mental health hearings · mental health proceedings are closed to the public and the related...

1

Mental Health Hearings

Christopher Ripley

Ripley Law Office, LLC

TTALT Conference

ISBA Pro Bono Committee

2017

2

BIOGRAPHY Chris Ripley's practice centers primarily in the areas of estate planning and administration, trusts, guardianships, Medicaid planning and business succession planning. Chris Ripley assists his clients in the preparation of wills, trusts, advance healthcare directives, general powers of attorney, and other personal planning documents necessary to protect their assets. Mr. Ripley works with clients on elder law matters and helps them plan for long-term care and other issues surrounding the care of elderly family members. Chris Ripley comes from a general practitioner background and was previously a partner at Kolb Roellgen & Kirchoff, LLP, before joining Bamberger, Foreman, Oswald & Hahn, LLP, in 2015. His general practitioner background includes considerable litigation work in addition to conventional estate planning and elder law representation. Chris Ripley founded Ripley Law Office, LLC in 2017 to serve clients throughout southwestern Indiana. Mr. Ripley lives in Evansville, Indiana with his wife, Melaina, and their three cats. Chris and Melaina enjoy participating in public activities, particularly related to historical events and the regional Alzheimer's Association. He is currently writing his first book.

DISCLAIMER

These materials are the property of the author, included herein with permission. These

materials are intended for presentation purposes only. Unauthorized reproduction or

presentation of these materials in whole or in part is prohibited without the express

written permission of the author. All documents and other materials referenced herein

are the property of the respective owners. Although every effort has been made to

obtain the best information available for this presentation, many of the issues in this

area are part of a rapidly changing body of law and administrative regulation. The

presenter makes no warranties about the legal conclusions stated in the presentation,

and the presentation is not intended as legal advice to any individual. Attendance at the

presentation of this material does not and is not intended to create an attorney/client

relationship, and is for general information purposes only. Application of the principles

discussed in the presentation to specific facts or cases should only be undertaken with

the advice of knowledgeable counsel. All opinions expressed herein are those of the

author.

3

1. Introduction

Attorneys perform an essential function when they provide representation at mental

health proceedings. These attorneys provide their clients with their day in court and an

opportunity to be heard. These hearings strongly implicate client capacity issues.

Often, patients have a limited ability to participate in their own representation. Attorneys

may also appear on behalf of the hospital as well although this is outside of the court

appointment system.

Mental health proceedings are closed to the public and the related records are normally

sealed. This can create an obstacle to learning about these proceedings and getting

involved. Many practitioners do not know that these cases occur on a frequent basis in

every Indiana county. While these proceedings are sealed, they are also recorded.

Attorneys normally are appointed to represent the patient. Although it would be

possible for a family to hire a private practice attorney to represent a patient, it is

uncommon. There is often little notice before a hearing. Clients are often of limited

means and may lack family supports.

Mental health hearings are most often not conducted in a courtroom. Depending on the

condition of the client and logistical limitations, it is usually not appropriate for these

hearings to occur outside of the treatment facility.

2. Legal Basis

In Indiana, mental health proceedings are regulated under Indiana Code Title 12, Article

26. Among other issues, hearings arise under four (4) chapters of Article 26.

Voluntary Treatment. Ind. Code 12-26-3 (Voluntary Treatment) sets out the court

procedure for hearings for involuntary detention follow a period of voluntary treatment.

It requires the facility to make a report to the court under Ind. Code 12-26-3-5 following

a written request for release after which the court may set either a preliminary or a final

hearing on the report. Ind. Code 12-26-3-6. After a final hearing, the court may order

either a temporary commitment or a regular commitment although only a temporary

commitment may be ordered if the patient has never been the subject of a commitment

proceeding. Ind. Code 12-26-3-9.

Immediate Detention. Ind. Code 12-26-4 (Immediate Detention) sets out the court

procedure for detention of an individual by a law enforcement officer and their transport

to a facility for initial medical review. Ind. Code 12-26-4-1.5. The patient may not be

detained for more than twenty-four (24) hours after admission to the facility. Ind. Code

12-26-4-5. For a longer period of detention, a Petition for Emergency Detention will be

needed. Ind. Code 12-26-4-6.

Emergency Detention. Ind. Code 12-26-5 (Emergency Detention) sets out the court

procedure for the detention of an individual in a facility for not more than seventy-two

(72) hours. This is sometimes referred to as a “seventy-two (72) hour hold”. An

4

emergency detention requires an application along with a physician’s statement. Ind.

Code 12-26-5-1.

Before the end of the detention period, the facility (usually through the attending

physician) must submit a written report concerning the patient’s status to the court. Ind.

Code 12-26-5-5, 6, 7. The court is called upon to act on the report within twenty-four

(24) hours of receipt. Ind. Code 12-26-5-8. The court may order the patient released,

or set a preliminary hearing or a final hearing. Ind. Code 12-26-5-9.

After a final hearing, the court may order either a temporary commitment or a regular

commitment although only a temporary commitment may be ordered if the patient has

never been the subject of a commitment proceeding. Ind. Code 12-26-5-11.

Temporary Commitment. Ind. Code 12-26-6 (Temporary Commitment) sets out the

court procedure for hearings for a temporary commitment. A temporary commitment

may be for a period not to exceed ninety (90) days. Ind. Code 12-26-6-1. Temporary

commitments may arise from proceedings following voluntary treatment, from a court

order following an emergency detention or from a new petition. Ind. Code 12-26-6-2.

The court may appoint a physician to examine the patient and provide a report in

advance of the hearing. Ind. Code 12-26-6-6.

After the hearing, the court may order a temporary commitment. Ind. Code 12-26-6-8.

The period of commitment may be extended for one (1) additional period not to exceed

ninety (90) days. Ind. Code 12-26-6-10. The proceedings for this extension must begin

before the current period of commitment ends. Id. The facility (usually the attending

physician) must report to the court on the patient’s status at least twenty (20) days

before the end of each temporary commitment period. Ind. Code 12-26-6-11.

Regular Commitment. Ind. Code 12-26-7 (Regular Commitment) sets out the court

procedure for hearings for a regular commitment. A regular commitment may be for a

period expected to exceed ninety (90) days. Ind. Code 12-26-7-1.

Regular commitments may arise from proceedings following voluntary treatment

pursuant to Ind. Code 12-26-3-9, from a new petition if the patient has not been

previously committed under Ind. Code 12-26-6 (Temporary Commitment) pursuant to

Ind. Code 12-26-7-2 or from a report under Ind. Code 12-26-6-11 recommending

treatment in a facility for a period exceeding ninety (90) days pursuant to Ind. Code 12-

26-7-4. If a petition is used, it must include a physician’s report. Ind. Code 12-26-7-3.

The hearing procedures for regular commitment proceedings are the same as those for

temporary commitment proceedings. Ind. Code 12-26-7-4. After the hearing, the court

may order regular commitment or outpatient therapy. Ind. Code 12-26-7-5.

Deadlines. The court and facility may miss filing and notice deadlines. Some of these

issues – particularly related to notice – can be hard to fight after the fact. Appropriate

5

procedural issues should be raised at the hearing if for no other reason than to protect

the record.

It is very important to review the procedural basis for each proceeding and match it to

the relevant statutes. This commenter has won cases based on procedural failures.

This review is essential to protect the patient’s due process rights.

3. Documents

The pre-hearing documents need to be reviewed in detail. They are form documents

and can be expected to follow established formats. Procedural defects appear in these

cases and could be important at the hearing. It is essential that the patient’s attorney

confirm the procedural footing of each case and match the timeline of the case against

the statutory requirements. The case event timeline should be set out and the

allegations in the petition and physician’s statement should be identified.

As a matter of safety, the reports should be checked for any indication of violence on

the part of the patient.

Petition. There will likely be a Petition for either temporary or regular commitment in

the file. This will likely serve as the basis for the hearing. In the Petition, the examining

physician should set out the nature of the requested commitment (temporary or regular)

as well as a brief basis for the commitment. This document may refer to and

incorporate the Physician’s Report.

Reports. There should be a Physician’s Report in the file. This document will likely be

cross-referenced in the Petition, if any. It should contain information on when the

treating physician examined the patient, the patient’s diagnosis, commentary on the

patient’s behaviors and capacity for self-care and compliance with treatment. It should

also contain statements as to whether the patient is mentally ill and either gravely

disabled or a danger to himself or herself or others. It should provide a statement of the

proposed treatment for the patient including whether a temporary or regular

commitment is required and a recommendation of where services can be provided.

There may also be a Report Prior To Termination of Emergency Detention. This is a

similar report of the patient’s status provided prior to the end of a period of emergency

detention. In the case of an emergency detention, there should also be detaining

officer’s written statement in the file.

Orders. There will be at least one Order in the file setting the hearing making up the

basis of the mental health proceeding. This Order could be in response to a Petition for

either temporary or regular commitment or could be issued by the court following review

of the Physician’s Statement.

Emergency Statements. There should be at least one Emergency Statement and

related Order in the file if the patient was subject to an Immediate Detention or an

6

Emergency Detention. This document will set forth the basis for the initial detention of

the patient.

4. Logistics

To get involved in mental health proceedings, attorneys should check with the county

clerk’s office. There will usually be a program coordinator who is the primary point of

contact for the attorney when appointments are made.

Appointed attorneys are hired and paid by the county in a similar process to the public

defender program. It is important to generate appropriate appearance and invoice

forms to streamline this process. Each county will vary in the paperwork that it uses.

The standard forms should generally conform in content across counties, but expect

differences. With e-filing, e-mail and modern forms, access to and generation of the

necessary documents has never been easier.

As you should expect, each judge will have a different approach to their mental health

proceedings. Take the time to learn each judge’s nuances. Depending on the county,

the judge tasked with mental health proceedings may rotate down a list or rotate by

month or quarter. Attorneys at these hearings can expect to work with several judges in

each county.

For a young attorney, mental health hearings are an excellent way to quickly build

experience with clients, clock time in front of a variety of judges and provide an

essential public service.

Arrive early. Given the speed of these appointments, it is entirely likely that you will

need to consult with the patient just prior to the hearing. Do not leave the judge waiting.

Provide time to interview the client. This often will take more time than anticipated.

Take time to consult with the treating physician but bear in mind that if the facility is

represented, facility counsel must be involved. It is possible that the patient and facility

either have reached or can reach an agreement on treatment and the outcome of the

proceeding in advance of the hearing.

5. Client Interview

As is the case in many areas, the Indiana Rules of Professional Conduct are an

excellent starting point. Under Rule 1.14 relating to working with clients with diminished

capacity, “[w]hen a client's capacity to make adequately considered decisions in

connection with a representation is diminished, whether because of minority, mental

impairment or for some other reason, the lawyer shall, as far as reasonably possible,

maintain a normal client-lawyer relationship with the client.” We should include the

client in the proceedings to the full extent that his or her abilities and condition allow.

The client should have received a notice of his or her rights in relation to the mental

health proceeding with the Order setting hearing. This should be reviewed with the

client. The attorney should highlight their role and the purpose of the hearing.

7

The attorney should also go over the pattern of events that will take place at the

hearing. The patient should know that the physician will provide testimony first, that his

or her attorney will be able to question the physician and that other witnesses (including

the patient) will have a chance to provide testimony. The attorney can highlight that

everyone giving testimony will be under oath, only one person can speak at a time and

that the judge and other participants must be given respect.

This is an opportunity to focus in on the core of the representation: what does the

patient want? The attorney and the client should discuss the client’s goals and plan, if

any. This is the time to review the Physician’s Statement with the client and gauge the

client’s awareness of the diagnosis and allegations as well as discuss their current

treatment and medications. If the client wishes to testify, this is the time to prepare and

review the questions that the attorney will ask the client.

6. Evidentiary Standard

The evidentiary standard for temporary and regular commitments is set out in Ind. Code

12-26-2-5(e): “The petitioner is required to prove by clear and convincing evidence that:

(1) the individual is mentally ill and either dangerous or gravely disabled; and (2)

detention or commitment of that individual is appropriate.” Let’s unpack this.

Mentally Ill. Does the patient suffer from a psychiatric disorder that substantially

impairs their mental health and ability to function? See Ind. Code 12-7-2-117.6, 130.

What are the diagnosis, features and relevant behaviors and thoughts?

Dangerous. Does the patient present a substantial risk of harm to himself or herself or

others due to mental illness? Has the patient made threats to others or stated ideations

of suicide? See Ind. Code 12-7-2-53.

Gravely Disabled. Is the patient so impaired that he or she cannot meet his or her care

needs or function on his or her own? See Ind. Code 12-7-2-96.

Detention or Commitment Is Appropriate. Principally, this element rests on whether

commitment is the least restrictive environment available to provide for the necessary

care of the patient. Are there outpatient alternatives that can provide for the patient’s

care and compliance with treatment while also protecting the patient and members of

the community?

Testimony by the Examining Physician. Subject to waiver, an examining physician is

explicitly required to testify in proceedings under Ind. Code 12-26-3 (Voluntary

Commitment) and Ind. Code 12-26-5 (Emergency Detention). This language does not

appear in Ind. Code 12-26-6 (Temporary Commitment) or Ind. Code 12-26-7 (Regular

Commitment). That said, this commentator has never seen a case where an examining

physician has not testified and would strongly question whether a petitioner could meet

its burden of proof without such testimony.

8

Evidentiary Issues. This commentator has never seen issues with the introduction of

the Physician’s Report or a proposed care plan. In this commentator’s experience, the

statements in these documents are restated, explained and updated through the

testimony of the examining and treating physician. Evidentiary objections may be

appropriate if an examining physician is not made available to testify. Again, this

commentator has never experienced this fact pattern.

7. Conduct of the Hearing

The Indiana Rules of Trial Procedure apply to these proceedings (subject to the

provisions of Indiana Code Title 12, Article 26). Ind. Code 12-26-1-6.

Generally, mental health proceedings will follow a set pattern. The judge will begin the

hearing by confirming that the recorder is functioning, identifying the parties present for

the record and explaining the basis for the hearing. Witnesses will be sworn. This is

the best time to raise any procedural issues that may appear from the record.

Next, testimony will be taken. The treating physician testifies first. He or she may be

the only witness. The judge and counsel for the patient will have an opportunity to

question the physician. If the facility is represented by counsel, that attorney will lead

the initial questioning. If not, then the judge will perform this role.

If the facility has any additional witnesses, they will testify next. The pattern of

testimony will likely match that of the treating physician.

At this point, the facility’s evidence will be closed. It is possible for the patient’s attorney

to move for denial of the facility’s Petition on the basis that it has failed to carry its

burden of proof. Except in unusual circumstances, it would likely be better to proceed

with presentation of the patient’s evidence.

If available, friends and family members of the patient can offer testimony. The patient

may also testify as well. Patient’s counsel will start the questioning. The judge will

likely also question these witnesses and counsel for the facility (or facility staff in the

absence of counsel) will have an opportunity to cross-examine these witnesses.

At the close of evidence, the judge will either enter his or her decision immediately or

take the matter under advisement.

8. Testimony

Under Ind. Code 12-26-2-3, the patient, petitioner and “all other interested individuals”

shall have an opportunity to testify at the hearing. The parties may present witnesses

and conduct cross-examination. I.C. 12-26-2-3.

Normally, the treating physician and the patient testify. The facility and patient can call

additional witnesses, however. Usually, these additional witnesses are facility staff and

social workers and the patient’s family members.

9

Physician. The treating physician should provide his or her professional background

including education, residency, licensure and work history. He or she should be

questioned about their review of the patient including access to prior treatment records,

interviews, first contact with the patient and treatment provided.

In relation to the medical history, the physician should be questioned concerning

whether the patient has been hospitalized on a recurring basis.

The physician should be questioned about the patient’s diagnosis. The diagnosis at the

hearing may vary from that in the Physician’s Report. It is important to go beyond the

raw diagnosis to the diagnostic features exhibited by the patient and then to the specific

behaviors and thought patterns demonstrated by the patient. This discussion goes

directly to the facility’s claims in the Petition concerning the patient’s status as mentally

ill and either dangerous or gravely disabled.

If a care plan has been filed by the facility, it should be reviewed during questioning. If

not, the physician can still be questioned concerning care goals, the expected

treatments and the expected treatment timeline.

The physician can also be questioned about his or her knowledge of community

supports for the patient, the patient’s compliance with treatment and alternative

treatment options such as placement in a group home and the use of injectable

medication which may ease medication compliance issues. This discussion goes

directly to the facility’s claims in the Petition concerning whether detention or

commitment is appropriate and whether a less restrictive environment is available that

could still meet the patient’s therapeutic needs.

Social Worker/Staff. Social workers and other facility staff can be expected to provide

testimony along similar lines as that of the treating physician.

Patient. The patient can be questioned and can also be provided the opportunity to

make a statement to the court. The patient’s ability to participate is strongly affected by

his or her condition and understanding of the proceedings. Most patients who are

actively involved in the proceedings will want to make a statement to the court. The

hearing process may even be an opportunity for the patient to gain a greater

understanding of the facility’s care plan and the patient’s prognosis.

The patient could be questioned concerning his or her understanding of his or her

diagnosis and behaviors, his or her plans and community supports and his or her

desires concerning compliance with treatment. The judge will likely have questions for

the patient as will the facility representative or the facility’s counsel.

Family. Family members may be an excellent source of information concerning the

patient’s behavioral and treatment history. From the perspective of the patient and

patient’s counsel, family members will most likely provide their most useful testimony on

the topic of the patient’s supports in the community including a place to live and

assistance with compliance with treatment.

10

9. Common Issues

There are several common issues and activities that come up in mental health

proceedings that can affect the progress of a case. These are outside of a specific

diagnosis.

Patient Refusal to Work with the Attorney. The patient may simply refuse to work

with his or her appointed counsel. In this situation, the attorney should attempt to

explain why he or she is there. If the patient will not work with the attorney, this should

be reported to the court at the start of the hearing. The attorney can offer to remain as

stand-by counsel.

Patient Refusal to Conform Conduct During the Hearing. The patient may become

disruptive at the hearing due to frustration or an inability to conform to the pattern of

activity expected in a legal proceeding. This may take the form of inappropriate

behavior or interruptions. Under I.C. 12-26-2-2(b)(3)(A), the court can remove the

patient if he or she is disruptive. The hearing can continue in the patient’s absence. It

may be possible to have the patient return and give testimony.

Patient’s Ability to Participate in the Hearing Is Limited. The patient’s condition

may not leave him or her able to participate in questioning or providing testimony. The

patient’s attorney must still represent his or her client and put the facility’s evidence to

the test.

Aggression in the File. This is an infrequent issue. At the same time, with enough

hearings, an attorney will have a case with a client with a history of aggression in his or

her file. The attorney should be aware of his or her surroundings and able to terminate

an interview and request assistance if needed. In extreme cases, the procedure of a

hearing may be modified if direct contact with a client would be dangerous. Facility

personnel should be able to advise if there is a known safety risk.

Medications in Flux. Patients are often in a period of transition with their medications

at the time of a hearing following emergency detention or immediate detention.

Psychotropic medication often takes weeks to become fully effective. If a patient

discontinued their medication treatment while out in the community, an attorney may be

working with them just a few days after re-establishment of treatment. Sometimes, a

facility will have a short history with a patient and may need to try different medications

and dosages to find an effective treatment. All of this effects the patient’s condition and

ability to participate in the hearing.

Lack of Insight. In short, physicians will use this phrase as shorthand for the patient

not understanding his or her illness. This is a significant obstacle to treatment and

arguing against commitment. The patient’s insight should be gauged during the pre-

hearing consultation.

11

Digressive. The patient tends to have disorganized thought processes. Conversations

will often go off on tangents. This can make consultations and testimony more difficult

and require additional time to cover necessary issues.

Malingering. The patient is believed to be exaggerating or falsifying some illness

presumably for some benefit such as attention.

Noncompliance with Medication or Other Therapy. This often coincides with lack of

insight. Some patients will exhibit a pattern of conduct where medication compliance

drops off after release from a facility which results in a new hospitalization once

symptoms recur. Substance abuse may also be involved as the patient attempts to self-

medicate in the community.

Honesty. In this commentator’s experience, honesty is not an issue for most patients.

Most patients are willing to answer questions and readily provide information. If a

patient provides testimony, most are very willing to honor the oath and provide

extremely honest answers. In the event of a prevaricating client, the attorney’s duty of

candor to the tribunal under Indiana Rules of Professional Conduct Rule 3.3 is the same

in these proceedings as in any other.

10. Common Diagnoses

The following discussion is far from exhaustive. Attorneys in this area work with clients

with a variety of diagnoses and may come across rare or unexpected diagnoses that

can complicate the representation.

An initial statement. This commentator is a lay person when it comes to mental health

work. He has tried to understand what his clients are going through. Often, their beliefs

and behavior will evidence delusions that are demonstrably false. Yet, the client

believes them anyway. This can be very difficult to understand. The closest that this

commentator has been able to get is accepting that the patient’s thought patterns and

sensory inputs are self-reinforcing. His or her divergence from normal behavior is

entirely reasonable to him or her. Breaking that pattern makes as much sense to some

patients as asking an attorney to stop “thinking like a lawyer” would to a seasoned

practitioner.

For specific diagnoses, the go-to reference is the Diagnostic and Statistical Manual of

Mental Disorders (DSM-5). See https://www.psychiatry.org/psychiatrists/practice/dsm

for further information. Here are a few common diagnoses that an attorney can expect

to come across in this area.

Schizophrenia. “Schizophrenia is a chronic brain disorder that affects about one

percent of the population. When schizophrenia is active, symptoms can include

delusions, hallucinations, trouble with thinking and concentration, and lack of

motivation.” https://www.psychiatry.org/patients-families/schizophrenia/what-is-

schizophrenia (checked October 2, 2017).

12

Bipolar Disorders. “Bipolar disorders are brain disorders that cause changes in a

person’s mood, energy and ability to function. Bipolar disorder is a category that

includes three different conditions — bipolar I, bipolar II and cyclothymic disorder.”

https://www.psychiatry.org/patients-families/bipolar-disorders/what-are-bipolar-disorders

(checked October 2, 2017).

Borderline Personality Disorder. “[A] pattern of instability in personal relationships,

emotional response, self-image and impulsivity. A person with borderline personality

disorder may go to great lengths to avoid abandonment (real or perceived), have

recurrent suicidal behavior, display inappropriate intense anger or have chronic feelings

of emptiness.” https://www.psychiatry.org/patients-families/personality-disorders/what-

are-personality-disorders (checked October 2, 2017).

Paranoid Personality Disorder. “[A] pattern of distrust and suspiciousness where

others’ motives are seen as mean or spiteful. People with paranoid personality disorder

often assume people will harm or deceive them and are reluctant to confide in others or

become close to them.” https://www.psychiatry.org/patients-families/personality-

disorders/what-are-personality-disorders (checked October 2, 2017).

Schizotypal Personality Disorder. “[A] pattern of acute discomfort in close

relationships, distortions in thinking or perception, and eccentric behavior. A person with

schizotypal personality disorder may have odd beliefs or magical thinking, odd or

peculiar behavior or speech, or may incorrectly attribute meanings to events.”

https://www.psychiatry.org/patients-families/personality-disorders/what-are-personality-

disorders (checked October 2, 2017).

Depression. “Depression (major depressive disorder) is a common and serious

medical illness that negatively affects how you feel, the way you think and how you act.

Fortunately, it is also treatable. Depression causes feelings of sadness and/or a loss of

interest in activities once enjoyed. It can lead to a variety of emotional and physical

problems and can decrease a person’s ability to function at work and at home.”

https://www.psychiatry.org/patients-families/depression/what-is-depression (checked

October 2, 2017).

Substance Abuse Disorder. These will sometimes appear in a patient’s record.

Patients in the community may resort to self-medication to control symptoms. This may

appear alongside non-compliance with prescribed treatment. The presence of

controlled substances in the patient’s system can complicate treatment and add

addiction issues to other mental health issues.

Again, it is important that the attorney understand the difference between a diagnosis,

the features of a disorder and the specific conduct or though patterns exhibited by the

patient.

13

11. Medications

Prior to the advent of the internet, research concerning medications would have

required keeping the large physical volume of the Physician’s Desk Reference in your

office. In years past, this commentator has kept a Physician’s Desk Reference and a

copy of Grey’s Anatomy for reference on personal injury cases.

These days, information on dosages, uses and side effects can be obtained online.

See http://www.pdr.net/.

In practice, it is often sufficient to question the treating physician. He or she should be

able to outline the currently-prescribed medications, their purposes, dosages and

potential side effects. In these cases, there are often multiple medications prescribed

both for their psychotropic characteristics and for side effect control.

12. Conclusion

Representation in mental health proceedings can be a rewarding practice area for

Indiana attorneys. It is often overlooked by attorneys due to its non-public nature, but is

an essential part of local court services. At the same time, it requires a unique skillset in

working with clients with diminished capacity and provided them their days in court.

Often, patients are willing to participate in a system when they feel their input matters

and they are given a chance to be heard.

14

Appendices

Appendix 1

Indiana Rules of Professional Conduct

Rule 1.14. Client with Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection

with a representation is diminished, whether because of minority, mental impairment or

for some other reason, the lawyer shall, as far as reasonably possible, maintain a

normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at

risk of substantial physical, financial or other harm unless action is taken and cannot

adequately act in the client's own interest, the lawyer may take reasonably necessary

protective action, including consulting with individuals or entities that have the ability to

take action to protect the client and, in appropriate cases, seeking the appointment of a

guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is

protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the

lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client,

but only to the extent reasonably necessary to protect the client's interests.

(d) This Rule is not violated if the lawyer acts in good faith to comply with the Rule.

Comment

[1] The normal client-lawyer relationship is based on the assumption that the

client, when properly advised and assisted, is capable of making decisions about

important matters. When the client is a minor or suffers from a diminished mental

capacity, however, maintaining the ordinary client-lawyer relationship may not be

possible in all respects. In particular, a severely incapacitated person may have no

power to make legally binding decisions. Nevertheless, a client with diminished capacity

often has the ability to understand, deliberate upon, and reach conclusions about

matters affecting the client's own well-being. For example, children as young as five or

six years of age, and certainly those of ten or twelve, are regarded as having opinions

that are entitled to weight in legal proceedings concerning their custody. So also, it is

recognized that some persons of advanced age can be quite capable of handling

routine financial matters while needing special legal protection concerning major

transactions.

[2] The fact that a client suffers a disability does not diminish the lawyer's

obligation to treat the client with attention and respect. Even if the person has a legal

representative, the lawyer should as far as possible accord the represented person the

status of client, particularly in maintaining communication.

15

[3] The client may wish to have family members or other persons participate in

discussions with the lawyer. When necessary to assist in the representation, the

presence of such persons generally does not affect the applicability of the attorney-

client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests

foremost and, except for protective action authorized under paragraph (b), must look to

the client, and not family members, to make decisions on the client's behalf.

[4] If a legal representative has already been appointed for the client, the lawyer

should ordinarily look to the representative for decisions on behalf of the client. In

matters involving a minor, whether the lawyer should look to the parents as natural

guardians may depend on the type of proceeding or matter in which the lawyer is

representing the minor. If the lawyer represents the guardian as distinct from the ward,

and is aware that the guardian is acting adversely to the ward's interest, the lawyer may

have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).

Taking Protective Action

[5] If a lawyer reasonably believes that a client is at risk of substantial physical,

financial or other harm unless action is taken, and that a normal client-lawyer

relationship cannot be maintained as provided in paragraph (a) because the client lacks

sufficient capacity to communicate or to make adequately considered decisions in

connection with the representation, then paragraph (b) permits the lawyer to take

protective measures deemed necessary. Such measures could include: consulting with

family members, using a reconsideration period to permit clarification or improvement of

circumstances, using voluntary surrogate decision making tools such as durable powers

of attorney or consulting with support groups, professional services, adult-protective

agencies or other individuals or entities that have the ability to protect the client. In

taking any protective action, the lawyer should be guided by such factors as the wishes

and values of the client to the extent known, the client's best interests and the goals of

intruding into the client's decision making autonomy to the least extent feasible,

maximizing client capacities and respecting the client's family and social connections.

[6] In determining the extent of the client's diminished capacity, the lawyer

should consider and balance such factors as: the client's ability to articulate reasoning

leading to a decision, variability of state of mind and ability to appreciate consequences

of a decision; the substantive fairness of a decision; and the consistency of a decision

with the known long-term commitments and values of the client. In appropriate

circumstances, the lawyer may seek guidance from an appropriate diagnostician.

[7] If a legal representative has not been appointed, the lawyer should consider

whether appointment of a guardian ad litem, conservator or guardian is necessary to

protect the client's interests. Thus, if a client with diminished capacity has substantial

property that should be sold for the client's benefit, effective completion of the

transaction may require appointment of a legal representative. In addition, rules of

procedure in litigation sometimes provide that minors or persons with diminished

16

capacity must be represented by a guardian or next friend if they do not have a general

guardian. In many circumstances, however, appointment of a legal representative may

be more expensive or traumatic for the client than circumstances in fact require.

Evaluation of such circumstances is a matter entrusted to the professional judgment of

the lawyer. In considering alternatives, however, the lawyer should be aware of any law

that requires the lawyer to advocate the least restrictive action on behalf of the client.

Disclosure of the Client's Condition

[8] Disclosure of the client's diminished capacity could adversely affect the

client's interests. For example, raising the question of diminished capacity could, in

some circumstances, lead to proceedings for involuntary commitment. Information

relating to the representation is protected by Rule 1.6. Therefore, unless authorized to

do so, the lawyer may not disclose such information. When taking protective action

pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary

disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given

the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting

with other individuals or entities or seeking the appointment of a legal representative. At

the very least, the lawyer should determine whether it is likely that the person or entity

consulted with will act adversely to the client's interests before discussing matters

related to the client. The lawyer's position in such cases is an unavoidably difficult one.

Emergency Legal Assistance

[9] In an emergency where the health, safety or a financial interest of a person

with seriously diminished capacity is threatened with imminent and irreparable harm, a

lawyer may take legal action on behalf of such a person even though the person is

unable to establish a client-lawyer relationship or to make or express considered

judgments about the matter, when the person or another acting in good faith on that

person's behalf has consulted with the lawyer. Even in such an emergency, however,

the lawyer should not act unless the lawyer reasonably believes that the person has no

other lawyer, agent or other representative available. The lawyer should take legal

action on behalf of the person only to the extent reasonably necessary to maintain the

status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes

to represent a person in such an exigent situation has the same duties under these

Rules as the lawyer would with respect to a client.

[10] A lawyer who acts on behalf of a person with seriously diminished capacity

in an emergency should keep the confidences of the person as if dealing with a client,

disclosing them only to the extent necessary to accomplish the intended protective

action. The lawyer should disclose to any tribunal involved and to any other counsel

involved the nature of his or her relationship with the person. The lawyer should take

steps to regularize the relationship or implement other protective solutions as soon as

possible. Normally, a lawyer would not seek compensation for such emergency actions

taken.

17

Appendix 2

Indiana Rules of Professional Conduct

Rule 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Comment

[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of “tribunal.” It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.

[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the

18

lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Representations by a Lawyer

[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. See also Comment [9].

19

[8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify. See also Comment [7].

Remedial Measures

[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done -- making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

[11] The disclosure of a client's false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing

20

documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer's client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

Duration of Obligation

[13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Withdrawal

[15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer's disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this Rule's duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a tribunal's permission to withdraw. In connection with a request for permission to withdraw that is premised on a client's misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.

21

Appendix 3

Indiana Code

IC 12-7-2-53 "Dangerous"

Sec. 53. "Dangerous", for purposes of IC 12-26, means a condition in which an individual as a result of mental

illness, presents a substantial risk that the individual will harm the individual or others.

[Pre-1992 Revision Citation: 16-14-9.1-1(c).]

As added by P.L.2-1992, SEC.1.

IC 12-7-2-96 "Gravely disabled"

Sec. 96. "Gravely disabled", for purposes of IC 12-26, means a condition in which an individual, as a result of

mental illness, is in danger of coming to harm because the individual:

(1) is unable to provide for that individual's food, clothing, shelter, or other essential human needs; or

(2) has a substantial impairment or an obvious deterioration of that individual's judgment, reasoning, or

behavior that results in the individual's inability to function independently.

[Pre-1992 Revision Citation: 16-14-9.1-1(b).]


IC 12-7-2-117.6 "Individual with a mental illness"

Sec. 117.6. "Individual with a mental illness", for purposes of IC 12-21-2 and IC 12-24-17, means an individual

who:

(1) has a psychiatric disorder that substantially impairs the individual's mental health; and

(2) requires care, treatment, training, or detention:

(A) because of the psychiatric disorder; or

(B) for the welfare of the individual or others of the community in which the individual resides.

As added by P.L.99-2007, SEC.45. Amended by P.L.143-2011, SEC.6.

IC 12-7-2-130 "Mental illness"

Sec. 130. "Mental illness" means the following:

(1) For purposes of IC 12-23-5, IC 12-24, and IC 12-26, a psychiatric disorder that:

(A) substantially disturbs an individual's thinking, feeling, or behavior; and

(B) impairs the individual's ability to function.

The term includes intellectual disability, alcoholism, and addiction to narcotics or dangerous drugs.

(2) For purposes of IC 12-28-4 and IC 12-28-5, a psychiatric disorder that:

(A) substantially disturbs an individual's thinking, feeling, or behavior; and

(B) impairs the individual's ability to function.

The term does not include developmental disability.

[Pre-1992 Revision Citations: subdivision (1) formerly 16-14-9.1-1(a); subdivision (2) formerly 16-13-21-1.]


http://iga.in.gov/legislative/laws/2017/ic/titles/012#12-26


http://iga.in.gov/legislative/laws/2017/ic/titles/012#12-21-2







22

Appendix 4

Indiana Code

IC 12-26-1-1 Statutes under which mentally ill and either dangerous or gravely disabled may be

involuntarily detained or committed

Sec. 1. An individual who is mentally ill and either dangerous or gravely disabled may be involuntarily detained

or committed under any of the following statutes:

(1) IC 12-26-4 (immediate detention).

(2) IC 12-26-5 (emergency detention).

(3) IC 12-26-6 (temporary commitment).

(4) IC 12-26-7 (regular commitment). [Pre-1992 Revision Citation: 16-14-9.1-3(a).]


IC 12-26-1-1.5 Persons to receive information and training concerning involuntary commitment

Sec. 1.5. The following shall, in consultation with the division of mental health and addiction, provide or be

provided information and training concerning involuntary commitment, including the use of involuntary

commitment for individuals who have a substance abuse or addiction condition:

(1) Judges, provided by the Indiana judicial center.

(2) Prosecutors, provided by the prosecuting attorneys council.

(3) Public defenders, provided by the public defender council of Indiana.


IC 12-26-1-2 Courts having jurisdiction of proceedings under article; exceptions

Sec. 2. Except as provided in sections 3 and 4 of this chapter, the following Indiana courts have jurisdiction over

a proceeding under this article:

(1) A court having probate jurisdiction.

(2) A superior court in a county in which the circuit court has exclusive probate jurisdiction.

(3) A mental health division of a superior court to the extent the mental health division has jurisdiction

under IC 33-33-49. [Pre-1992 Revision Citations: subdivision (1) formerly 16-14-9.1-5(a) part; subdivision (2) formerly 16-14-9.1-5(a) part; subdivision (3)

formerly 16-14-9.1-5(c).] As added by P.L.2-1992, SEC.20. Amended by P.L.16-1995, SEC.4; P.L.98-2004, SEC.94; P.L.201-2011, SEC.9.

IC 12-26-1-3 Hearing required to be held by IC 35-36-2-4

Sec. 3. A court that conducted the trial has jurisdiction over a hearing required to be held by IC 35-36-2-4. The

court retains jurisdiction over the individual held under IC 35-36-2-4 until the completion of the commitment

hearing. After completion of the commitment hearing, jurisdiction is transferred to a court having jurisdiction under

section 2 of this chapter and all subsequent petitions or motions shall be filed with the court to which the proceeding

is transferred. The file of the commitment hearing also shall be transferred from the committing court to the court

having probate jurisdiction. [Pre-1992 Revision Citations: 16-14-9.1-5(b); 16-14-9.1-9(a).]


IC 12-26-1-4 Juvenile court; placement only in child caring institutions; transfer of proceedings

Sec. 4. (a) A juvenile court has concurrent jurisdiction over proceedings under this article that involve a child.

(b) The juvenile court may not commit or temporarily place a child under this article in a facility other than a

child caring institution. If the juvenile court determines that commitment or temporary placement of a child in

another facility is necessary, the juvenile court shall transfer the proceeding to a court having probate jurisdiction. [Pre-1992 Revision Citation: 16-14-9.1-5(d).]


IC 12-26-1-5 Commitment proceedings; acquisition and retention of jurisdiction

Sec. 5. (a) If a commitment proceeding is begun under IC 12-26-3-5, IC 12-26-6-2(a)(1), or IC 12-26-6-2(a)(3),

the court acquires jurisdiction over the individual alleged to have a mental illness by service of summons on the

individual according to the Indiana Rules of Trial Procedure or by entry of an appearance by the individual.






http://iga.in.gov/legislative/laws/2017/ic/titles/012#35-36-2-4





23

(b) If an individual is being held under IC 12-26-6-2(a)(2), the court retains jurisdiction over the individual by the

court's order for continued detention. [Pre-1992 Revision Citation: 16-14-9.1-9(a).]


IC 12-26-1-6 Conduct of judicial proceedings; rules of procedure

Sec. 6. Except as otherwise provided, a judicial proceeding under this article shall be conducted as other civil

proceedings according to the Indiana Rules of Trial Procedure. [Pre-1992 Revision Citation: 16-14-9.1-13.]


IC 12-26-1-7 Computation of time; application of section

Sec. 7. (a) This section does not apply in the following statutes:

(1) IC 12-26-4.

(2) IC 12-26-11.

(3) IC 12-26-12.

(b) This section does not apply to computation of a period during which an individual may be detained under this

article.

(c) In computing time under this article, Saturdays, Sundays, and legal holidays are not included in the

computation if the time prescribed is less than fourteen (14) days. [Pre-1992 Revision Citations: 16-14-9.1-2(b); 16-14-9.1-2(c); 16-14-9.1-7(a); 16-14-9.1-7(e); 16-14-9.1-9(b); 16-14-9.1-9(j); 16-14-9.1-

10(c); 16-14-9.1-10(g).] As added by P.L.2-1992, SEC.20.

IC 12-26-1-8 Proceedings under IC 12-26-3-5, IC 12-26-6, or IC 12-26-7; detention of individual

Sec. 8. Upon the filing of a petition for commitment under IC 12-26-6 or IC 12-26-7 or the filing of a report

under IC 12-26-3-5, the individual may be detained in an appropriate facility:

(1) by an order of the court pending a hearing; or

(2) pending an order of the court under:

(A) IC 12-26-3-6;

(B) IC 12-26-5-10; or

(C) IC 12-26-5-11. [Pre-1992 Revision Citations: 16-14-9.1-2(c); 16-14-9.1-3; 16-14-9.1-7(e).]


IC 12-26-1-9 Appeals; persons entitled to take; manner of taking

Sec. 9. (a) In a proceeding involving involuntary detention or commitment under this article, appeals from the

final orders or judgments of the court of original jurisdiction may be taken by any of the following:

(1) The individual who is the subject of the proceeding.

(2) A petitioner in the proceeding.

(3) An aggrieved person.

(b) An appeal must be taken in the same manner as any other civil case according to the Indiana Rules of Trial

and Appellate Procedure. [Pre-1992 Revision Citation: 16-14-9.1-6.]


IC 12-26-1-10 Rules

Sec. 10. Each division shall adopt rules under IC 4-22-2 to administer this article. [Pre-1992 Revision Citation: 16-14-9.1-4 part.]


IC 12-26-1-11 Forms

Sec. 11. Each division shall prescribe the forms that must be used to administer this article. [Pre-1992 Revision Citation: 16-14-9.1-4 part.]


IC 12-26-2 Chapter 2. Rights of Persons 12-26-2-1Habeas corpus













24

12-26-2-2Notice of hearings; receipt of copies of petitions or orders; presence at hearings; application of section

12-26-2-3Testimony and witnesses; application of section

12-26-2-4Change of judge; venue not to change; application of section

12-26-2-5Representation by counsel; appointment; proof required by petitioner

12-26-2-6Participation in proceedings or assisting in detention or care of individual; immunity from liability

12-26-2-7Child's advocate; immunity from civil liability

12-26-2-8Detention or commitment; rights not affected

12-26-2-9Refusal to admit; transfer to division

IC 12-26-2-1 Habeas corpus

Sec. 1. This article does not limit or restrict the right of a person to apply to an appropriate court for a writ of

habeas corpus. [Pre-1992 Revision Citation: 16-14-9.1-14.]


IC 12-26-2-2 Notice of hearings; receipt of copies of petitions or orders; presence at hearings; application

of section

Sec. 2. (a) This section applies under the following statutes:

(1) IC 12-26-6.

(2) IC 12-26-7.

(3) IC 12-26-12.

(4) IC 12-26-15.

(b) The individual alleged to have a mental illness has the following rights:

(1) To receive adequate notice of a hearing so that the individual or the individual's attorney can prepare for

the hearing.

(2) To receive a copy of a petition or an order relating to the individual.

(3) To be present at a hearing relating to the individual. The individual's right under this subdivision is subject

to the court's right to do the following:

(A) Remove the individual if the individual is disruptive to the proceedings.

(B) Waive the individual's presence at a hearing if the individual's presence would be injurious to the

individual's mental health or well-being.

(4) To be represented by counsel. [Pre-1992 Revision Citation: 16-14-9.1-9(e).]


IC 12-26-2-3 Testimony and witnesses; application of section


(1) IC 12-26-6.

(2) IC 12-26-7.

(3) IC 12-26-12.

(4) IC 12-26-15.

(b) The individual alleged to have a mental illness, each petitioner, and all other interested individuals shall be

given an opportunity to appear at hearings and to testify.

(c) The individual alleged to have a mental illness and each petitioner may present and cross-examine witnesses

at hearings.

(d) The court may receive the testimony of any individual. [Pre-1992 Revision Citation: 16-14-9.1-9(d).]


IC 12-26-2-4 Change of judge; venue not to change; application of section


(1) IC 12-26-6.

(2) IC 12-26-7.

(3) IC 12-26-12.

(4) IC 12-26-15.

(b) The individual alleged to have a mental illness and a petitioner:

(1) has a right to a change of judge; and

(2) is not entitled to a change of venue from the county.





















25

[Pre-1992 Revision Citation: 16-14-9.1-9(f).] As added by P.L.2-1992, SEC.20. Amended by P.L.99-2007, SEC.125.

IC 12-26-2-5 Representation by counsel; appointment; proof required by petitioner


(1) IC 12-26-6.

(2) IC 12-26-7.

(3) IC 12-26-12.

(4) IC 12-26-15.

(b) A petitioner may be represented by counsel.

(c) The court may appoint counsel for a petitioner upon a showing of the petitioner's indigency and the court shall

pay for such counsel if appointed.

(d) A petitioner, including a petitioner who is a health care provider under IC 16-18-2-295(b), in the petitioner's

individual capacity or as a corporation is not required to be represented by counsel. If a petitioner who is a

corporation elects not to be represented by counsel, the individual representing the corporation at the commitment

hearing must present the court with written authorization from:

(1) an officer;

(2) a director;

(3) a principal; or

(4) a manager;

of the corporation that authorizes the individual to represent the interest of the corporation in the proceedings.

(e) The petitioner is required to prove by clear and convincing evidence that:

(1) the individual is mentally ill and either dangerous or gravely disabled; and

(2) detention or commitment of that individual is appropriate. [Pre-1992 Revision Citation: 16-14-9.1-9(g).]

As added by P.L.2-1992, SEC.20. Amended by P.L.1-1993, SEC.152; P.L.2-1995, SEC.60; P.L.6-1995, SEC.21;

P.L.256-1999, SEC.2; P.L.14-2000, SEC.33; P.L.1-2007, SEC.126.

IC 12-26-2-6 Participation in proceedings or assisting in detention or care of individual; immunity from

liability

Sec. 6. (a) A person who without malice, bad faith, or negligence acts according to this article and:

(1) participates in proceedings for the detention or commitment of an individual; or

(2) assists in the detention, care, and treatment of an individual alleged or adjudged to have a mental illness;

is immune from any civil or criminal liability that might otherwise be imposed as a result of the person's actions.

(b) The immunity provided by this section does not permit a person to do either of the following:

(1) Physically abuse an individual.

(2) Deprive an individual of a personal or civil right except according to this article. [Pre-1992 Revision Citation: 16-14-9.1-12.]


IC 12-26-2-7 Child's advocate; immunity from civil liability

Sec. 7. Except for gross misconduct, if a child's advocate performs the advocate's duties in good faith, the

advocate is immune from any civil liability that may occur as a result of the advocate's performance of duties. [Pre-1992 Revision Citation: 16-14-9.1-5.5(f).]


IC 12-26-2-8 Detention or commitment; rights not affected

Sec. 8. (a) Detention or commitment of an individual under this article does not deprive the individual of any of

the following:

(1) The right to do the following:

(A) Dispose of property.

(B) Execute instruments.

(C) Make purchases.

(D) Enter into contracts.

(E) Give testimony in a court of law.

(F) Vote.

(2) A right of a citizen not listed in subdivision (1).






26

(b) A procedure is not required for restoration of rights of citizenship of an individual detained or committed

under this article. [Pre-1992 Revision Citation: 16-14-9.1-18.]


IC 12-26-2-9 Refusal to admit; transfer to division

Sec. 9. (a) The superintendent of a state institution may decline to admit an individual if the superintendent

determines that there is not available adequate space, treatment staff, and treatment services appropriate to the needs

of the individual.

(b) If an individual is refused admission under subsection (a), the commitment shall be transferred to the

appropriate division. The division shall make arrangements for the individual's admission to an appropriate facility. [Pre-1992 Revision Citations: 16-14-9.1-3(b); 16-14-9.1-3(c).]


IC 12-26-3 Chapter 3. Voluntary Treatment 12-26-3-1Admission by facility superintendent or by attending physician

12-26-3-2Application by parent or legal guardian

12-26-3-3Discharge by facility superintendent or by attending physician; grounds

12-26-3-4Written request for release; time for release

12-26-3-5Refusal to release individual; grounds; written report to court

12-26-3-6Receipt by court of written report; setting preliminary hearing; ordering final hearing

12-26-3-7Preliminary hearing; introduction of physician's statement; probable cause finding; discharge or commitment

12-26-3-8Final hearing held after preliminary hearing; testimony of examining physician; waiver

12-26-3-9Temporary or regular commitment

IC 12-26-3-1 Admission by facility superintendent or by attending physician

Sec. 1. The superintendent of a facility or an individual's attending physician may admit an Indiana resident who:

(1) has a mental illness or has symptoms of mental illness; and

(2) makes an appropriate application;

for observation, diagnosis, care, or treatment. [Pre-1992 Revision Citation: 16-14-9.1-2(a) part.]


IC 12-26-3-2 Application by parent or legal guardian

Sec. 2. (a) If an individual is less than eighteen (18) years of age, an application under this chapter may be made

by the individual's parent or legal guardian.

(b) If an individual is at least eighteen (18) years of age and has a legal guardian, that individual may not be

admitted by the individual's legal guardian to a state institution under this chapter. [Pre-1992 Revision Citation: 16-14-9.1-2(a) part.]


IC 12-26-3-3 Discharge by facility superintendent or by attending physician; grounds

Sec. 3. The superintendent or an individual's attending physician may discharge an individual admitted under this

chapter if the superintendent or the attending physician determines that:

(1) care in the facility is not necessary; or

(2) the discharge would contribute to the most effective use of the facility for the care and treatment of

individuals with a mental illness. [Pre-1992 Revision Citation: 16-14-9.1-2(b) part.]


IC 12-26-3-4 Written request for release; time for release

Sec. 4. Except as provided in section 5 of this chapter, an individual who has been admitted to a facility under

this chapter shall be released within twenty-four (24) hours of a written request for release made to the

superintendent or the individual's attending physician by:

(1) the individual; or

(2) if the individual is less than eighteen (18) years of age, the parent or guardian who applied for the

individual's admission to the facility. [Pre-1992 Revision Citation: 16-14-9.1-2(b) part.]











27

IC 12-26-3-5 Refusal to release individual; grounds; written report to court

Sec. 5. (a) The superintendent or the attending physician is not required to release an individual under section 4

of this chapter if the superintendent or the attending physician has reason to believe the individual is mentally ill and

either dangerous or gravely disabled.

(b) If the superintendent or the attending physician makes a determination under subsection (a), the

superintendent or the attending physician must make a written report to a court:

(1) that has jurisdiction;

(2) in the county:

(A) of the residence of the individual; or

(B) where the facility is located; and

(3) not later than five (5) days of receiving the request made under section 4 of this chapter.

(c) A report under subsection (b) must:

(1) state that there is probable cause to believe that the individual is mentally ill and either dangerous or

gravely disabled;

(2) state that the individual requires continuing care and treatment in the facility; and

(3) request a hearing on the report. [Pre-1992 Revision Citation: 16-14-9.1-2(b) part.]


IC 12-26-3-6 Receipt by court of written report; setting preliminary hearing; ordering final hearing

Sec. 6. The court shall, within two (2) days from the date of receiving a report made under section 5 of this

chapter, do either of the following:

(1) Set a preliminary hearing to determine if there is probable cause to believe that the individual is:

(A) mentally ill and either dangerous or gravely disabled; and

(B) in need of temporary or regular commitment.

(2) Order a final hearing to be held within two (2) days of the order to determine if the individual is:


(B) in need of temporary or regular commitment. [Pre-1992 Revision Citation: 16-14-9.1-2(c) part.]


IC 12-26-3-7 Preliminary hearing; introduction of physician's statement; probable cause finding;

discharge or commitment

Sec. 7. (a) A physician's statement may be introduced into evidence at the preliminary hearing without the

presence of the physician.

(b) A finding of probable cause may not be entered at the preliminary hearing unless there is oral testimony:

(1) subject to cross-examination;

(2) of at least one (1) witness who:

(A) has personally observed the behavior of the individual; and

(B) will testify as to facts supporting a finding that there is probable cause to believe that the individual is in

need of temporary or regular commitment.

(c) If after the preliminary hearing the court does not find probable cause, the individual shall be discharged

immediately.

(d) If after the preliminary hearing the court finds probable cause to believe that the individual is in need of

temporary or regular commitment, the court shall order the detention of the individual in an appropriate facility

pending a final hearing. [Pre-1992 Revision Citation: 16-14-9.1-2(c) part.]


IC 12-26-3-8 Final hearing held after preliminary hearing; testimony of examining physician; waiver

Sec. 8. (a) If the court sets a preliminary hearing under section 6(1) of this chapter, a final hearing shall be held

not later than ten (10) days after the date of the preliminary hearing.

(b) At the final hearing, an individual may not be found in need of temporary or regular commitment unless at

least one (1) physician who has personally examined the individual testifies at the hearing.

28

(c) The testimony required by subsection (b) may be waived by the individual if the waiver is voluntarily and

knowingly given. [Pre-1992 Revision Citations: subsection (a) formerly 16-14-9.1-2(c) part; subsection (b) formerly 16-14-9.1-2(d).]


IC 12-26-3-9 Temporary or regular commitment

Sec. 9. (a) If an individual has not previously been the subject of a commitment proceeding, the court may only

order temporary commitment.

(b) If an individual has previously been the subject of a commitment proceeding, the court may order a regular

commitment if a longer period of treatment is warranted. [Pre-1992 Revision Citation: 16-14-9.1-2(e).]


IC 12-26-4 Chapter 4. Immediate Detention 12-26-4-1Law enforcement officers; authority to apprehend, transport, and charge an individual with a mental illness

12-26-4-1.5Court's authority to order an individual transported for psychological evaluation

12-26-4-2Law enforcement officers; written statement of reasonable grounds

12-26-4-3Law enforcement officers; written statement of reasonable grounds; filing

12-26-4-4Emergency treatment

12-26-4-5Length of detention

12-26-4-6Detaining individual for more than 24 hours; emergency detention application

12-26-4-7Discharge

12-26-4-8Detention in addition to detention under IC 12-26-5

12-26-4-9County required to pay certain costs if an individual is determined not to be mentally ill

IC 12-26-4-1 Law enforcement officers; authority to apprehend, transport, and charge an individual with

a mental illness

Sec. 1. A law enforcement officer, having reasonable grounds to believe that an individual has a mental illness, is

either dangerous or gravely disabled, and is in immediate need of hospitalization and treatment, may do the

following:

(1) Apprehend and transport the individual to the nearest appropriate facility. The individual may not be

transported to a state institution.

(2) Charge the individual with an offense if applicable. [Pre-1992 Revision Citation: 16-14-9.1-6.5(a) part.]

As added by P.L.2-1992, SEC.20. Amended by P.L.40-1994, SEC.55; P.L.99-2007, SEC.129; P.L.4-2013, SEC.1.

IC 12-26-4-1.5 Court's authority to order an individual transported for psychological evaluation

Sec. 1.5. If a court has reasonable grounds to believe that an individual:

(1) has a mental illness;

(2) is either dangerous or gravely disabled; and

(3) is in immediate need of hospitalization and treatment;

the court may order a law enforcement officer to transport the individual to the nearest appropriate facility for a

preliminary medical and psychological evaluation. The individual may not be transported to a state institution.


IC 12-26-4-2 Law enforcement officers; written statement of reasonable grounds

Sec. 2. A law enforcement officer who transports an individual to a facility under section 1 of this chapter shall

submit to the facility a written statement containing the basis for the officer's conclusion that reasonable grounds

exist under this chapter. [Pre-1992 Revision Citation: 16-14-9.1-6.5(a) part.]


IC 12-26-4-3 Law enforcement officers; written statement of reasonable grounds; filing

Sec. 3. The statement required by section 2 of this chapter shall be filed with both of the following:

(1) The individual's records at the facility.

(2) The appropriate court if action relating to any charges filed by the officer against the individual is pursued. [Pre-1992 Revision Citation: 16-14-9.1-6.5(a) part.]



http://iga.in.gov/legislative/laws/2017/ic/titles/012#12-26-4-1.5










29

IC 12-26-4-4 Emergency treatment

Sec. 4. The superintendent of the facility or a physician may furnish emergency treatment necessary to preserve

the health and safety of the individual detained. [Pre-1992 Revision Citation: 16-14-9.1-6.5(a) part.]


IC 12-26-4-5 Length of detention

Sec. 5. Except as provided in section 6 of this chapter, an individual may not be detained under this chapter for

more than twenty-four (24) hours from the time of admission to the facility. [Pre-1992 Revision Citation: 16-14-9.1-6.5(b) part.]


IC 12-26-4-6 Detaining individual for more than 24 hours; emergency detention application

Sec. 6. If the superintendent or the attending physician believes the individual should be detained for more than

twenty-four (24) hours from time of admission to the facility, the superintendent or the physician must have an

application filed for emergency detention under IC 12-26-5 immediately upon the earlier of the following:

(1) A judge becomes available.

(2) Within seventy-two (72) hours of admission to the facility. [Pre-1992 Revision Citation: 16-14-9.1-6.5(b) part.]


IC 12-26-4-7 Discharge

Sec. 7. An individual detained under this chapter shall be discharged if either the attending physician or

superintendent believes detention is no longer necessary. [Pre-1992 Revision Citation: 16-14-9.1-6.5(b) part.]


IC 12-26-4-8 Detention in addition to detention under IC 12-26-5

Sec. 8. A period of detention under this chapter is in addition to a period of detention under IC 12-26-5. [Pre-1992 Revision Citation: 16-14-9.1-6.5(c).]


IC 12-26-4-9 County required to pay certain costs if an individual is determined not to be mentally ill

Sec. 9. If it is determined that there were not reasonable grounds to believe that an individual had a mental illness

and was either dangerous or gravely disabled when taken into custody and transported to a facility to be detained

under section 1.5 of this chapter, the costs of transportation to the facility and care and maintenance in the facility

during the period of detention shall be paid by the county in which the individual was taken into custody.


IC 12-26-5 Chapter 5. Emergency Detention 12-26-5-172 hour detention; written application; contents

12-26-5-2Judicial officer; endorsement of application; police officer authorized to take individual into custody; transportation to facility

12-26-5-3Examination and treatment of detained individual

12-26-5-4Determination during detention that probable cause does not exist; report

12-26-5-5Written report to court

12-26-5-6Written report; no probable cause; discharge; record

12-26-5-7Written report; probable cause; recommendations; hearing; detention pending hearing

12-26-5-8Written report; consideration and action by court; time

12-26-5-9Written report; action by court; release of individual; preliminary or final hearing ordered

12-26-5-10Preliminary hearing; introduction of physician's statement; probable cause finding; discharge; detention pending final hearing

12-26-5-11Final hearing; time; testimony of examining physician; waiver; temporary or permanent commitment

12-26-5-12Determination of absence of probable cause when individual taken into custody; transportation, care, and maintenance costs

IC 12-26-5-1 72 hour detention; written application; contents

Sec. 1. (a) An individual may be detained in a facility for not more than seventy-two (72) hours under this

chapter, excluding Saturdays, Sundays, and legal holidays, if a written application for detention is filed with the

facility. The individual may not be detained in a state institution unless the detention is instituted by the state

institution.

(b) An application under subsection (a) must contain both of the following:















30

(1) A statement of the applicant's belief that the individual is:


(B) in need of immediate restraint.

(2) A statement by at least one (1) physician that, based on:

(A) an examination; or

(B) information given the physician;

the individual may be mentally ill and either dangerous or gravely disabled. [Pre-1992 Revision Citation: 16-14-9.1-7(a) part.]

As added by P.L.2-1992, SEC.20. Amended by P.L.1-1993, SEC.153; P.L.40-1994, SEC.56.

IC 12-26-5-2 Judicial officer; endorsement of application; police officer authorized to take individual into

custody; transportation to facility

Sec. 2. (a) If a judicial officer authorized to issue a warrant for arrest in the county in which the individual is

present endorses an application made under section 1 of this chapter, the application authorizes a police officer to

take the individual into custody and transport the individual to a facility.

(b) The expense of transportation under this section shall be paid by the county in which the individual is present. [Pre-1992 Revision Citation: 16-14-9.1-7(a) part.]


IC 12-26-5-3 Examination and treatment of detained individual

Sec. 3. An individual detained under this chapter may be examined and given emergency treatment necessary to

do the following:

(1) Preserve the health and safety of the individual.

(2) Protect other persons and property. [Pre-1992 Revision Citation: 16-14-9.1-7(a) part.]


IC 12-26-5-4 Determination during detention that probable cause does not exist; report

Sec. 4. If during a detention period under this chapter the superintendent or the attending physician determines

that there is not probable cause to believe the individual is mentally ill and either dangerous or gravely disabled, a

report shall be made under section 5 of this chapter. [Pre-1992 Revision Citation: 16-14-9.1-7(d) part.]


IC 12-26-5-5 Written report to court

Sec. 5. Before the end of a detention period under this chapter, the superintendent of the facility or the

individual's attending physician shall make a written report to the court. The report must contain both of the

following:

(1) A statement that the individual has been examined.

(2) A statement whether there is probable cause to believe that the individual:

(A) is mentally ill and either dangerous or gravely disabled; and

(B) requires continuing care and treatment. [Pre-1992 Revision Citation: 16-14-9.1-7(b).]


IC 12-26-5-6 Written report; no probable cause; discharge; record

Sec. 6. (a) If a report made under section 5 of this chapter states there is not probable cause, the individual shall

be discharged from the facility.

(b) The report shall be made part of the individual's record. [Pre-1992 Revision Citation: 16-14-9.1-7(d) part.]


IC 12-26-5-7 Written report; probable cause; recommendations; hearing; detention pending hearing

Sec. 7. If a report made under section 5 of this chapter states there is probable cause, the report shall recommend

both of the following:

(1) That the court hold a hearing to determine whether:

(A) the individual is mentally ill and either dangerous or gravely disabled; and

31

(B) there is a need for continuing involuntary detention.

(2) That the individual be detained in the facility pending the hearing. [Pre-1992 Revision Citation: 16-14-9.1-7(c).]


IC 12-26-5-8 Written report; consideration and action by court; time

Sec. 8. The court shall consider and act upon a report described in section 7 of this chapter within twenty-four

(24) hours of receiving the report. [Pre-1992 Revision Citation: 16-14-9.1-7(e) part.]


IC 12-26-5-9 Written report; action by court; release of individual; preliminary or final hearing ordered

Sec. 9. (a) After receiving a report described in section 7 of this chapter, the court may do any of the following:

(1) Order the individual released.

(2) Order the individual's continued detention pending a preliminary hearing. The purpose of a hearing under

this subdivision is to determine if there is probable cause to believe that the individual is:



(3) Order a final hearing. The purpose of a hearing ordered under this subdivision is to determine if the

individual is:



(b) A hearing ordered under subsection (a) must be held not later than two (2) days after the order. [Pre-1992 Revision Citation: 16-14-9.1-7(e) part.]


IC 12-26-5-10 Preliminary hearing; introduction of physician's statement; probable cause finding;

discharge; detention pending final hearing

Sec. 10. (a) A physician's statement may be introduced into evidence at the preliminary hearing held under

section 9(a)(2) of this chapter without the presence of the physician.

(b) A finding of probable cause may not be entered at a preliminary hearing unless there is oral testimony:

(1) subject to cross-examination; and

(2) of at least one (1) witness who:

(A) has personally observed the behavior of the individual; and

(B) will testify to facts supporting a finding that there is probable cause to believe that the individual is in

need of temporary or regular commitment.

(c) At the conclusion of the preliminary hearing, if the court does not find probable cause, the individual shall be

immediately discharged.

(d) If the court finds at the conclusion of the preliminary hearing probable cause to believe that the individual

needs temporary or regular commitment, the court shall order the detention of the individual in an appropriate

facility pending a final hearing. [Pre-1992 Revision Citation: 16-14-9.1-7(e) part.]


IC 12-26-5-11 Final hearing; time; testimony of examining physician; waiver; temporary or permanent

commitment

Sec. 11. (a) A final hearing required by section 10(d) of this chapter shall be held within ten (10) days of the date

of the preliminary hearing.

(b) At a final hearing, an individual may not be found in need of temporary or regular commitment unless at least

one (1) physician who has personally examined the individual testifies at the hearing. This testimony may be waived

by the individual if the waiver is voluntarily and knowingly given.

(c) If an individual has not previously been the subject of a commitment proceeding, the court may order only a

temporary commitment.

(d) If an individual has previously been the subject of a commitment proceeding, the court may order a regular

commitment if a longer period of treatment is warranted. [Pre-1992 Revision Citation: 16-13-9.1-7(e) part.]


32

IC 12-26-5-12 Determination of absence of probable cause when individual taken into custody;

transportation, care, and maintenance costs

Sec. 12. If it is determined that there was not probable cause to believe that an individual had a mental illness and

was dangerous when taken into custody and transported to the facility to be detained, the costs of transportation to

and care and maintenance in the facility during the period of detention shall be paid by the county in which the

individual was taken into custody. [Pre-1992 Revision Citation: 16-14-9.1-7(f).]


IC 12-26-6 Chapter 6. Temporary Commitment 12-26-6-190 day commitment of individuals who are mentally ill and either dangerous or gravely disabled

12-26-6-2Methods by which commitment proceedings may be begun

12-26-6-3Notice of hearing

12-26-6-4Hearing date

12-26-6-5Hearing site

12-26-6-6Appointment of physician; examination of individual; report

12-26-6-7Report; dismissal of petition

12-26-6-8Order of commitment

12-26-6-9Discharge before end of commitment period; notification of court

12-26-6-10Additional commitment period; proceedings

12-26-6-11Report required of facility superintendent or attending physician before end of commitment period

IC 12-26-6-1 90 day commitment of individuals who are mentally ill and either dangerous or gravely

disabled

Sec. 1. An individual who is alleged to be mentally ill and either dangerous or gravely disabled may be

committed to a facility for not more than ninety (90) days under this chapter. [Pre-1992 Revision Citation: 16-14-9.1-8 part.]


IC 12-26-6-2 Methods by which commitment proceedings may be begun

Sec. 2. (a) A commitment under this chapter may be begun by any of the following methods:

(1) Upon request of the superintendent under IC 12-26-3-5.

(2) An order of the court having jurisdiction over the individual following emergency detention.

(3) Filing a petition with a court having jurisdiction in the county:

(A) of residence of the individual; or

(B) where the individual may be found.

(b) A petitioner under subsection (a)(3) must be at least eighteen (18) years of age.

(c) A petition under subsection (a)(3) must include a physician's written statement stating both of the following:

(1) The physician has examined the individual within the past thirty (30) days.

(2) The physician believes the individual is:


(B) in need of custody, care, or treatment in an appropriate facility. [Pre-1992 Revision Citation: 16-14-9.1-8 part.]


IC 12-26-6-3 Notice of hearing

Sec. 3. (a) Notice of a hearing under this chapter shall be given to all of the following:

(1) The individual.

(2) The petitioner.

(3) The superintendent or the chief executive officer of a facility having care or custody of the individual.

(b) The notice required by subsection (a) must state the time, place, and date of the hearing. [Pre-1992 Revision Citation: 16-14-9.1-9(b) part.]


IC 12-26-6-4 Hearing date

Sec. 4. (a) Within three (3) days after a proceeding is begun under this chapter, the court shall enter an order

setting a hearing date.













33

(b) If the proceeding was begun under section 2(a)(3) of this chapter, the hearing date set under subsection (a)

must be more than one (1) day but less than fourteen (14) days from the date of notice.

(c) If the proceeding was begun under section 2(a)(1) or 2(a)(2) of this chapter, the hearing shall be held within

ten (10) days after issuance of the order. [Pre-1992 Revision Citation: 16-14-9.1-9(b) part.]


IC 12-26-6-5 Hearing site

Sec. 5. The court may hold the hearing at a facility or other suitable place not likely to have a harmful effect on

the individual's health or well-being. [Pre-1992 Revision Citation: 16-14-9.1-9(b) part.]


IC 12-26-6-6 Appointment of physician; examination of individual; report

Sec. 6. The court may appoint a physician to do the following:

(1) Examine the individual.

(2) Report, before the hearing, the physician's opinion as to the following:

(A) Whether the individual is mentally ill and either dangerous or gravely disabled.

(B) Whether the individual needs temporary commitment to a facility for diagnosis, care, and treatment. [Pre-1992 Revision Citation: 16-14-9.1-9(c) part.]


IC 12-26-6-7 Report; dismissal of petition

Sec. 7. If a report made under section 6 of this chapter is that the individual is not either dangerous or gravely

disabled, the court may terminate the proceedings and dismiss the petition. Otherwise, the hearing shall proceed as

scheduled or as continued by the court. [Pre-1992 Revision Citation: 16-14-9.1-9(c) part.]


IC 12-26-6-8 Order of commitment

Sec. 8. (a) If, upon the completion of the hearing and consideration of the record, the court finds that the

individual is mentally ill and either dangerous or gravely disabled, the court may order the individual to:

(1) be committed to an appropriate facility; or

(2) enter an outpatient treatment program under IC 12-26-14 for a period of not more than ninety (90) days.

(b) The court's order must require that the superintendent of the facility or the attending physician file a treatment

plan with the court within fifteen (15) days of the individual's admission to the facility under a commitment order.

(c) If the commitment ordered under subsection (a) is to a state institution administered by the division of mental

health and addiction, the record of commitment proceedings must include a report from a community mental health

center stating both of the following:

(1) That the community mental health center has evaluated the individual.

(2) That commitment to a state institution administered by the division of mental health and addiction under

this chapter is appropriate.

(d) The physician who makes the statement required by section 2(c) of this chapter may be affiliated with the

community mental health center that submits to the court the report required by subsection (c).

(e) If the commitment is of an adult to a research bed at Larue D. Carter Memorial Hospital as set forth in IC 12-

21-2-3, the report from a community mental health center is not required.

(f) If a commitment ordered under subsection (a) is to a state institution administered by the division of disability

and rehabilitative services, the record of commitment proceedings must include a report from a service coordinator

employed by the division of disability and rehabilitative services stating that, based on a diagnostic assessment of

the individual, commitment to a state institution administered by the division of disability and rehabilitative services

under this chapter is appropriate.

(g) If the court makes a finding under subsection (a) (including a finding in reference to a child under IC 31-37-

18-3), the court shall transmit any information required by the division of state court administration to the division

of state court administration for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-

24-6-3. [Pre-1992 Revision Citation: 16-14-9.1-9(h).]






http://iga.in.gov/legislative/laws/2017/ic/titles/012#35-47-2.5-2.5



34


P.L.215-2001, SEC.72; P.L.141-2006, SEC.67; P.L.110-2009, SEC.7.

IC 12-26-6-9 Discharge before end of commitment period; notification of court

Sec. 9. (a) Unless the court has entered an order under IC 12-26-12-1, the superintendent or the attending

physician may discharge the individual before the end of the commitment period if the superintendent or attending

physician determines that the individual is not mentally ill and either dangerous or gravely disabled.

(b) If an individual is discharged under subsection (a), the superintendent or the attending physician shall notify

the court, and the court shall enter an order terminating the commitment. [Pre-1992 Revision Citation: 16-14-9.1-9(i).]


IC 12-26-6-10 Additional commitment period; proceedings

Sec. 10. (a) The period of commitment of an individual under this chapter may be extended for one (1) additional

period of not more than ninety (90) days through a proceeding under this section.

(b) A proceeding under this section must be begun before the end of the first period of commitment.

(c) A proceeding under this section may be begun by filing with the court a report by the attending physician or

superintendent that states that the individual continues to be:

(1) mentally ill and either dangerous or gravely disabled; and

(2) in need of continuing custody, care, or treatment in the facility for an additional period of not more than

ninety (90) days.

(d) Upon receiving a report under subsection (c), the court shall set a hearing on the report.

(e) The hearing required by subsection (d) must be held before the end of the current commitment period.

(f) Notice of the hearing required by subsection (d) shall be given to the committed individual and all other

interested individuals at least five (5) days before the hearing date.

(g) A committed individual's rights and a petitioner's rights and hearing procedures are the same as those

provided for the first period of commitment.

(h) If at the completion of the hearing and the consideration of the record the individual is found to be:

(1) mentally ill and either dangerous or gravely disabled; and

(2) in need of continuing custody, care, or treatment in the facility;

the court may order the individual's continuing custody, care, or treatment in the facility for one (1) additional period

of not more than ninety (90) days. [Pre-1992 Revision Citation: 16-14-9.1-9(j).]


IC 12-26-6-11 Report required of facility superintendent or attending physician before end of commitment

period

Sec. 11. At least twenty (20) days before the end of the first or second temporary commitment period, the

superintendent of the facility or the attending physician shall make a report to the court that states all of the

following:

(1) The mental condition of the individual.

(2) Whether the individual is dangerous or gravely disabled.

(3) Whether the individual needs continuing care and treatment in a facility for a period of more than ninety

(90) days. [Pre-1992 Revision Citation: 16-14-9.1-10(a) part.]


IC 12-26-7 Chapter 7. Regular Commitment 12-26-7-1Application of chapter

12-26-7-2Application of section; commitment of persons apparently suffering from chronic mental illness; initiation of proceedings;

petition

12-26-7-3Petition; physician's written statement; reports

12-26-7-4Hearing date; rights of subject individual; hearing procedures

12-26-7-5Finding that individual is mentally ill and either dangerous or gravely disabled; order for treatment; duration of order; transmittal

of information to NICS

IC 12-26-7-1 Application of chapter

Sec. 1. This chapter applies to a proceeding for commitment of an individual:







35

(1) alleged to be mentally ill and either dangerous or gravely disabled; and

(2) whose commitment is reasonably expected to require custody, care, or treatment in a facility for more than

ninety (90) days. [Pre-1992 Revision Citation: 16-14-9.1-10(a) part.]


IC 12-26-7-2 Application of section; commitment of persons apparently suffering from chronic mental

illness; initiation of proceedings; petition

Sec. 2. (a) This section does not apply to the commitment of an individual if the individual has previously been

committed under IC 12-26-6.

(b) A proceeding for the commitment of an individual who appears to be suffering from a chronic mental illness

may be begun by filing with a court having jurisdiction a written petition by any of the following:

(1) A health officer.

(2) A police officer.

(3) A friend of the individual.

(4) A relative of the individual.

(5) The spouse of the individual.

(6) A guardian of the individual.

(7) The superintendent of a facility where the individual is present.

(8) A prosecuting attorney in accordance with IC 35-36-2-4.

(9) A prosecuting attorney or the attorney for a county office if civil commitment proceedings are initiated

under IC 31-34-19-3 or IC 31-37-18-3.

(10) A third party that contracts with the division of mental health and addiction to provide competency

restoration services to a defendant under IC 35-36-3-3 or IC 35-36-3-4. [Pre-1992 Revision Citation: 16-14-9.1-10(b) part.]


P.L.77-2004, SEC.1.

IC 12-26-7-3 Petition; physician's written statement; reports

Sec. 3. (a) A petition filed under section 2 of this chapter must include a physician's written statement that states

both of the following:

(1) The physician has examined the individual within the past thirty (30) days.

(2) The physician believes that the individual is:


(B) in need of custody, care, or treatment in a facility for a period expected to be more than ninety (90) days.

(b) Except as provided in subsection (d), if the commitment is to a state institution administered by the division

of mental health and addiction, the record of the proceedings must include a report from a community mental health

center stating both of the following:

(1) The community mental health center has evaluated the individual.

(2) Commitment to a state institution administered by the division of mental health and addiction under this

chapter is appropriate.

(c) The physician who makes the statement required by subsection (a) may be affiliated with the community

mental health center that makes the report required by subsection (b).

(d) If the commitment is of an adult to a research bed at Larue D. Carter Memorial Hospital, as set forth in IC 12-

21-2-3, the report from a community mental health center is not required.

(e) If a commitment ordered under subsection (a) is to a state institution administered by the division of disability

and rehabilitative services, the record of commitment proceedings must include a report from a service coordinator

employed by the division of disability and rehabilitative services stating that, based on a diagnostic assessment of

the individual, commitment to a state institution administered by the division of disability and rehabilitative services

under this chapter is appropriate. [Pre-1992 Revision Citation: 16-14-9.1-10(b) part.]


P.L.215-2001, SEC.73; P.L.141-2006, SEC.68.

IC 12-26-7-4 Hearing date; rights of subject individual; hearing procedures

Sec. 4. (a) Upon receiving:









36

(1) a petition under section 2 of this chapter; or

(2) a report under IC 12-26-6-11 that recommends treatment in a facility for more than ninety (90) days;

the court shall enter an order setting a hearing date.

(b) If an individual is currently under a commitment order, the hearing required by subsection (a) must be held

before the expiration of the current commitment period. Notice of a hearing under this subsection shall be given to

the individual and all other interested persons at least five (5) days before the hearing date.

(c) The rights of an individual who is the subject of a proceeding under this chapter and of a petitioner are the

same as provided in IC 12-26-6.

(d) Hearing procedures are the same as those provided in IC 12-26-6. [Pre-1992 Revision Citation: 16-14-9.1-10(c).]


IC 12-26-7-5 Finding that individual is mentally ill and either dangerous or gravely disabled; order for

treatment; duration of order; transmittal of information to NICS

Sec. 5. (a) If at the completion of the hearing and the consideration of the record an individual is found to be

mentally ill and either dangerous or gravely disabled, the court may enter either of the following orders:

(1) For the individual's custody, care, or treatment, or continued custody, care, or treatment in an appropriate

facility.

(2) For the individual to enter an outpatient therapy program under IC 12-26-14.

(b) An order entered under subsection (a) continues until any of the following occurs:

(1) The individual has been:

(A) discharged from the facility; or

(B) released from the therapy program.

(2) The court enters an order:

(A) terminating the commitment; or

(B) releasing the individual from the therapy program.

(c) If the court makes a finding under subsection (a), the court shall transmit any information required by the

division of state court administration to the division of state court administration for transmission to the NICS (as

defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3. [Pre-1992 Revision Citation: 16-14-9.1-10(d).]


IC 12-26-8 Chapter 8. Commitment of a Child 12-26-8-1Appointment of advocate or guardian; persons authorized to be appointed as advocate; representation and protection of child's

best interests

12-26-8-2Advocate; officer of juvenile court

12-26-8-3Representation of advocate by counsel; appointment of counsel

12-26-8-4Commitment of child; review by advocate; assistance provided by facility warden

12-26-8-5Advocate reviews; report; recipients of report

12-26-8-6Advocate; access to reports relevant to child; confidential reports

12-26-8-7Payment of fees to be made under IC 31-6-4-18

12-26-8-8Obligations of county offices to children under custody or supervision committed to state institutions

12-26-8-9Repealed

IC 12-26-8-1 Appointment of advocate or guardian; persons authorized to be appointed as advocate;

representation and protection of child's best interests

Sec. 1. (a) A juvenile court that conducts a proceeding under this article shall appoint a court appointed special

advocate, a guardian ad litem, or both for the child before the court begins a proceeding under this article.

(b) An advocate is not required to be an attorney.

(c) An attorney representing the child may be appointed as the child's advocate.

(d) The court may not appoint any of the following to be a child's advocate:

(1) A party to the proceeding.

(2) An employee of a party to the proceeding.

(3) A representative of a party to the proceeding.

(e) An advocate shall represent and protect the best interests of the child. [Pre-1992 Revision Citations: subsection (a) formerly 16-14-9.1-5.5(a) part; subsection (b) formerly 16-14-9.1-5.5(a) part; subsection (c)

formerly 16-14-9.1-5.5(a) part; subsection (d) formerly 16-14-9.1-5.5(g); subsection (e) formerly 16-14-9.1-5.5(b) part.] As added by P.L.2-1992, SEC.20.





http://iga.in.gov/legislative/laws/2017/ic/titles/012#35-47-2.5-2.5












37

IC 12-26-8-2 Advocate; officer of juvenile court

Sec. 2. A child's advocate is an officer of the juvenile court for the purpose of representing the child's interests. [Pre-1992 Revision Citation: 16-14-9.1-5.5(e).]


IC 12-26-8-3 Representation of advocate by counsel; appointment of counsel

Sec. 3. (a) A child's advocate may be represented by an attorney.

(b) If necessary to protect the child's interests, the juvenile court may appoint an attorney to represent an advocate

of a child. The court may appoint only one (1) attorney under this subsection. [Pre-1992 Revision Citation: 16-14-9.1-5.5(d).]


IC 12-26-8-4 Commitment of child; review by advocate; assistance provided by facility warden

Sec. 4. (a) Within thirty (30) days after a child is first committed to a facility by a juvenile court, the child's

advocate shall do all of the following:

(1) Visit the facility.

(2) Evaluate the services delivered to the child.

(3) Evaluate whether the commitment continues to be appropriate for the child.

(b) The child's advocate shall conduct a review similar to that required under subsection (a):

(1) sixty (60) days after the child is first committed;

(2) six (6) months after the child is first committed; and

(3) every six (6) months after the review required by subdivision (2).

(c) The warden of the facility shall provide necessary assistance to carry out the reviews required by this section. [Pre-1992 Revision Citation: 16-14-9.1-5.5(b) part.]


IC 12-26-8-5 Advocate reviews; report; recipients of report

Sec. 5. The child's advocate shall submit a report of each review required by section 4 of this chapter to all of the

following:

(1) The committing juvenile court.

(2) The warden of the facility.

(3) A county office that has wardship of the child.

(4) Each party to the commitment proceeding. [Pre-1992 Revision Citation: 16-14-9.1-5.5(b) part.]


IC 12-26-8-6 Advocate; access to reports relevant to child; confidential reports

Sec. 6. (a) A child's advocate shall be given access to all reports relevant to the child.

(b) IC 31-39-2 applies to the release of reports that are confidential under IC 31-39-1. [Pre-1992 Revision Citation: 16-14-9.1-5.5(h).]


IC 12-26-8-7 Payment of fees to be made under IC 31-6-4-18

Sec. 7. Payment of any fees shall be made under IC 31-40. [Pre-1992 Revision Citation: 16-14-9.1-5.5(c).]


IC 12-26-8-8 Obligations of county offices to children under custody or supervision committed to state

institutions

Sec. 8. If a child under the custody or supervision of a county office is committed to a state institution, the court

may not release the county office from the county office's obligations to the child unless the court appoints a

guardian for the child under IC 12-26-16. [Pre-1992 Revision Citation: 16-14-9.1-11.5.]


IC 12-26-8-9 Repealed [Pre-1992 Revision Citation: 16-14-9.1-10(i).]





38


P.L.146-2008, SEC.417. Repealed by P.L.128-2012, SEC.18.

IC 12-26-9 Chapter 9. Commitment to Facilities Owned by the United States Government 12-26-9-1Federal department defined

12-26-9-2Federal facility defined

12-26-9-3Court communications with federal department concerning availability of federal facilities and individual's eligibility for

commitment

12-26-9-4Commitment to federal facility

12-26-9-5Admission to federal facility; individual subject to rules and regulations of the facility

12-26-9-6Federal facility hospital officers; powers with respect to detention and custody of individuals

IC 12-26-9-1 Federal department defined

Sec. 1. As used in this chapter, "federal department" refers to the United States Department of Veterans Affairs. [1992 Revision Citation: New.]


IC 12-26-9-2 Federal facility defined

Sec. 2. As used in this chapter, "federal facility" refers to a facility owned by the United States. [1992 Revision Citation: New.]


IC 12-26-9-3 Court communications with federal department concerning availability of federal facilities

and individual's eligibility for commitment

Sec. 3. If it is determined in a proceeding under this article that an individual:

(1) is mentally ill and either dangerous or gravely disabled;

(2) should be committed to a facility for custody, care, and treatment; and

(3) is a veteran who may be eligible for treatment in a federal facility;

the court may communicate with the federal department concerning the availability of federal facilities and the

individual's eligibility to be committed to a federal facility. [Pre-1992 Revision Citation: 16-14-9.1-15(a).]


IC 12-26-9-4 Commitment to federal facility

Sec. 4. Upon receiving information concerning availability and eligibility from the federal department, the court

may commit an individual to a federal facility. [Pre-1992 Revision Citation: 16-14-9.1-15(b) part.]


IC 12-26-9-5 Admission to federal facility; individual subject to rules and regulations of the facility

Sec. 5. Upon admission to a federal facility, an individual is subject to the rules and regulations of the federal

facility. [Pre-1992 Revision Citation: 16-14-9.1-15(b) part.]


IC 12-26-9-6 Federal facility hospital officers; powers with respect to detention and custody of individuals

Sec. 6. The hospital officers of a federal facility have the same powers exercised by a superintendent under this

article with respect to the detention and custody of an individual. [Pre-1992 Revision Citation: 16-14-9.1-15(b) part.]


IC 12-26-10 Chapter 10. Care Pending Admission to a Facility 12-26-10-1Court consultation with facility superintendent or attending physician

12-26-10-2Temporary placement; least restrictive suitable facility

12-26-10-3Confinement in county jail

12-26-10-4Order that assistance be furnished and paid for out of county general fund

IC 12-26-10-1 Court consultation with facility superintendent or attending physician











39

Sec. 1. If an individual is committed to a facility, the court shall consult with the superintendent or the attending

physician concerning the method of caring for the individual pending admission to the facility. [Pre-1992 Revision Citation: 16-14-9.1-16(a) part.]


IC 12-26-10-2 Temporary placement; least restrictive suitable facility

Sec. 2. The court may order temporary placement of the individual in the least restrictive suitable facility pending

admission to a facility. [Pre-1992 Revision Citation: 16-14-9.1-16(b).]


IC 12-26-10-3 Confinement in county jail

Sec. 3. An individual may not be confined in a county jail unless all the following apply:

(1) The individual is found to be dangerous and violent.

(2) There is no other suitable facility available pending admission to a facility.

(3) The court so orders. [Pre-1992 Revision Citation: 16-14-9.1-16(c).]


IC 12-26-10-4 Order that assistance be furnished and paid for out of county general fund

Sec. 4. If the comfort and the care of an individual are not otherwise provided:

(1) from the individual's estate;

(2) by the individual's relatives or friends; or

(3) through financial assistance from the department of child services or the division of family resources;

the court may order the assistance furnished and paid for out of the general fund of the county. [Pre-1992 Revision Citation: 16-14-9.1-16(a) part.]

As added by P.L.2-1992, SEC.20. Amended by P.L.4-1993, SEC.207; P.L.5-1993, SEC.220; P.L.145-2006,

SEC.126; P.L.146-2008, SEC.418.

IC 12-26-11 Chapter 11. Transfer of an Individual 12-26-11-1Transfers; facilities to which transfers may be made; best interest of individual transferred or other patients

12-26-11-2Declining to admit individual; grounds

12-26-11-3Medical and treatment records; providing copies to facilities to which individuals transferred

12-26-11-3.5Transfer from state institution to nonstate community or facility; planning and facilitating transition

12-26-11-4Notice of transfer; persons notified

12-26-11-5Transfer to substantially more restrictive environment; administrative hearing

12-26-11-6Petition to set aside transfer

IC 12-26-11-1 Transfers; facilities to which transfers may be made; best interest of individual transferred

or other patients

Sec. 1. The superintendent of a facility to which an individual was committed under IC 12-26-6 or IC 12-26-7 or

to which the individual's commitment was transferred under this chapter, may transfer the commitment of the

individual to:

(1) a state institution;

(2) a community mental health center;

(3) a community intellectual disability and other developmental disabilities center;

(4) a federal facility;

(5) a psychiatric unit of a hospital licensed under IC 16-21;

(6) a private psychiatric facility licensed under IC 12-25;

(7) a community residential program for the developmentally disabled described in IC 12-11-1.1-1(e)(1) or IC

12-11-1.1-1(e)(2); or

(8) an intermediate care facility for individuals with intellectual disabilities (ICF/IID) that is licensed under IC

16-28 and is not owned by the state;

if the transfer is likely to be in the best interest of the individual or other patients. [Pre-1992 Revision Citation: 16-14-9.1-17(a) part.]


P.L.117-2015, SEC.22; P.L.35-2016, SEC.78.












http://iga.in.gov/legislative/laws/2017/ic/titles/012#12-11-1.1-1





40

IC 12-26-11-2 Declining to admit individual; grounds

Sec. 2. The superintendent of a facility to which the commitment of an individual is to be transferred may decline

to admit the individual if the superintendent determines that adequate space, treatment staff, or treatment facilities

appropriate to the needs of the individual are not available. [Pre-1992 Revision Citation: 16-14-9.1-17(a) part.]


IC 12-26-11-3 Medical and treatment records; providing copies to facilities to which individuals

transferred

Sec. 3. If an individual is transferred under section 1 of this chapter, the transferring facility shall provide a copy

of the individual's current medical and treatment records to the facility to which the commitment of the individual is

transferred. [Pre-1992 Revision Citation: 16-14-9.1-17(b).]


IC 12-26-11-3.5 Transfer from state institution to nonstate community or facility; planning and facilitating

transition

Sec. 3.5. If an individual is transferred under section 1 of this chapter from a state institution administered by the

division of mental health and addiction, the gatekeeper for the individual shall facilitate and plan, together with the

individual and state institution, the individual's transition to the community or to another facility if the facility is not

a state institution administered by the division of mental health and addiction.


IC 12-26-11-4 Notice of transfer; persons notified

Sec. 4. If the commitment of an individual is transferred to another facility under section 1 of this chapter, the

transferring facility shall give written notice to each of the following:

(1) The individual's legal guardian.

(2) The individual's parents.

(3) The individual's spouse.

(4) The individual's attorney, if any. [Pre-1992 Revision Citation: 16-14-9.1-17(c) part.]


IC 12-26-11-5 Transfer to substantially more restrictive environment; administrative hearing

Sec. 5. (a) As used in this section, "substantially more restrictive environment" means another facility or that part

of a facility that is designated as the place providing maximum security for patients.

(b) If the transfer of the commitment of an individual is to a substantially more restrictive environment, the

transferring facility shall provide the individual with an opportunity for an administrative hearing within ten (10)

days after the transfer. [Pre-1992 Revision Citation: 16-14-9.1-17(c) part.]


IC 12-26-11-6 Petition to set aside transfer

Sec. 6. An individual whose commitment is transferred under section 1 of this chapter may, within thirty (30)

days after the transfer, petition the committing court for an order setting aside the transfer and ordering the

individual and the individual's medical and treatment records returned to the facility to which the court originally

committed the individual. [Pre-1992 Revision Citation: 16-14-9.1-17(c) part.]


IC 12-26-12 Chapter 12. Notice of Discharge of an Individual 12-26-12-1Notification that committed individual will be discharged

12-26-12-2Request by petitioner for hearing; notification of superintendent

12-26-12-3Absence of hearing request notice; discharge of individual

12-26-12-4Receipt by superintendent of hearing request notice; discharge of individual

12-26-12-5Petition; hearing date; failure to hold timely hearing; discharge of individual

12-26-12-6Hearing; evidence; procedure; rights of committed individual

12-26-12-7Finding that individual is not mentally ill and either dangerous or gravely disabled; discharge








41

12-26-12-8Appointment of guardian

IC 12-26-12-1 Notification that committed individual will be discharged

Sec. 1. (a) Except as provided in subsection (c), a court that orders a commitment may order the superintendent to

notify the petitioner in the commitment proceeding and other person designated by the court that the committed

individual will be discharged.

(b) The notice required under subsection (a) shall be given to the petitioner and other person designated by the

court at least twenty (20) days before the end of the commitment period.

(c) A court may not order the director of a community mental health center to notify the person who filed a

petition with respect to an individual committed to the community mental health center. [Pre-1992 Revision Citations: subsection (a) formerly 16-14-9.1-10.5(a) part; subsection (b) formerly 16-14-9.1-10.5(a) part; subsection (c)

formerly 16-14-9.1-10.5(g).] As added by P.L.2-1992, SEC.20. Amended by P.L.40-1994, SEC.60; P.L.188-2013, SEC.18.

IC 12-26-12-2 Request by petitioner for hearing; notification of superintendent

Sec. 2. (a) Within ten (10) days after receiving a notice under section 1 of this chapter, the petitioner may file a

petition with the court that ordered the committed individual's commitment requesting a hearing to determine

whether the individual should be discharged.

(b) The petitioner must notify the superintendent of a petition filed with the court under subsection (a). [Pre-1992 Revision Citation: 16-14-9.1-10.5(a) part.]


IC 12-26-12-3 Absence of hearing request notice; discharge of individual

Sec. 3. If the superintendent does not receive notice of a request for a hearing within ten (10) days after notice

was given under section 2 of this chapter, the committed individual shall be discharged unless the superintendent

determines that the individual is mentally ill and either dangerous or gravely disabled. [Pre-1992 Revision Citation: 16-14-9.1-10.5(b) part.]


IC 12-26-12-4 Receipt by superintendent of hearing request notice; discharge of individual

Sec. 4. If the superintendent is notified of a petition under section 2 of this chapter, the committed individual may

not be discharged except as provided in this chapter. [Pre-1992 Revision Citation: 16-14-9.1-10.5(b) part.]


IC 12-26-12-5 Petition; hearing date; failure to hold timely hearing; discharge of individual

Sec. 5. (a) If the court receives a petition under section 2 of this chapter, the court shall set a hearing date.

(b) The hearing date set under subsection (a) must be within twenty (20) days after the petition is filed.

(c) If a hearing is not held within twenty (20) days of the filing of the petition, the committed individual shall be

discharged unless either of the following apply:

(1) The individual agrees to a continuance.

(2) The superintendent determines that the individual is mentally ill and either dangerous or gravely disabled. [Pre-1992 Revision Citation: 16-14-9.1-10.5(c).]


IC 12-26-12-6 Hearing; evidence; procedure; rights of committed individual

Sec. 6. At the hearing:

(1) the petitioner is entitled to present evidence concerning the committed individual's mental or physical

condition;

(2) the procedure is the same as provided in IC 12-26-6; and

(3) the committed individual's rights are the same as provided in IC 12-26-6. [Pre-1992 Revision Citation: 16-14-9.1-10.5(d).]


IC 12-26-12-7 Finding that individual is not mentally ill and either dangerous or gravely disabled;

discharge




42

Sec. 7. The court shall order the discharge of a committed individual and terminate the commitment if the court

finds that the individual is not mentally ill and either dangerous or gravely disabled. [Pre-1992 Revision Citation: 16-14-9.1-10.5(e).]


IC 12-26-12-8 Appointment of guardian

Sec. 8. If the court does not order the discharge of the committed individual under section 7 of this chapter, the

court may appoint a guardian to provide for the individual's continued care. [Pre-1992 Revision Citation: 16-14-9.1-10.5(f).]


IC 12-26-13 Chapter 13. Leave From Confinement and Discharge 12-26-13-1Leave of absence; best interest of committed individual

12-26-13-2Discharge notice given to committing court; record entry by court

IC 12-26-13-1 Leave of absence; best interest of committed individual

Sec. 1. The superintendent of a facility may grant a committed individual a leave of absence from confinement in

the facility for a period designated by the superintendent if the superintendent or an attending physician determines

that the leave of absence is in the best interest of the individual. [Pre-1992 Revision Citation: 16-14-9.1-21.]


IC 12-26-13-2 Discharge notice given to committing court; record entry by court

Sec. 2. Upon the discharge of an individual committed under this article, the superintendent of the facility shall

notify the committing court of the date of the discharge. The court shall make an entry on the record indicating the

date of discharge. [Pre-1992 Revision Citation: 16-14-9.1-18.]


IC 12-26-14 Chapter 14. Outpatient Therapy 12-26-14-1Ordering individual to enter outpatient therapy program; findings authorizing order

12-26-14-2Representation by program representative that individual may enter program

12-26-14-3Ordering compliance with program

12-26-14-4Reasonable belief that individual has failed to comply with program; notice to court; transfer from outpatient program; transfer

to sub-acute stabilization program; jail or prison

12-26-14-5Noncompliance notification; reopening commitment proceeding; review of transfer to sub-acute stabilization program

12-26-14-6Order to enter therapy; review of order and release from program; intervals and conditions

12-26-14-7Committed individuals; placement on outpatient status for remainder of commitment period

12-26-14-8Committed individual placed on outpatient status; compliance with program

12-26-14-9Failure to comply with program; return to facility or transfer to sub-acute stabilization program

12-26-14-10Return to facility; hearing; hearing officer; appeal to committing court

IC 12-26-14-1 Ordering individual to enter outpatient therapy program; findings authorizing order

Sec. 1. If a hearing has been held under IC 12-26-6 or IC 12-26-7 and the court finds that the individual is:

(1) mentally ill and either dangerous or gravely disabled;

(2) likely to benefit from an outpatient therapy program that is designed to decrease the individual's

dangerousness or disability;

(3) not likely to be either dangerous or gravely disabled if the individual complies with the therapy program;

and

(4) recommended for an outpatient therapy program by the individual's examining physician;

the court may order the individual to enter a therapy program as an outpatient. [Pre-1992 Revision Citation: 16-14-9.1-20.5(a).]


IC 12-26-14-2 Representation by program representative that individual may enter program

Sec. 2. Before the court may issue an order under section 1 of this chapter, a representative of an outpatient

therapy program approved by the court must represent to the court that the individual may enter that program

immediately. [Pre-1992 Revision Citation: 16-14-9.1-20.5(b).]
















43

IC 12-26-14-3 Ordering compliance with program

Sec. 3. The court may require an individual ordered to enter an outpatient therapy program under section 1 of this

chapter to do the following:

(1) Follow the therapy program the individual enters.

(2) Attend each medical and psychiatric appointment made for the individual.

(3) Reside at a location determined by the court.

(4) Comply with other conditions determined by the court. [Pre-1992 Revision Citation: 16-14-9.1-20.5(c).]


IC 12-26-14-4 Reasonable belief that individual has failed to comply with program; notice to court;

transfer from outpatient program; transfer to sub-acute stabilization program; jail or prison

Sec. 4. (a) If a staff member of a program involved in the treatment, supervision, or care of an individual ordered

to enter an outpatient therapy program under section 1 of this chapter has reason to believe that the individual has

failed to comply with the requirements of section 3 of this chapter, the staff member shall immediately notify the

court of the failure to comply.

(b) Except as provided in subsection (c), the individual may be transferred from the outpatient therapy program to

one (1) of the following:

(1) The inpatient unit of the facility that has the original commitment.

(2) A community based residential program under IC 12-22-2-3.5.

(c) The individual may not be transferred to a community based residential program under IC 12-22-2-3.5 unless

in the opinion of the individual's attending physician:

(1) it is not necessary for the individual to receive acute care inpatient treatment; and

(2) the individual is in need of a community based residential program under IC 12-22-2-3.5.

(d) The individual may not be imprisoned or confined in a jail or correctional facility unless the individual has

been placed under arrest.

(e) A facility to which an individual is transferred under subsection (b) shall immediately notify the court of the

transfer. A transfer to a facility under subsection (b) is subject to review under section 6 of this chapter upon petition

by the individual who was transferred. [Pre-1992 Revision Citation: 16-14-9.1-20.5(d).]


IC 12-26-14-5 Noncompliance notification; reopening commitment proceeding; review of transfer to sub-

acute stabilization program

Sec. 5. (a) Upon receiving notification under section 4 of this chapter, the court shall reopen the original

committment proceeding and determine whether the:

(1) individual:

(A) has failed to comply with the requirements of section 3 of this chapter;

(B) is mentally ill and either dangerous or gravely disabled; and

(C) should be committed to a facility under this article; or

(2) individual should continue to be maintained on an outpatient commitment, subject to an additional court

order that:

(A) requires a law enforcement officer to apprehend and transport the individual to a facility for treatment;

and

(B) applies:

(i) after notification to the court by the facility or provider responsible for the individual's commitment;

and

(ii) whenever the individual fails to attend a scheduled outpatient appointment or fails to comply with a

condition of the outpatient commitment.

(b) If the court receives notice of a transfer under section 4(e) of this chapter, the court may conduct a review to

determine the validity of the transfer. [Pre-1992 Revision Citation: 16-14-9.1-20.5(e).]


IC 12-26-14-6 Order to enter therapy; review of order and release from program; intervals and conditions




44

Sec. 6. If an individual is ordered to enter a therapy program under section 1 of this chapter, the individual is

entitled to review of the order and release from the program at the same intervals and under the same conditions as

an individual committed under:

(1) IC 12-26-6 if the therapy order is issued under that chapter; or

(2) IC 12-26-7 if the therapy order is issued under that chapter. [Pre-1992 Revision Citation: 16-14-9.1-20.5(f).]


IC 12-26-14-7 Committed individuals; placement on outpatient status for remainder of commitment period

Sec. 7. If an individual:

(1) has been committed under IC 12-26-6 or IC 12-26-7;

(2) is likely to benefit from a therapy program designed to decrease the individual's dangerousness or grave

disability;

(3) is not likely to be either dangerous or gravely disabled if the individual continues to follow the therapy

program; and

(4) is recommended for an outpatient therapy program by the individual's attending or examining physician;

the superintendent of the facility in which the individual is committed or the court at the time of commitment may

place the individual on outpatient status for the remainder of the individual's commitment period, subject to the

conditions of outpatient therapy programs under section 8 of this chapter. [Pre-1992 Revision Citation: 16-14-9.1-20.1(a).]


IC 12-26-14-8 Committed individual placed on outpatient status; compliance with program

Sec. 8. An individual placed on outpatient status under section 7 of this chapter may be required to do the

following:

(1) Follow the therapy program designed by the facility in which the individual has been placed.

(2) Attend any medical or psychiatric appointments made for the individual with respect to the individual's

psychiatric condition.

(3) Reside at a place designated by the superintendent. [Pre-1992 Revision Citation: 16-14-9.1-20.1(b).]


IC 12-26-14-9 Failure to comply with program; return to facility or transfer to sub-acute stabilization

program

Sec. 9. If the individual's attending or examining physician determines that the individual has failed to comply

with the requirements under section 8 of this chapter and is likely to be dangerous or gravely disabled, the

individual:

(1) may, in accordance with IC 12-24-8, be returned to the facility to which the individual is committed under

this article as an inpatient; or

(2) may be transferred to a short term sub-acute stabilization treatment program under this chapter. [Pre-1992 Revision Citation: 16-14-9.1-20.1(c).]


IC 12-26-14-10 Return to facility; hearing; hearing officer; appeal to committing court

Sec. 10. (a) After an individual has been returned to the facility to which the individual is committed under this

article, the secretary shall conduct a hearing under IC 4-21.5-3 to determine whether:

(1) the individual has failed to comply with the requirements described in section 8 of this chapter;

(2) the individual is in need of inpatient treatment; and

(3) the individual's outpatient status should be revoked.

(b) A hearing required by subsection (a) may be conducted by a hearing officer appointed by the secretary.

(c) An individual may appeal under IC 4-21.5-5 a determination of the hearing officer by filing a petition with the

court that committed the individual under IC 12-26-6 or IC 12-26-7. [Pre-1992 Revision Citation: 16-14-9.1-20.1(d).]


IC 12-26-15 Chapter 15. Review of Commitment






http://iga.in.gov/legislative/laws/2017/ic/titles/012#4-21.5-3

http://iga.in.gov/legislative/laws/2017/ic/titles/012#4-21.5-5



45

12-26-15-1Annual review; contents; filing with court; notice; report on individual committed after verdict of not responsible by reason of

insanity

12-26-15-2Receipt by court of review; options; appointment of guardian

12-26-15-3Requesting hearing for review or dismissal of commitment or order; frequency of commitment reviews; hearing date

12-26-15-4Rights of committed individual; hearing procedures

12-26-15-5Discharge before end of commitment period or court ordered therapy program period; notice to court of discharge or release

from therapy program

IC 12-26-15-1 Annual review; contents; filing with court; notice; report on individual committed after

verdict of not responsible by reason of insanity

Sec. 1. (a) At least annually, and more often if directed by the court, the superintendent of the facility or the

attending physician including the superintendent or attending physician of an outpatient therapy program, shall file

with the court a review of the individual's care and treatment. The review must contain a statement of the following:

(1) The mental condition of the individual.

(2) Whether the individual is dangerous or gravely disabled.

(3) Whether the individual:

(A) needs to remain in the facility; or

(B) may be cared for under a guardianship.

(b) If the court has entered an order under IC 12-26-12-1, the superintendent or the attending physician shall give

notice of the review to the petitioner in the individual's commitment proceeding and other persons that were

designated by the court under IC 12-26-12-1 or as provided in this section.

(c) If an individual has been committed under IC 35-36-2-4, the superintendent of the facility or the attending

physician shall:

(1) file with the court the report described in subsection (a) every six (6) months, or more often if directed by

the court; and

(2) notify the court, the petitioner, and any other person or persons designated by the court under this section:

(A) at least ten (10) days before, or as soon as practicable in case of an emergency, when:

(i) the committed individual is allowed outside the facility or the grounds of the facility not under

custodial supervision;

(ii) the committed individual is transferred to another facility and the location of that facility; or

(iii) the committed individual is discharged or the individual’s commitment is otherwise terminated; and

(B) as soon as practicable if the committed individual escapes.

(d) The court may designate as a person or persons to receive the notices provided in this section a person or

persons who suffered harm as the result of a crime for which the committed individual was on trial.

(e) The court may designate as a person or persons to receive the notices provided in this section:

(1) an individual or individuals described in subsection (d); or

(2) a designated representative if the person or persons described in subsection (d) are incompetent, deceased,

less than eighteen (18) years of age, or otherwise incapable of receiving or understanding a notice provided for

in this section.

(f) A commitment order issued by a court under IC 35-36-2-4 and this article must include the following:

(1) The mailing address, electronic mail address, facsimile number, and telephone number of the following:

(A) The petitioner who filed the petition under IC 35-36-2-4.

(B) Any other person designated by the court.

(2) The notice requirements set forth in this section. [Pre-1992 Revision Citation: 16-14-9.1-10(e).]


IC 12-26-15-2 Receipt by court of review; options; appointment of guardian

Sec. 2. (a) Upon receipt of the report required by section 1 of this chapter, the court shall do one (1) of the

following:

(1) Order the individual's continued custody, care, and treatment in the appropriate facility or therapy program.

(2) Terminate the commitment or release the individual from the therapy program.

(3) Conduct a hearing under IC 12-26-12.

(b) The court may, in order to make provision for the individual's continued care, appoint a guardian for the

individual. [Pre-1992 Revision Citation: 16-14-9.1-10(f).]













46

IC 12-26-15-3 Requesting hearing for review or dismissal of commitment or order; frequency of

commitment reviews; hearing date

Sec. 3. (a) Upon receiving a copy of the court order, the individual or the individual's representative may request

a hearing for review or dismissal of the commitment or order concerning the therapy program. The right to review of

the regular commitment or therapy order is limited to one (1) review each year, unless the court determines that

there is good cause for an additional review.

(b) When a hearing request is received, the court shall set a hearing date and provide at least five (5) days notice

to all of the following:

(1) The individual.

(2) The individual's counsel.

(3) Other interested parties. [Pre-1992 Revision Citation: 16-14-9.1-10(g).]


IC 12-26-15-4 Rights of committed individual; hearing procedures

Sec. 4. (a) The rights of a committed individual are the same as those provided in IC 12-26-6.

(b) Hearing procedures for a hearing under this chapter are the same as those provided in IC 12-26-6. [Pre-1992 Revision Citation: 16-14-9.1-10(g).]


IC 12-26-15-5 Discharge before end of commitment period or court ordered therapy program period;

notice to court of discharge or release from therapy program

Sec. 5. (a) Unless the court has entered an order under IC 12-26-12, the individual may be discharged before the

end of the commitment period or court ordered therapy program period if either of the following apply:

(1) The superintendent or the attending physician determines that the individual is not mentally ill and either

dangerous or gravely disabled.

(2) The superintendent determines, with the written consent of the attending physician, that the individual will

enter a facility that provides more appropriate care and treatment immediately following the individual's

discharge.

(b) If an individual is discharged or released from a therapy program under this section, the superintendent or the

attending physician shall notify the court. The court shall enter an order terminating the commitment or releasing the

individual from the therapy program. [Pre-1992 Revision Citation: 16-14-9.1-10(h).]


IC 12-26-16 Chapter 16. Guardianships 12-26-16-1Request by subject individual or other interested party; establishing guardianship instead of making commitment

12-26-16-2Application of law governing guardianships

IC 12-26-16-1 Request by subject individual or other interested party; establishing guardianship instead of

making commitment

Sec. 1. At the request of the individual who is the subject of a proceeding under this article or another interested

party, the court may establish a guardianship for the individual or the individual's property instead of making or

continuing a regular commitment to a facility under IC 12-26-7 or at any other time. [Pre-1992 Revision Citation: 16-14-9.1-11 part.]


IC 12-26-16-2 Application of law governing guardianships

Sec. 2. A guardianship established under section 1 of this chapter shall be established under the applicable

Indiana law governing guardianships. [Pre-1992 Revision Citation: 16-14-9.1-11 part.]






