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Civil Commitment: Information about the Process for People Alleged to be Mentally Ill
This section describes your rights in the process of getting into and out of state psychiatric hospitals or mental health programs to which you can be committed. Many service providers do not understand the law. Some think it interferes with treatment decisions. These rights are the laws established by the Ohio legislature and by court decisions. These are your rights even if you have a guardian or are under 18 years of age. All hospitals, county mental health boards, and other places to which you can be committed must follow the process laid out here because it is the law.
- Some of your important rights during civil commitment and in the hospital
- Definitions - the legal standards used in civil commitment
- Voluntary status
- Involuntary status
- Potential problems
Freedom and privacy are valued greatly by most people and are protected by the U.S. and Ohio Constitutions. When a court defines you as mentally ill and orders you to a mental health institution you lose freedom and privacy. Because you risk losing your freedom, your individual rights must be protected during civil commitment. This is called due process.
In order to commit you, the court must find that you 1) meet the legal definition of "mental illness," and 2) are an immediate danger to yourself or others. In the civil commitment process you have a right to information in order to understand your rights, including the right to legal representation by your lawyer or one appointed by the court.
People need information for several reasons. Most people are not familiar with court procedures. Attorneys do not always communicate well with clients. The civil commitment process is not always fair or just. Commitment does not always happen as the law says it should, either because legal procedures are not followed or due to misinformed beliefs about people receiving mental health services. For example, lawyers, judges and mental health professionals may believe people labeled mentally ill can't make good decisions; therefore, others should make decisions for them. They may believe most people labeled mentally ill are dangerous and the best place for them is a locked ward. If people carry unfair attitudes and beliefs into the civil commitment process, the results will probably be unfair.
If you are committed, you will probably be committed to a county mental health (MH) board. The court must commit you to "the least restrictive alternative available." Civil commitment to state psychiatric hospitals will occur but will be done through county mental health boards. If you are committed to a board or an agency or placed in a hospital, you may request voluntary status at any time. If a community agency accepts your request you are free to decide whether or not to continue the services.
The court may order people directly to state hospitals, not to the MH board, ONLY if they are involved with the criminal justice system and are:
- found incompetent to stand trial,
- found not guilty by reason of insanity,
- in prison,
- children referred by the Department of Youth Services.
In order to commit you, the court must hold a hearing and have "clear and convincing evidence" that you are "a mentally ill person" and an immediate danger to self or others. In many counties, there will be only 1 hearing, either an initial or a full hearing. A full hearing will be held if you waived your right to the initial hearing. The full hearing must be held within 30 days of the day you were detained. Some counties may hold initial and full hearings in each case.
People have had great difficulty getting out of psychiatric hospitals. This has been true for people with both voluntary and involuntary status. You may believe that if you have signed yourself voluntarily into a psychiatric hospital, you can sign yourself out and leave when you decide to do so. However, there is a process which must be followed in order to leave, and staff can try to keep you by asking the court to commit you if they believe you will benefit from further hospitalization.
Involuntary clients also have problems being released from psychiatric treatment when they believe it is not needed or useful. Involuntary status means commitment against your will. Anyone can sign a paper, called an affidavit, saying you are "mentally ill and in need of hospitalization by court order." The court will decide whether or not you meet the legal definition of "mental illness," are an immediate danger to yourself or others, and if you will be committed to a county board or other treatment setting.
Service providers should respect what people who receive the services define as important. People receiving services are their own best advocates. The law protects your right to be heard. ORC § 5122.15(E) of the Ohio Revised Code requires the court to consider where you want to be placed and what you consider the least restrictive environment if you are committed. ORC § 5122.01(V) requires active client participation in treatment planning. Your experiences and opinions should be heard. You are the expert on what is needed and useful. People speaking out individually is necessary and people speaking out as a group can be a powerful force for change.
- You should be committed only if you meet the legal definition of "mental illness" and are an immediate danger to yourself or others.
- You have a right to be represented by a competent attorney who listens to what you want and advocates for what you want.
- You have a right to have an independent doctor or psychologist evaluate you and testify on your behalf.
- You have a right to an attorney and an independent evaluation even if you do not have any money.
- You have a right to be committed to the place that gives you the most freedom.
- You have the right to be treated with dignity. Your thoughts about what treatment will be provided to you should be listened to and considered.
- You cannot be forced by hospital staff to take medication except in an emergency (an immediate danger to yourself or another person). In the community, you cannot be forced, for any reason, to take medication against your will.
Being familiar with these legal definitions is important because they are the standards judges or referees use to decide civil commitment.
As used in the Ohio Revised Code (ORC):
- Mental Illness means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.
- Mentally ill person subject to hospitalization by court order means a mentally ill person who, because of his illness:
- Represents a substantial risk of physical harm to himself as manifested by evidence of threats, or attempts at, suicide or serious self-inflicted bodily harm; (immediate danger to self) or
- Represents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness; (immediate danger to others) or
- Represents a substantial and immediate risk of serious physical impairment or injury to himself as manifested by evidence that he is unable and is not providing for his basic physical needs because of his mental illness and that appropriate provision for such needs cannot be made immediately available in the community; (immediate danger to self because can't provide own basic needs) or
- Would benefit from treatment in a hospital for his mental illness and is in need of such treatment as manifested by evidence of behavior that creates a grave and imminent risk to substantial rights of others or himself.
The court must be convinced that a person meets the legal definition of mental illness and, because of that, is an immediate danger to him/herself or others. If you do not meet these standards you should not be civilly committed. One problem with these definitions is the use of the language "mentally ill person subject to hospitalization by court order." This causes obvious problems when the focus on placement is to commit to community agencies.
Voluntary status is if you want to sign yourself into a psychiatric hospital.
Who? § 5122.02
Anyone 18 or older who believes that she/he would be helped by a stay in a psychiatric hospital can request voluntary admission. If you are involuntarily committed and want to try to leave the hospital, you can request voluntary admission and write a "three-day letter". A parent of a person under 18 or a legal guardian of a minor or person ruled incompetent can also request admission.
Sign a form which is an application for voluntary status. Hospital staff, with approval from the county board, will decide whether or not to admit you. Requests for voluntary admissions should be granted except in unusual circumstances. The policy of the Ohio Department of Mental Health is to favor voluntary over involuntary admissions.
Request for Release From a Hospital § 5122.03
This procedure does not apply if you are under court order but are not in a hospital. If you are court ordered to community treatment and are not placed in a hospital, you may request voluntary status at any time. Upon acceptance of your application by a community agency, you are free to decide whether or not to continue the services.
The hospital must inform everyone of the right to ask to be discharged and provide needed help in making this request. If you are voluntarily admitted to the hospital and want to leave you must write a "three-day letter." Your letter can be short. Write it to the hospital Medical Director and state that you want to leave. If you need help writing the letter, ask a staff person you trust or the client advocate (each hospital has a client advocate.) You must be allowed to give your three-day letter to the hospital and you should not be punished or threatened for writing it.
After you hand in your three-day letter the hospital has 3 work days (Monday through Friday - not weekends and holidays) to tell you whether or not they agree that you should leave. It is important to know that, even if you signed yourself in voluntarily, hospital staff can keep you if they think you should stay by filing papers to try to commit you.
If the hospital agrees, you leave or if the hospital does not let you go, you receive notice of a hearing.
If staff members want to keep you longer they must file papers - called an affidavit - within 3 work days of receiving your letter. Your request for release becomes a request for a hearing.
If the hospital does not file an affidavit within three work days, you must be released immediately.
Involuntary status is when someone else believes that you are "a mentally ill person subject to hospitalization by court order."
Who? § 5122.10
Any person believed to be mentally ill and a danger to himself or others:
- (§5122.10) may be taken to a psychiatric or general hospital by a
- licensed physician
- health officer
- licensed clinical psychologist
- parole officer
- police officer
- (§ 5122.11) or may be taken into custody if someone has signed a paper, called an affidavit, saying that you are mentally ill, and the court issues a temporary order of detention saying you can be taken for a mental examination.
Ask for written statement §5122.10
A written statement will be given to the hospital stating why you were taken into custody. If you ask for a copy, the hospital must give one to you and, if you want, to your lawyer.
Your dignity should be respected
According to the law, "every reasonable and appropriate effort shall be made to take persons into custody in the least conspicuous manner possible." You have a right to be treated with respect. The person picking you up should do so respectfully, without drawing unnecessary attention to you.
Things you should be told:
The person taking you into custody should tell you:
- his/her name, title and agency,
- that you are not being arrested,
- that you are being taken for mental examination,
- the name of the facility where you will be taken.
If you are taken to a general hospital, you must be transferred to a psychiatric facility or released within 24 hours.
If you are taken to a psychiatric hospital or community mental health center you must be examined within 24 hours.
You must be released if:
- the examiner does not think you are mentally ill, and
- you are not under a temporary order of detention (TOD) issued by the court (see Temporary Order of Detention).
If the examiner thinks you need to stay in the hospital you can be kept for 3 work days after the day of examination. By the end of the third work day the hospital must either file an affidavit to involuntarily commit you, or you must be released.
Your rights § 5122.05
As soon as you are taken into custody you should be told and also given in writing that:
- you can immediately make telephone calls, or contact in another way, a lawyer, doctor or psychologist for help. If you need help contacting these people, staff members must help you.
- you have a right to legal counsel. If you can't afford a lawyer, the court will appoint one.
- you have the right to an independent expert mental evaluation. If you want to be evaluated by a professional who doesn't work with the hospital, you have a right to that evaluation, even if you cannot pay for it.
- you have a right to a hearing to determine if you meet the legal definition of "mental illness" and are an immediate danger to self or others.
You may have to ask the court to appoint a lawyer or an independent expert.
The affidavit § 5122.11
The affidavit is a paper describing what part of the law is being used to say you are "a mentally ill person in need of hospitalization by court order" and the facts showing reasonable grounds to believe this. (§ 5122.01 (B) (1-4))
When the affidavit is received, the court may issue a temporary order of detention (TOD) saying you be brought in for a mental exam and held until the hearing.
Exam before the hearing §5122.14
After the court accepts the affidavit, the court may appoint a professional to conduct a mental exam. The exam should be held at a hospital, in your home, or "any suitable place least likely to have a harmful effect" on your health.
Notice of hearing §5122.12
After the court receives the hospital's affidavit, or if you have been found not guilty by reason of insanity (NGRI), the court will send you a written notice of a hearing. The court will also notify your husband or wife; your guardian if you have one; your parents (if you are under 18); the person filing the affidavit; the chief clinical officer of the hospital, MH board, agency or facility; adult next of kin or a person you want to know; your attorney and the board's attorney. In cases with criminal charges, the prosecutor and Attorney General receive notice.
Notice to County Board and Assessment § 5122.05
When involuntary commitment is applied for, the hospital's chief clinical officer must immediately notify the mental health board in the county where you are a resident.
The MH board must promptly make an assessment (unless they have done so already) to determine if you meet commitment standards and if other less restrictive services are available.
The Court's Report §5122.13
The court refers the affidavit to the county mental health board to see if other services are available besides hospitalization. The MH board reports to the court. A copy of this report must be sent to your lawyer before the hearing. The report is not used to determine if you are "a mentally ill person subject to hospitalization." If the court does make this determination, this report will be used to determine if you will be hospitalized or receive community services.
In many counties only 1 hearing - initial or full - will be held during the first 30 days of detention. Some counties will hold two hearings, both the initial and full. Both the initial and full hearings should be conducted in the same way talked about on pages 14 -18. Your rights at either hearing are the same.
The initial hearing §5122.141
Where possible, the initial hearing must be held before you are taken into custody. However, this rarely happens. The hearing must be held unless you or your attorney, with your permission, choose not to hold it.
The purpose of the hearing is to determine whether or not you are a "mentally ill person subject to hospitalization" by court order. The hearing will be held within 5 days of the day you were detained or the day the affidavit was filed (whichever is earliest). The hearing should be held in a "setting not likely to have a harmful effect" on you. It may be held in a hospital. If the hearing is not held within 5 work days you must be released immediately.
If you, your lawyer, the court or the chief medical officer have a good reason, the court may order a continuance - put off the hearing. The continuance can be for no more than 10 days from the day you were detained (including weekends and holidays) or when the affidavit was filed (which ever is earliest). If the hearing is not held during this time you must be released immediately, unless you and your lawyer choose to waive (not to have) an initial hearing.
If you want, you can tell the court you do not want an initial hearing. In this case, unless you have been released sooner, a full hearing must be held within 30 days of your detention. If the hearing is not held during this time you must be released right away.
Full hearing § 5122.15
The hearing must be held within 30 days after the date of detention for people who have waived (said they did not want) the right to an initial hearing.
The hearing (initial and/or full)
The hearing's purpose is to determine whether there is clear and convincing evidence that you are "a mentally ill person subject to hospitalization by court order." The case for hospitalization must be made by an attorney appointed by the board. That attorney must present evidence of:
- prognosis (outlook for recovery)
- record of treatment
- less restrictive treatment plans, if any.
Your rights at the initial and/or full hearing:
- You have a right to attend the hearing.
- You have a right to an independent expert mental evaluation even if you cannot pay for the evaluation.
- The hearing may be conducted by a judge or a referee, who must be an attorney. If a referee hears your case, you have a right to appeal the referee's decision to the judge by filing objections.
- You have a right to hire a lawyer of your choice. If you cannot afford a lawyer, the court will appoint one.
- If you do not have a lawyer, are not at your hearing or have not waived your right to (said you don't want) a lawyer, the court will appoint a lawyer for you and the hearing will be continued (rescheduled).
- With your consent, your lawyer will have access to all information about your case.
- You or your lawyer have a right to call witnesses and have the court look at the papers you think will help your case.
- You have the right to talk during the hearing, but you do not have to talk. If you talk, you must take an oath to tell the truth.
- If you ask, you will get a written record of the hearing. If you can afford it, you will be asked to pay for this written record.
If, after the hearing, the court thinks that you are not "a mentally ill person subject to hospitalization" you must be released immediately and all records of the proceedings must be destroyed.
If, after the hearing, the court thinks that you are "a mentally ill person subject to hospitalization" by court order, the court may issue an interim order of detention. You will be taken to a hospital or for community treatment, whichever the court decides.
In considering placement, the court must consider:
- prognosis (outlook for recovery)
- what you would like to have happen
- the projected treatment plan
- the least restrictive alternative.
The court must clearly state if inpatient hospitalization is recommended.
The court may commit people to:
- the MH board or an agency the board picks, regardless of consent of the facility or space
- a private hospital
- a Veterans Administration hospital
- a private psychiatrist or psychologist
- any other suitable setting.
The Court may order a person directly to a state psychiatric hospital, not to the MH board, only if the person is:
- found incompetent to stand trial
- found NGRI (not guilty by reason of insanity)
- in prison
- a child referred by the Department of Youth Services.
After the court order, the agency must make a placement in the least restrictive setting and give notice of this placement to the lawyers and the court. Regardless of the agency to which you are committed, you may file for voluntary status at any time.
Notice to others § 5122.18
When you are involuntarily committed, notice will be given to the husband, wife or next of kin, lawyer and, when it applies, to the legal guardian. If you are a voluntary client, such notice cannot be given without your consent.
If your case is heard by a referee § 5122.15(J)
If a referee (an attorney appointed by the court who is not a judge) has been appointed by the court to hear your case and you do not agree with the decision, you may file written objections with the court within 14 days of the hearing. Within 10 days, a judge must rule on these objections and may hear other testimony relating to the case. Your attorney should help you with this.
Requesting voluntary status
You can request voluntary status at any time. The policy of the Ohio Department of Mental Health is to favor voluntary requests. If you are in a psychiatric hospital, want to leave, and your voluntary request has been accepted, you can try to leave by writing a "three-day letter". Upon acceptance of your application by a community agency, you are free to decide whether or not to continue the services.
Movement from a community agency to a psychiatric hospital § 5122.15(M)(1-4)
Before a board or other agency to which you are committed can move you without your permission to a more restrictive placement, such as a hospital, they must:
- determine that you are an immediate danger to yourself or others,
- file a motion for transfer with the court on the day of the placement or the next court day,
- take you to the placement in a way that draws as little public attention as possible, and
- immediately notify your attorney and their attorney.
AT YOUR REQUEST, the court will hold a hearing about moving you to a more restrictive environment. THE COURT WILL HOLD A HEARING ONLY IF YOU REQUEST ONE. The hearing must be held and a decision made within 5 days of your placement. LRS believes it is unconstitutional for a person to have to request a hearing. Each person has a right to a hearing when freedom and privacy are at stake.
Your wishes about placement must be considered § 5122.15(N)
Before you can be moved to another residential placement, the move must be talked over with you. If you object to the move, the proposed placement must be reviewed by a qualified mental health professional not involved in your treatment.
Transfer of voluntary or involuntary clients § 5122.20
Involuntary clients or consenting voluntary clients can be transferred to another hospital or community agency. If you are an involuntary client, the chief clinical officer must file a motion requesting the court to change your original placement.
AT YOUR REQUEST, the court will hold a hearing whether you should stay at the new placement. THE COURT WILL HOLD A HEARING ONLY IF YOU REQUEST ONE. The hearing must be held within 10 days of your placement. If you, your lawyer, the court or the chief clinical officer have a good reason, the hearing may be continued for 10 days. The hearing process is the same as that of the initial and full hearing described above. You have the same rights as at the initial and full hearings. LRS believes it is unconstitutional for a person to have to request a hearing. Each person has a right to a hearing when freedom and privacy are at stake.
You can request voluntary status at any time. If a community agency accepts your request you are free to decide whether or not to continue the services.
Commitment longer than 90 days §5122.15(H)
If the agency or hospital to which you are committed wants to keep you longer than 90 days, it must file with the court an application for continued commitment. This application must be filed at least 10 days before your period of commitment is over. If the application is not filed at least 10 days before your 90 days is up, you must be discharged immediately.
The application must contain in writing:
- prognosis (outlook for recovery)
- past treatment
- list of alternative treatment settings and plans
- identification of the least restrictive placement.
A copy of the application must be sent to your lawyer immediately.
A full hearing must be held. If the court decides to commit you it may order you held for up to 2 years. A hearing must then be held at least every 2 years. These hearings cannot be waived. Although hearings must be held every 2 years without your request, you can request a hearing every 180 days. You have the right to ask for voluntary status at any time.
You can request a full hearing before 180 days if you have an affidavit from a psychiatrist or licensed psychologist saying that you are no longer "a mentally ill person subject to hospitalization by court order."
The treatment plan § 5122.01(V)
In exchange for freedom lost in the civil commitment process, treatment must be provided. The treatment plan will consist of:
- reasonable objectives and goals established by the treatment team,
- specific criteria to measure progress in meeting these goals and objectives.
- documentation of your active participation in creating these goals and objectives.
The plan must be based on your needs. It must include services to be provided while in treatment and after discharge, including housing, financial services and vocational services.
You have a right to participate actively in treatment planning. You should not just be called after the treatment team meeting, told what the plan is, and asked to sign it.
Discharge of involuntary clients §5122.21
At least every 30 days, you must be examined. When the conditions justifying involuntary commitment - the criteria for hospitalization - no longer apply, you must be discharged. The court will be notified of the discharge.
The four criteria for commitment defined in ORC § 5122.01(B)(1-4) deal with the standard of immediate danger to self or others. These criteria are used to identify a "mentally ill person subject to hospitalization by court order." It is puzzling to see how these same standards are applied to commitment to community settings. Also, the fourth standard does not provide much guidance to the court and may be unconstitutional. Without clear definitions there is much room for potential abuse.
Confusion about medication may occur. The absolute right to refuse medication has always included people receiving community mental health services, even if a person has been committed to a county mental health board. People receiving community services, whether voluntary or involuntary, have a right to accept or reject medication. An involuntary court order of commitment does not take away this right or make you incompetent to decide for yourself whether to take medication.
There should be no punishment or threats when you refuse medication. For instance, you should not be told you cannot receive other types of services because you refuse medication or threatened with being put into the hospital because you refuse medication.
Differences in the Legal Process
All probate courts should follow the same civil commitment court procedures. However, changes in the law, misinformed attitudes about people labeled mentally ill or too much reliance on mental health professionals may increase the number of cases where the civil commitment process does not follow the law.
A similar problem may happen with legal representation. Sometimes a lawyer, rather than representing what the person being civilly committed wants, accepts the opinion of mental health professionals that commitment is in the person's best interest. If this happens, the lawyer may not work actively on your behalf. Active legal representation means your lawyer has a good understanding of the law, discusses what you want and does the best he/she can to represent your wishes. You have a right to have witnesses at the hearing, and, through your lawyer, to present documents and question witnesses. You have a right to know what your lawyer will do at the hearing and to make major decisions about how your case will be presented, including whether or not you should testify.
Differences in services
The movement in Ohio mental health services and the commitment process is toward giving more and more control to local mental health boards. The belief is that these boards will be better able to identify and meet community needs. One problem is that services will vary from board to board. Local boards may not have the services you need and to which you are entitled.
ORC §340.09 lists the services which county mental health boards must provide in order to receive funding through the Ohio Department of Mental Health (ODMH). These required services are:
- outpatient (outside the hospital)
- partial hospitalization (sometimes called day treatment)
- mental health education and other prevention services
- referral and information
- drug abuse
- service and program evaluation
- other programs and services approved by the community mental health board and the Director of ODMH.
Most boards have little experience with court ordered commitment. Professionals will be struggling to interpret the law and board ordered commitments. People receiving mental health services may get caught in a trial and error process. Some professionals may misinterpret the notion of board ordered commitment to mean that clients can be forced or coerced into treatment, including forced medication. Additionally, they may not understand that you have a right to participate actively in treatment planning.
Right to dignity and respect
Your rights to be treated with dignity and respect are clearly stated and legally protected. To assist in protecting these rights, several safeguards exist.
First, ORC § 5122.10 states that "every reasonable and appropriate effort shall be made to take persons into custody in the least conspicuous manner possible."
ORC § 5122.14, referring to the pre-hearing exam, says, "the examination, if possible, shall be held at a hospital or other medical facility, at the home of the respondent, or at any other suitable place least likely to have a harmful effect on the respondent's health."
ORC § 5122.29(B) states that you have the "right at all times to be treated with consideration and respect for ... privacy and dignity."
The law allows for one hearing deciding civil commitment
Before changes in the law, allowance was made for 2 hearings - a probable cause hearing followed by a full hearing. Now, however, there is no probable cause hearing, and most counties will conduct either an initial hearing or a full hearing. Some counties will conduct both. If you waive your right to the initial hearing, you must have a full hearing within 30 days of the day you were detained. People who have an initial hearing, and their lawyer, must be fully prepared to state their position, have witnesses and present any useful documents because a determination about commitment will be made. This information is especially important for people who have been previously committed who may expect a probable cause hearing followed by a full hearing and instead find themselves committed for 90 days after only 1 hearing.
The independent expert evaluation
Any person at risk of being civilly committed may have an independent mental evaluation (ORC § 5122.05(C)(2)). If you can't afford the evaluation the service must be provided without charge to you. If you do not like the independent expert's evaluation you can stop it from being admitted in court. This independent evaluation should be provided to you even if the court appoints an expert witness for itself, since the law intends for you to have your own witnesses.
Change in placement
From less to more restrictive placement - If the board believes a person who is board committed is in need of psychiatric hospitalization or other more restrictive placement, a motion must be filed with the court requesting the court to amend its order. The court will hold a hearing only if the respondent requests a hearing. LRS believes that a hearing should automatically occur to protect individual rights and that making people receiving mental health services responsible for requesting a hearing is a violation of their due process rights.
From more to less restrictive placement - Except if you have been found not guilty by reason of insanity, during your stay in a psychiatric hospital it is found that your treatment needs could be equally well met in a less restrictive environment, you must be released. The court must either dismiss the case or order placement in the least restrictive environment. (ORC § 5122.15(F)).
Risk of punishment in community commitment.
According to the law, you must be actively involved in creating your treatment plan and identifying goals and objectives which you define as important. Professionals cannot force treatment in a community setting. They also cannot punish, threaten or retaliate against you for not doing what they think you should do. It is against the law to hospitalize or threaten hospitalization solely because you will not comply with suggested treatment.
Commitment to a board or other agency cannot be ordered as a preventive measure
The standard for commitment is "clear and convincing evidence" that you are an immediate danger to yourself or others. The intent is to preserve freedom. Commitment cannot be used because a professional believes it is necessary because your condition is "worse," or to prevent future hospitalization.
Publication reviewed in 2003