
evidence, and confront and cross-examine witnesses.
(D) The offender is entitled to be represented by counsel or
other representative.
(E) The offender must be given a written statement of the
findings of fact, the evidence relied upon, and the reasons for
the action taken.
(F) A finding that the offender is in need of mental health care
and treatment in the division of mental health and addiction or
a mental health facility must be based upon clear and
convincing evidence.
(b) If the official in charge of the facility or program to which the
offender is assigned determines that emergency care and treatment in
the division of mental health and addiction or a mental health facility
is necessary to control a mentally ill offender who is either gravely
disabled or dangerous, that offender may be involuntarily transferred,
subject to the approval of the director of the division of mental health
and addiction, before holding the hearing described in subsection
(a)(3). However, this subsection does not deprive the offender of the
offender's right to a hearing.
(c) The official in charge of the division of mental health and
addiction or facility to which an offender is transferred under this
section must give the offender a semiannual written report, based on a
psychiatrist's examination, concerning the offender's mental condition
and the need for continued care and treatment in the division of mental
health and addiction or facility. If the report states that the offender is
still in need of care and treatment in the division of mental health and
addiction or a mental health facility, the division of mental health and
addiction or facility shall, upon request of the offender or a
representative in the offender's behalf, conduct a hearing to review the
need for that continued care and treatment. The hearing must comply
with the minimum standards established by subsection (a)(3). The
division of mental health and addiction or facility to which the offender
is transferred under this section may conduct a hearing under this
subsection upon its initiative.
(d) If the division of mental health and addiction or facility to which
an offender is transferred under this section determines that the
offender no longer needs care and treatment in the division of mental
health and addiction or facility, the division of mental health and
addiction or facility shall return the offender to the custody of the
department of correction, and the department of correction shall
reassign the offender to another facility or program.
(e) After an offender has been involuntarily transferred to and
accepted by the division of mental health and addiction, the department
shall transmit any information required by the office of judicial
administration for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3.
As added by Acts 1979, P.L.120, SEC.3. Amended by Acts
1980, P.L.87, SEC.2; P.L.2-1992, SEC.105; P.L.215-2001, SEC.20;
P.L.99-2007, SEC.39; P.L.110-2009, SEC.6; P.L.161-2018,
SEC.22.