§ 402 — Commitment of incarcerated individuals with a mental illness

§ 402. Commitment of incarcerated individuals with a mental illness.\n1. Whenever the physician of any correctional facility, any county\npenitentiary, county jail or workhouse, any reformatory for women, or of\nany other correctional institution, shall report in writing to the\nsuperintendent that any person undergoing a sentence of imprisonment or\nadjudicated to be a youthful offender or juvenile delinquent confined\ntherein has, in his or her opinion, a mental illness, such\nsuperintendent shall apply to a judge of the county court or justice of\nthe supreme court in the county to cause an examination to be made of\nsuch person by two examining physicians. Such physicians shall be\ndesignated by the judge to whom the application is made. Each such\nphysician, if satisfied, after a personal examination, that such\nincarcerated individual has a mental illness and in need of care and\ntreatment, shall make a certificate to such effect. Before making such\ncertificate, however, he or she shall consider alternative forms of care\nand treatment available during confinement in such correctional\nfacility, penitentiary, jail, reformatory or correctional institution\nthat might be adequate to provide for such incarcerated individual's\nneeds without requiring hospitalization. If the examining physician\nknows that the person he or she is examining has been under prior\ntreatment, he or she shall, insofar as possible, consult with the\nphysician or psychologist furnishing such prior treatment prior to\nmaking his or her certificate.\n 2. In the city of New York, if the physician of a workhouse, city\nprison, jail, penitentiary or reformatory reports in writing to the\nsuperintendent of such institution that a prisoner confined therein,\nserving a sentence of imprisonment, in his or her opinion has a mental\nillness, the superintendent of said institution shall either transfer\nsaid prisoner to Bellevue or Kings county hospital for observation as to\nhis or her mental condition by two examining physicians or shall secure\ntwo examining physicians to make such examination in his institution.\nEach such physician, if satisfied after a personal examination and\nobservation that the prisoner has a mental illness and in need of care\nand treatment, shall make a certificate to such effect. Before making\nsuch certificate, however, he or she shall consider alternative forms of\ncare and treatment available during confinement in such correctional\nfacility, penitentiary, jail, reformatory or correctional institution\nthat might be adequate to provide for such incarcerated individual's\nneeds without requiring hospitalization. If the examining physician\nknows that the person he or she is examining has been under prior\ntreatment, he or she shall, insofar as possible, consult with the\nphysician or psychologist furnishing such prior treatment prior to\nmaking his or her certificate.\n 3. Upon such certificates of the examining physicians being so made,\nit shall be delivered to the superintendent who shall thereupon apply by\npetition forthwith to a judge of the county court or justice of the\nsupreme court in the county, annexing such certificate to his or her\npetition, for an order committing such incarcerated individual to a\nhospital for persons with a mental illness. Upon every such application\nfor such an order of commitment, notice thereof in writing, of at least\nfive days, together with a copy of the petition, shall be served\npersonally upon the alleged person with a mental illness, and in\naddition thereto such notice and a copy of the petition shall be served\nupon either the wife, the husband, the father or mother or other nearest\nrelative of such alleged person with a mental illness, if there be any\nsuch known relative within the state; and if not, such notice shall be\nserved upon any known friend of such alleged person with a mental\nillness within the state. If there be no such known relative or friend\nwithin the state, the giving of such notice shall be dispensed with, but\nin such case the petition for the commitment shall recite the reasons\nwhy service of such notice on a relative or friend of the alleged person\nwith a mental illness was dispensed with and, in such case, the order\nfor commitment shall recite why service of such a notice on a relative\nor friend of the alleged person with a mental illness was dispensed\nwith. Copies of the notice, the petition and the certificates of the\nexamining physicians shall also be given the mental hygiene legal\nservice. The mental hygiene legal service shall inform the incarcerated\nindividual and, in proper cases, others interested in the incarcerated\nindividual's welfare, of the procedures for placement in a hospital and\nof the incarcerated individual's right to have a hearing, to have\njudicial review with a right to a jury trial, to be represented by\ncounsel and to seek an independent medical opinion. The mental hygiene\nlegal service shall have personal access to such incarcerated individual\nfor such purposes.\n 4. The judge to whom such application for the commitment of the\nalleged person with a mental illness is made may, if no demand is made\nfor a hearing on behalf of the alleged person with a mental illness,\nproceed forthwith on the return day of such notice to determine the\nquestion of mental illness and, if satisfied that the alleged person\nwith a mental illness has a mental illness and in need of care and\ntreatment, may immediately issue an order for the commitment of such\nalleged person with a mental illness to a hospital for a period not to\nexceed six months from the date of the order.\n 5. Upon the demand for a hearing by any relative or near friend on\nbehalf of such alleged person with a mental illness, the judge shall, or\nhe may upon his own motion where there is no demand for a hearing, issue\nan order directing the hearing of such application before him at a time\nnot more than five days from the date of such order, which shall be\nserved upon the parties interested in the application and upon such\nother persons as the judge, in his discretion, may name. Upon such day\nor upon such other day to which the proceedings shall be regularly\nadjourned, he shall hear the testimony introduced by the parties and\nshall examine the alleged person with a mental illness, if deemed\nadvisable in or out of court, and render a decision in writing as to\nsuch person's mental illness and need for care and treatment. If such\njudge cannot hear the application, he may, in his order directing the\nhearing, name some referee who shall hear the testimony and report the\nsame forthwith, with his opinion thereon, to such judge, who shall, if\nsatisfied with such report, render his decision accordingly. If it be\ndetermined that such person has a mental illness and in need of care and\ntreatment, the judge shall forthwith issue his order committing him to a\nhospital for a period not to exceed six months from the date of the\norder. Such superintendent shall thereupon cause such person with a\nmental illness to be delivered to the director of the appropriate\nhospital as designated by the commissioner of mental hygiene and such\nperson with a mental illness shall be received into such hospital and\nretained there until he is determined to be no longer in need of care\nand treatment by the director of such hospital or legally discharged or\nfor the period specified in the order of commitment or in any subsequent\norder authorizing continued retention of such person in said hospital.\nSuch superintendent, before delivering said person with a mental\nillness, shall see that he is bodily clean. If such judge shall refuse\nto issue an order of commitment, he shall certify in writing his reasons\nfor such refusal.\n 6. When an order of commitment is made, such order and all papers in\nthe proceeding shall be presented to the director of the appropriate\nhospital at the time when the person with a mental illness is delivered\nto such institution and a copy of the order and of each such paper shall\nbe filed with the department of mental hygiene and also in the office of\nthe county clerk of the county wherein the court is located which made\nthe order of commitment. The judge shall order all such papers so filed\nin the county clerk's office to be sealed and exhibited only to parties\nto the proceedings, or someone properly interested, upon order of the\ncourt.\n 7. The costs necessarily incurred in determining the question of\nmental illness, including the fees of the medical examiners, shall be a\ncharge upon the state or the municipality, as the case may be, at whose\nexpense the institution is maintained, which has custody of the alleged\nperson with a mental illness at the time of the application for his\ncommitment to the hospital under the provisions of this section.\n 8. During the pendency of such proceeding the judge may forthwith\ncommit such alleged person with a mental illness to a hospital for\npersons with a mental illness upon petition and the affidavit of two\nexamining physicians that the superintendent is not able to properly\ncare for such person at the institution where he is confined and that\nsuch person is in immediate need of care and treatment. Any person so\ncommitted shall be delivered to the director of the appropriate hospital\nas designated in the rules and regulations of the department of mental\nhygiene.\n 9. Except as provided in subdivision two of this section pertaining to\nprisoners confined in the city of New York, an incarcerated individual\nof a correctional facility or a county jail may be admitted on an\nemergency basis to the Central New York Psychiatric Center upon the\ncertification by two examining physicians, including physicians employed\nby the office of mental health and associated with the correctional\nfacility in which such incarcerated individual is confined, that the\nincarcerated individual suffers from a mental illness which is likely to\nresult in serious harm to himself, herself or others as defined in\nsubdivision (a) of section 9.39 of the mental hygiene law. Any person so\ncommitted shall be delivered by the superintendent within a twenty-four\nhour period, to the director of the appropriate hospital as designated\nin the rules and regulations of the office of mental health. Upon\ndelivery of such person to a hospital operated by the office of mental\nhealth, a proceeding under this section shall immediately be commenced.\n 10. If the director of a hospital for persons with a mental illness\nshall deem that the condition of such person with a mental illness\nrequires his further retention in a hospital he shall, during the period\nof retention authorized by the last order of the court, apply to the\nsupreme court or county court in the county where such hospital is\nlocated, for an order authorizing continued retention of such person\nwith a mental illness. The procedures for obtaining any order pursuant\nto this subdivision shall be in accordance with the provisions of the\nmental hygiene law for the retention of involuntary patients.\n 11. If a person with a mental illness whose commitment, retention or\ncontinued retention has been authorized pursuant to this section, or any\nrelative or friend in his behalf, be dissatisfied with any such order,\nhe may, within thirty days after the making of any such order, obtain a\nrehearing and a review of the proceedings already had and of such order,\nupon a petition to a justice of the supreme court other than the judge\nor justice presiding over the court making such order. Such justice\nshall cause a jury to be summoned and shall try the question of the\nmental illness and the need for care and treatment of the person so\ncommitted or so authorized to be retained. Any such person with a mental\nillness or the person applying on his behalf for such review may waive\nthe trial of the fact by a jury and consent in writing to trial of such\nfact by the court. No such petition for the hearing and review shall be\nmade by anyone other than the person so committed or authorized to be\nretained or the father, mother, husband, wife or child of such person,\nunless the petitioner shall have first obtained the leave of the court\nupon good cause shown. If the verdict of the jury, or the decision of\nthe court when jury trial has been waived, be that such person does not\nhave a mental illness, the justice shall order the removal of such\nperson from the hospital and such person shall forthwith be transferred\nto a state correctional facility, or returned to the superintendent of\nthe institution from which he was received if such institution was not a\nstate correctional facility. Where the verdict of the jury, or the\ndecision of the court where a jury trial has been waived, be that such\nperson has a mental illness, the justice shall certify that fact and\nmake an order authorizing continued retention under the original order.\nProceedings under the order shall not be stayed pending an appeal\ntherefrom, except upon an order of a justice of the supreme court, and\nmade upon notice and after hearing, with provision made therein for such\ntemporary care and confinement of the alleged person with a mental\nillness as may be deemed necessary.\n 12. The notice provided for herein shall be served by the sheriff of\nthe counties of the state of New York, in which case the charges of such\nsheriff shall be a disbursement in such proceeding, or by registered\nmail on all persons required to be served, except that the\nsuperintendent of a correctional facility or the director of a hospital\nfor persons with a mental illness, or their designees, shall be\nauthorized to personally serve notice upon an alleged person with a\nmental illness or a person with a mental illness, as provided in this\nsection.\n 13. Notwithstanding any provision of law to the contrary, when an\nincarcerated individual is being examined in anticipation of his or her\nconditional release, release to parole supervision, or when his or her\nsentence to a term of imprisonment expires, the provisions of\nsubdivision one of section four hundred four of this article shall be\napplicable and such commitment shall be effectuated in accordance with\nthe provisions of article nine or ten of the mental hygiene law, as\nappropriate.\n