§ 43A-5-401 — Repealed

Oklahoma § 43A-5-401

• Jurisdiction: Oklahoma
• Title 43A: Mental Health

Text

Repealed by Laws 1997, c. 387, § 11, eff. Nov. 1, 1997. NOTE: Subsequent to repeal, § 5-401 was amended by Laws 1997, c. 195, § 3 to read as follows: A. The father, mother, husband, wife, brother, sister, guardian or child, over the age of eighteen (18) years, of a person alleged to be a person requiring treatment, or the parent, father, mother, guardian or person having custody of a minor child, a physician or person in charge of any facility or correctional institution, or any peace officer within the county in which the person alleged to be a person requiring treatment resides or may be found or the district attorney in whose district the person requiring treatment resides or may be found, may petition the district court, upon which is hereby conferred jurisdiction, to determine whether the person is a person requiring treatment and to order the least restrictive appropriate treatment for that person. The petition shall contain a statement of the facts upon which the allegation is based and, if known, the names and addresses of any witnesses to the alleged facts. The petition shall be verified and made under penalty of perjury. B. Upon the filing of a petition, the district court shall determine, based upon clear and convincing evidence, whether there is probable cause to detain the person requiring treatment prior to a hearing on the petition. If the court finds that probable cause does exist, an order may be entered authorizing any peace officer to take that person into custody and to detain such person in a suitable facility prior to the hearing on the petition; provided that such period of temporary detention shall not exceed seventy-two (72) hours, excluding days when the district court is not in session. Such detention shall be extended to coincide with any order of continuance entered by the court at the first hearing. A certified copy of the order of continuance shall constitute authority for the facility to continue to detain the subject individual during the period of continuance. C. Upon receiving the petition, the court shall fix a day for the hearing thereof and shall forthwith appoint an attorney and an examining commission. A copy of the petition and notice as hereinafter described shall be served personally at least one (1) day before the examining commission is scheduled to hold its proceedings, and as many additional days as are requested by the person alleged to be a person requiring treatment or the person's attorney as are reasonable without prejudice to the person. Any request for additional days shall be subject to the discretion of the court, considering the facts and circumstances of each particular case, including cost. The notice shall contain the following information: 1. The definition provided by the Mental Health Law of a mentally ill person and a person requiring treatment; 2. A statement that the court has appointed an examining commission composed of two qualified examiners to examine the mental condition of the person allegedly requiring treatment and execute a certificate of their findings; 3. The time and place of any examination to be conducted by the examining commission, and the hearing on the petition; 4. A statement that, upon request, the hearing on the petition may be conducted as a jury trial and the jury shall be composed of six persons having the qualifications required of jurors in courts of record; 5. A statement that the petitioner and witnesses identified in the petition may offer testimony under oath at the hearing on the petition; 6. A statement that the court has appointed an attorney for the person alleged to be a person requiring treatment who shall represent the person until final disposition of the case; 7. A statement that if the person alleged to be a person requiring treatment is indigent, the court shall pay the attorney fees; 8. A statement that if the person is found at the hearing or at a jury trial to be mentally ill and a person requiring treatment under this act, that the court will take evidence and make findings of fact concerning the person's competency to consent or to refuse the treatment that is ordered, including, but not limited to, the patient's right to refuse psychotropic medications; and 9. A statement that the person alleged to be a person requiring treatment shall be afforded such other rights as are guaranteed by state and federal law and that such rights include a trial by jury, if demanded. The notice shall be served upon the person alleged to be a person requiring treatment, the person's father, mother, husband, wife or guardian or, in their absence, someone of the next of kin, of legal age, if any such persons are known to be residing within the county, and upon such person's relatives residing outside of the county, as may be ordered by the court, and also upon the person with whom the person alleged to be a person requiring treatment may reside, or at whose house the person may be. The person making such service shall make affidavit of the same and file such notice, with proof of service, with the district court. This notice may be served in any part of the state when so ordered by the court. D. 1. The attorney appointed by the court shall be a licensed and actively practicing attorney who shall represent the person alleged to be a person requiring treatment until final disposition of the case. The court may appoint a public defender where available. The attorney shall meet and consult with the person within one (1) day of notification of his appointment. The attorney shall immediately, upon meeting with the person alleged to be a person requiring treatment, present to such person a statement of the person's rights, including all rights afforded to the person by the Oklahoma and United States Constitutions. The attorney shall be required to notify the court of any current and unrevoked advance directive that has been executed by the person alleged to be a person requiring treatment pursuant to the Advance Directives for Mental Health Treatment Act and to provide a written copy of the advance directive to the court and a representative of the district attorney's office, if available. 2. The court-appointed attorney shall be replaced by another attorney if: a. the person alleged to be a person requiring treatment prefers the services of an attorney other than the one initially appointed for him, b. the preferred attorney agrees to accept the responsibility, and c. the person alleged to be a person requiring treatment or the attorney whom the person prefers notifies the court of the preference and the attorney's acceptance of employment. The preferred attorney shall meet and consult with the person alleged to be a person requiring treatment within one (1) day of the employment of the attorney. Any request for additional days shall be subject to the discretion of the court, considering the facts and circumstances of each particular case, including cost. E. The attorney fees for all services shall be paid by the person alleged to be a person requiring treatment. However, if the person alleged to be a person requiring treatment, or a person empowered pursuant to law to act on behalf of such person, submits an affidavit that such person is indigent, and unable to pay attorney fees, the attorney fees shall be paid from the court fund, after a determination by the court that such person is indigent. The amount of such fee shall be set by the court. F. The district court shall in each case appoint an examining commission composed of two qualified examiners, one of whom may be a licensed clinical psychologist. The qualified examiners shall make a careful personal examination and inquiry into the mental condition of the person alleged to be a person requiring treatment and execute a certificate of their findings. The examining commission appointed by the court shall have the right to conduct an examination of the mental condition of the person alleged to be a person requiring treatment, either prior to or at the time of the hearing on the petition. Any examination that is conducted prior to the hearing shall be on proper notice to the person and the appointed or selected attorney for the person. G. The examining commission forms shall be printed or written on eight and one-half inch by eleven inch (8 1/2" x 11") sheets of paper and shall be substantially as follows: EXAMINER'S CERTIFICATE We, the undersigned, together and in the presence of each other, have made a personal examination of _____, a person alleged to be a person requiring treatment, and do hereby certify that we did on the _________ day of _________________, 19__, make a careful personal examination of the actual condition of the said person and have interrogated ________________, the person seeking the commitment of ______________, and _________________, the witness(es) identified in the petition, and on such examination we find that she/he is/not a person requiring treatment. The facts and circumstances on which we base our opinions are stated in the following report of symptoms and history of case, which is hereby made a part hereof. We are duly licensed to practice in the State of Oklahoma, are not related to ___________________ by blood or marriage, and have no interest in her/his estate. Witness our hands this __________ day of ___________, 19__. ___________________, M.D., D.O., Ph.D., Other ___________________, M.D., D.O., Ph.D., Other Subscribed and sworn to before me this _______________________ day of ________________, 19__. __________________________________________ Notary Public REPORT OF SYMPTOMS AND HISTORY OF CASE BY EXAMINERS l. GENERAL Complete name _________________________________________________ Place of residence ____________________________________________ Sex _______________ Color _______________ Age _________________ Date of Birth _________________________________________________ Place of Birth ________________________________________________ Length of residency in Oklahoma _______________________________ Single, married, widowed, separated, divorced _________________ Number of children living _____________________________________ Number dead ___________________________________________________ Occupation ____________________________________________________ Date of last employment _______________________________________ Education _____________________________________________________ Religion ______________________________________________________ Name, relationship, address, and telephone number of correspondents: _____________________________________________ _______________________________________________________________ _______________________________________________________________ 2. HISTORY OF FAMILY Name of father ________________________________________________ Birthplace __________________________________________________ Maiden name of mother _________________________________________ Birthplace __________________________________________________ Name of spouse (or maiden name of wife) _______________ Birthplace __________________________________________________ General characteristics of family _____________________________ What relatives have had mental or nervous trouble? ____________ _______________________________________________________________ 3. HISTORY OF PATIENT PREVIOUS TO PRESENT ILLNESS Describe the general health, development, sickness and accidents prior to the present disorder _______________________________ Personality, school record, and social habits _________________ Previous attacks and hospitalization for mental health: _____________________________________________________ Place and date ________________________________________________ _______________________________________________________________ HISTORY OF PRESENT ILLNESS Supposed cause ________________________________________________ Date of onset and course ______________________________________ Abnormal talk _________________________________________________ Suicidal tendencies ___________________________________________ Abnormal conduct ______________________________________________ History of violence ___________________________________________ Special and unusual symptoms __________________________________ Use of alcohol ________________________________________________ Use of narcotics ______________________________________________ Diagnosis, if determined ______________________________________ Dangerous? Yes ______________ No _________________ If Yes, explain basis for opinion ___________________________________ State the least restrictive treatment which is appropriate to condition ___________________________________________________ State the least restrictive treatment which is available within the catchment area ___________________________________ Is the patient competent to refuse treatment that is ordered? ____________________________________________________ NAME AND RELATIONSHIPS OF INFORMANTS Other data ____________________________________________________ Dated at ______________, Oklahoma, this ___________day of ______________________, 19__ ______________, M.D., D.O., Ph.D., Other _______________________________________ Address ______________, M.D., D.O., Ph.D., Other _______________________________________ Address H. The members of the examining commission making an examination and certifying the condition of the person alleged to be a person requiring treatment shall, regardless of whether or not they find such person mentally ill, be entitled to receive for such services a reasonable sum set by the court, and twenty cents ($0.20) per mile for travel necessarily performed in going to the place of such examination and such further sum for expenses as the judge of the district court shall allow, such sums to be paid from the local court fund. Any private fees or funds received or recovered in connection with such hearing shall be deposited to the credit of the local court fund. I. The person alleged to be a person requiring treatment shall have the right to be present at the hearing on the petition or jury trial unless it is made to appear to the court that the presence of the person alleged to be a person requiring treatment makes it impossible to conduct the hearing or trial in a reasonable manner or that the presence of the person would be injurious to the health or well-being of the person. The court may not decide in advance of the hearing, solely on the basis of the certificate of the examining commission, that the person alleged to be a person requiring treatment should not be allowed nor required to appear. It shall be made to appear to the court based upon clear and convincing evidence that alternatives to exclusion were attempted before the court renders the removal for that purpose or determines that the appearance at such hearing would be improper and unsafe. J. The court, at the hearing on the petition, shall determine by clear and convincing evidence if the person is a person requiring treatment, and the court will take evidence and make findings of fact concerning the person's competency to consent to or refuse the treatment that may be ordered, including, but not limited to, the patient's right to refuse medication. If a jury trial is not demanded, the court may receive as evidence and act upon the affidavits and reports of the examining commission, without further evidence being presented. If the court deems it necessary, or if the person alleged to be a person requiring treatment shall so demand, the court shall schedule the hearing on the petition as a jury trial to be held within seventy-two (72) hours of the demand, excluding days when the court is not officially in session, or within as much additional time as is requested by the attorney of the person requiring treatment, upon good cause shown. K. At the hearing on the petition, when it is conducted as a jury trial, the petitioner and any witness in behalf of the petitioner shall be subject to cross-examination by the attorney for the person alleged to be a person requiring treatment. The person alleged to be a person requiring treatment may also be called as a witness and cross-examined. No statement, admission or confession made by the person alleged to be a person requiring treatment may be used for any purpose except for proceedings under this section. No such statement, admission or confession may be used against such person in any criminal action whether pending at the time the hearing is held or filed against such person at any later time directly or in any manner or form. L. If any person admitted under this section or any other provision of law is not found at the hearing on the petition to be a person requiring treatment after the person is admitted to a facility, the person shall be discharged immediately. M. If any person admitted under this section or any other provision of law is found at the hearing on the petition to be a person requiring treatment, such person shall be delivered to the custody of the Department of Mental Health and Substance Abuse Services for a placement that is suitable to the person's needs. N. The court shall make and keep records of all cases brought before it. No records of proceedings under the Mental Health Law shall be open to public inspection except by order of the court or to employees of the Department of Mental Health and Substance Abuse Services, the person's attorney of record, or persons having a legitimate treatment interest. O. Bonded abstractors may be deemed to be persons having a legitimate interest for the purpose of having access to records regarding determinations of persons requiring treatment under this section.

Legislative History

Repealed by Laws 1997, c.