§ 508 — Removal of sick prisoners from jail

§ 508. Removal of sick prisoners from jail. 1. A sheriff, in his or\nher discretion, may by written order permit incarcerated individuals\nconfined in a local correctional facility to receive medical diagnosis\nand treatment in outside hospitals, upon the determination that such\noutside treatment and diagnosis is necessary by reason of inadequate\nfacilities within the local correctional facility. Such incarcerated\nindividuals shall remain under the jurisdiction and in the custody of\nsaid sheriff while in a hospital, other than a secure facility, as such\nterm is defined in paragraph b of subdivision two of this section, and\nsaid sheriff shall enforce proper measures in each case to safely\nmaintain such jurisdiction and custody.\n 2. a. If a physician to a jail or in case of a vacancy a physician\nacting as such and the warden or jailer certify in writing that a\nprisoner confined in a jail, either in a civil cause or upon a criminal\ncharge, is in such a state of mental health that he or she is in need of\ninvoluntary care and treatment and in their opinion should be removed to\na psychiatric hospital for treatment, the warden or jailer shall\nimmediately notify the director who shall have the responsibility for\nproviding treatment for such prisoner. If such director after\nexamination of the prisoner by an examining physician designated by him\nor her shall determine that such prisoner is in need of involuntary care\nand treatment, the director shall file an application for the\ninvoluntary hospitalization of such prisoner pursuant to article nine of\nthe mental hygiene law in a hospital or secure facility, as defined in\nparagraph b of this subdivision, operated by the office of mental health\nor in the case of a prisoner confined in a jail in a city or county\nwhich maintains or operates a general hospital containing a psychiatric\nprison ward approved by the office of mental health to such prison ward\nfor care and treatment or to any other psychiatric hospital if such\nprison ward is filled to capacity. Such application shall be supported\nby the certificate of two physicians in accordance with the requirements\nof section 9.27 of the mental hygiene law and thereupon such prisoner\nshall be admitted forthwith to the hospital or secure facility in which\nsuch application is filed, and the procedures of the mental hygiene law\ngoverning the hospitalization of such prisoner. The jailer or warden\nhaving custody of the prisoner shall deliver the prisoner to the\nhospital or secure facility with which the director has filed the\napplication. If such jailer or warden shall certify that such prisoner\nhas a mental illness which is likely to result in serious harm to\nhimself, herself or others and for which care in a psychiatric hospital\nis appropriate such jailer or warden shall effect the admission of such\nprisoner to a hospital or secure facility forthwith in accordance with\nthe provisions of section 9.37 or 9.39 of the mental hygiene law and the\nhospital shall admit such prisoner. Upon admission of the prisoner,\npursuant to section 9.37 or 9.39 of the mental hygiene law, the jailer\nor warden shall notify the director, the prisoner's attorney, and his or\nher family, where information about the family is available. While the\nprisoner is in the hospital, other than a secure facility, he or she\nshall remain in the custody under sufficient guard of the jailer or\nwarden in charge of the jail from which he or she came. When the\nprisoner is in a secure facility, the jailer or warden may transfer\ncustody of the incarcerated individual to the commissioner of mental\nhealth, pursuant to an agreement between such jailer or warden and such\ncommissioner. A prisoner admitted to a psychiatric hospital pursuant to\nsection 9.27, 9.37 or 9.39 of the mental hygiene law may be retained at\nthe hospital or secure facility pursuant to the provisions of the mental\nhygiene law until he or she has improved sufficiently in his or her\nmental illness so that hospitalization is no longer necessary or until\nordered by the court to be returned to the jail whichever comes first\nand in either event, the prisoner shall thereupon be returned to jail.\nThe cost of the care and treatment of such prisoners in the hospital or\nsecure facility shall be defrayed in accordance with the provisions of\nthe mental hygiene law in such cases provided.\n From the time of admission of a prisoner to a hospital under this\nsection the retention of such prisoner for care and treatment shall be\nsubject to the provisions for notice, hearing, review and judicial\napproval of continued retention or transfer and continued retention\nprovided by article nine of the mental hygiene law for the admission and\nretention of involuntary patients.\n b. As used in this section, the following terms shall have the\nfollowing meanings:\n (i) "Director" means (a) the director of a state hospital operated by\nthe department of mental hygiene, or (b) the director of a hospital\noperated by any local government of the state that has been certified by\nthe commissioner of mental hygiene as having adequate facilities to\ntreat a person with a mental illness or (c) the director of community\nmental health services or the designees of any of the foregoing. The\nappropriate director to whom a jailer or warden shall certify the need\nfor involuntary care and treatment and who shall have the responsibility\nfor such care and treatment shall be determined in accordance with rules\njointly adopted by the judicial conference and the commissioner of\nmental hygiene.\n (ii) "Mental illness" shall mean an affliction with a mental disease\nor mental condition which is manifested by a disorder or a disturbance\nin behavior, feeling, thinking, or judgement to such an extent that the\nperson afflicted requires care and treatment.\n (iii) "In need of involuntary care and treatment" shall mean that a\nperson has a mental illness for which care and treatment as a patient in\na hospital is essential to such person's welfare and whose judgement is\nso impaired that he is unable to understand the need for such care and\ntreatment.\n (iv) "Likelihood to result in serious harm" shall mean (1) substantial\nrisk of physical harm to himself as manifested by threats of or attempts\nat suicide or serious bodily harm or other conduct demonstrating that he\nis dangerous to himself or (2) a substantial risk of physical harm to\nother persons as manifested by homicidal or other violent behavior by\nwhich others are placed in reasonable fear or serious physical harm.\n (v) "Secure facility" shall mean a facility operated or licensed by\nthe office of mental health that has been approved and designated by the\ncommissioner of mental health to receive and retain prisoners pursuant\nto this section, based upon a determination by such commissioner that\nthe physical and internal security of the facility are sufficient to\nprotect the safety and security of staff and persons served by the\nfacility.\n c. If at any time the hospital in which a prisoner is hospitalized\npursuant to this subdivision determines that the prisoner is not in such\nstate of mental health to be in need of involuntary care and treatment\nthe prisoner shall be returned to the jail forthwith.\n d. If at any time the director of a hospital in which a prisoner is\nhospitalized pursuant to this subdivision has reason to believe that the\nprisoner may be an incapacitated defendant as defined in article seven\nhundred thirty of the criminal procedure law he shall so notify the\ncourt in which the criminal charges are pending and such court shall\nthereupon issue an examination order pursuant to the provisions of\narticle seven hundred thirty of the criminal procedure law.\n e. Nothing in this subdivision shall prevent the release of the\nprisoner from custody where appropriate by recognizance, bail, or\notherwise as the court may direct.\n