§ 43A-5-416 — Alternatives to hospitalization.

A. The court, in considering a commitment petition filed under Section 5-410 of this title, shall not order hospitalization without a thorough consideration of available treatment alternatives to hospitalization, or without addressing the competency of the consumer to consent to or refuse the treatment that is ordered including, but not limited to, the rights of the consumer: 1. To be heard concerning the treatment of the consumer; and 2. To refuse medications. B. 1. If the court, in considering a commitment petition filed under Section 5-410 of this title, finds that a program other than hospitalization, including an assisted outpatient treatment program, is adequate to meet the treatment needs of the individual and is sufficient to prevent injury to the individual or to others, the court may order the individual to receive whatever treatment other than hospitalization is appropriate for a period set by the court; provided, the court may only order assisted outpatient treatment if the individual meets the criteria set forth in Section 1-103 of this title and in subsection F of this section. During this time the court: a. shall have continuing jurisdiction over the individual as a person requiring treatment or an assisted outpatient, and b. shall periodically, no less often than annually, review the treatment needs of the individual and determine whether or not to continue, discontinue, or modify the treatment. 2. If at any time it comes to the attention of the court from a person competent to file or request the filing of a petition, pursuant to subsection A of Section 5-410 of this title, that the individual ordered to undergo a program of alternative treatment to hospitalization is not complying with the order or that the alternative treatment program has not been sufficient to prevent harm or injury which the individual may be inflicting upon himself or others, the court may order the person to show cause why the court should not: a. implement other alternatives to hospitalization, modify or rescind the original order or direct the individual to undergo another program of alternative treatment, if necessary and appropriate, based on written findings of the court, or b. enter an order of admission pursuant to the provisions of this title, directing that the person be committed to inpatient treatment and, if the individual refuses to comply with this order of inpatient treatment, the court may direct a peace officer to take the individual into protective custody and transport the person to a public or private facility designated by the court. 3. The court shall give notice to the person ordered to show cause and hold the hearing within seventy-two (72) hours of the notice. The person ordered to undergo a program of alternative treatment shall not be detained in emergency detention pending the show cause hearing unless, prior to the emergency detention, the person has undergone an initial examination and a determination is made that emergency detention is warranted. 4. If an order of alternative treatment will expire without further review by the court and it is believed that the individual continues to require treatment, a person competent to file or request the filing of a petition, pursuant to subsection A of Section 5-410 of this title, may file or request the district attorney file either an application for an extension of the court's previous order or an entirely new petition for a determination that the individual is a person requiring treatment or an assisted outpatient. 5. A hearing on the application or petition filed pursuant to paragraph 4 of this subsection shall be held within ten (10) days after the application or petition is filed, unless the court extends the time for good cause. In setting the matter for hearing, the court shall consider whether or not the prior orders of the court will expire during the pendency of the hearing and shall make appropriate orders to protect the interests of the individual who is the subject of the hearing. C. Prior to ordering the inpatient treatment of an individual, the court shall inquire into the adequacy of treatment to be provided to the individual by the facility, and inpatient treatment shall not be ordered unless the facility in which the individual is to be treated can provide such person with treatment which is adequate and appropriate to such person's condition. D. Nothing in this section shall prohibit the Department of Mental Health and Substance Abuse Services or the facility or program providing the alternative treatment from discharging a person admitted pursuant to this section, at a time prior to the expiration of the period of alternative treatment, or any extension thereof. The facility or program providing the alternative treatment shall file a report with the court outlining the disposition of each person admitted pursuant to this section within forty-eight (48) hours after discharge. E. Notice of any proceedings pursuant to this section shall be given to the person, the person's guardian, the person's attorney, and the person filing the petition or application. F. If the petition alleges the person to be an assisted outpatient as provided in Section 7 of this act, the court shall not order assisted outpatient treatment unless the petitioning licensed mental health professional develops and provides to the court a proposed written treatment plan. All service providers included in the treatment plan shall be notified regarding their inclusion in the written treatment plan. Where deemed advisable, the court may make a finding that a person is an assisted outpatient and delay the treatment order until such time as the treatment plan is provided to the court. Such plan shall be provided to the court no later than the date set by the court pursuant to subsection J of this section. G. The licensed mental health professional who develops the written treatment plan shall provide the following persons with an opportunity to actively participate in the development of such plan: 1. The assisted outpatient; 2. The treating physician, if any; 3. The treatment advocate as defined in Section 1-109.1 of this title, if any; and 4. An individual significant to the assisted outpatient, including any relative, close friend or individual otherwise concerned with the welfare of the assisted outpatient, upon the request of the assisted outpatient. H. The licensed mental health professional shall make a reasonable effort to gather relevant information for the development of the treatment plan from a member of the assisted outpatient's family or significant other. If the assisted outpatient has executed an advance directive for mental health treatment, the physician shall consider any directions included in such advance directive for mental health treatment in developing the written treatment plan. I. The court shall not order assisted outpatient treatment unless the petitioner testifies to explain the proposed written treatment plan; provided, the parties may stipulate upon mutual consent that the petitioner need not testify. The petitioner shall state facts which establish that such treatment is the least restrictive alternative. If the assisted outpatient has executed an advance directive for mental health treatment, the licensed mental health professional shall state the consideration given to any directions included in such advance directive for mental health treatment in developing the written treatment plan. Such testimony shall be given on the date set by the court pursuant to subsection J of this section. J. If the court has yet to be provided with a written treatment plan at the time of the hearing in which the court finds a person to be an assisted outpatient, the court shall order such treatment plan and testimony no later than the third day, excluding Saturdays, Sundays and holidays, immediately following the date of such hearing and order; provided, the parties may stipulate upon mutual consent that such testimony need not be provided. Upon receiving such plan and any required testimony, the court may order assisted outpatient treatment as provided in this section. K. A court may order the patient to self-administer psychotropic drugs or accept the administration of such drugs by authorized personnel as part of an assisted outpatient treatment program. Such order may specify the type and dosage range of such psychotropic drugs and such order shall be effective for the duration of such assisted outpatient treatment. L. A copy of any court order for assisted outpatient treatment shall be served personally, or by mail, facsimile or electronic means, upon the assisted outpatient, the assisted outpatient treatment program and all others entitled to notice under the provisions of subsection D of Section 5-412 of this title. M. The initial order for assisted outpatient treatment shall be for a period of one (1) year. Within thirty (30) days prior to the expiration of the order, a licensed mental health professional employed by the Department of Mental Health and Substance Abuse Services or employed by a community mental health center certified by the Department pursuant to Section 3-306.1 of this title may file a petition to extend the order of outpatient treatment. Notice shall be given in accordance with Section 5-412 of this title. The court shall hear the petition, review the treatment plan and determine if the assisted outpatient continues to meet the criteria for assisted outpatient treatment and such treatment is the least restrictive alternative. If the court finds the assisted outpatient treatment should continue, it will make such an order extending the assisted treatment an additional year and order the treatment plan updated as necessary. Subsequent extensions of the order may be obtained in the same manner. If the court's disposition of the motion does not occur prior to the expiration date of the current order, the current order shall remain in effect for up to thirty (30) additional days until such disposition. N. In addition to any other right or remedy available by law with respect to the order for assisted outpatient treatment, the assisted outpatient or anyone acting on the assisted outpatient's behalf may petition the court on notice to every facility providing treatment pursuant to the assisted outpatient treatment order to stay, vacate or modify the order. O. Facilities providing treatment pursuant to the assisted outpatient treatment order shall petition the court for approval before instituting a proposed material change in the assisted outpatient treatment plan, unless such change is authorized by the order of the court. Such petition shall be filed on notice to the assisted outpatient, any treatment advocate designated by the assisted outpatient pursuant to this title, any attorney representing the assisted outpatient, and any guardian appointed by the court to represent the assisted outpatient. Not later than five (5) days after receiving such petition, excluding Saturdays, Sundays and holidays, the court shall hold a hearing on the petition; provided, that if the assisted outpatient informs the court that he or she agrees to the proposed material change, the court may approve such change without a hearing. Nonmaterial changes may be instituted to the assisted outpatient treatment plan without court approval. For the purposes of this subsection, a material change is an addition or deletion of a category of services to or from a current assisted outpatient treatment plan or any deviation, without the assisted outpatient's consent, from the terms of a current order relating to the administration of psychotropic drugs. P. Where, in the clinical judgment of a licensed mental health professional: 1. The assisted outpatient has failed or refused to comply with the assisted outpatient treatment; 2. Efforts were made to solicit compliance; and 3. Such assisted outpatient appears to be a person requiring treatment, the licensed mental health professional may cause the assisted outpatient to be taken into protective custody pursuant to the provisions of Sections 5-206 through 5-209 of this title or may refer or initiate proceedings pursuant to Sections 5-410 through 5- 415 of this title for involuntary commitment to a hospital, or may return the assisted outpatient to a facility providing treatment pursuant to the assisted outpatient treatment plan to determine if the assisted outpatient will comply with the treatment plan. Failure or refusal to comply with assisted outpatient treatment shall include, but not be limited to, a substantial failure to take medication, to submit to blood testing or urinalysis where such is part of the treatment plan, failure of such tests or failure to receive treatment for alcohol or substance abuse if such is part of the treatment plan. Q. Failure to comply with an order of assisted outpatient treatment shall not be grounds for involuntary civil commitment or a finding of contempt of court.

Legislative History

Added by Laws 1980, c. 324, § 10, emerg. eff. June 17, 1980. Amended by Laws 1986, c. 103, § 80, eff. Nov. 1, 1986. Renumbered from § 54.9 of this title by Laws 1986, c. 103, § 103, eff. Nov. 1, 1986. Amended by Laws 1987, c. 141, § 2, eff. Nov. 1, 1987; Laws 1988, c. 260, § 12, eff. Nov. 1, 1988; Laws 1990, c. 51, § 99, emerg. eff. April 9, 1990. Renumbered from § 5-405 of this title by Laws 1997, c. 387, § 12, eff. Nov. 1, 1997. Amended by Laws 2000, c. 421, § 9, eff. Nov. 1, 2000; Laws 2002, c. 488, § 43, eff. Nov. 1, 2002; Laws 2005, c. 150, § 49, emerg. eff. May 9, 2005; Laws 2006, c. 97, § 23, eff. Nov. 1, 2006; Laws 2016, c. 177, § 8, eff. Nov. 1, 2016.