Section 22-52-91 Duty of Law Enforcement Officer, Community Mental Health Officer to Take into Custody Alleged Mentally Ill Persons; Detention; Admission; Hearing.

(a)(1) When a law enforcement officer is confronted by circumstances that give the law enforcement officer reasonable cause for believing that an individual within the county has a mental illness and that the individual is likely to pose a real and present threat of substantial harm to self or others, the law enforcement officer shall contact a community mental health officer. The community mental health officer shall join the law enforcement officer at the scene and location of the individual to assess the condition of the individual and determine whether the individual needs the attention, specialized care, and services of a designated mental health facility. (2) If the community mental health officer determines from the conditions, symptoms, and behavior that the individual appears to have a mental illness and poses a real and present threat of substantial harm to self or others, the law enforcement officer shall take the individual into custody and, together with the community mental health officer, deliver the individual directly to the designated mental health facility. (3) At the designated mental health facility, a responsible employee of the facility who is on duty and in charge of admissions to the facility shall be informed by the community mental health officer that the individual in custody appears to have a mental illness and is in need of examination and observation. (4) In determining whether an individual poses a real and present threat of substantial harm to self or others, all available relevant information shall be considered, including any known relevant aspects of the individual’s psychosocial, medical, and psychiatric history, in addition to the individual’s current behavior. (b)(1) The employee of the designated mental health facility shall immediately notify an appropriate staff member of the facility who conducts diagnoses and evaluations that an individual alleged to have a mental illness has been received at the facility. The staff member shall immediately perform an initial examination and observation, and using whatever other information concerning the individual’s behavior as may be available, will allow the staff member to make a determination as to whether to admit the individual to the designated mental health facility as a patient tentatively diagnosed with a mental illness for further observation and attention. (2) Notwithstanding anything in this article to the contrary, before any individual is admitted to a licensed hospital pursuant to this article, the individual shall be examined and evaluated by a psychiatrist or other physician licensed to practice medicine and authorized by the hospital medical staff bylaws of the licensed hospital to admit patients for the treatment of mental or emotional illnesses. All admissions to a licensed hospital authorized under this article shall be made only in conformity with established policies, procedures, and the medical staff bylaws of the licensed hospital to which the individual is admitted. This article shall not be construed to authorize or permit any individual not licensed to practice medicine to perform any act or render any service that constitutes the practice of medicine. (c) Upon a determination by the staff member that the individual does not require admission to the designated mental health facility, the staff member shall so advise the community mental health officer. The community mental health officer shall promptly communicate this information to the law enforcement officer who shall cause the individual to be released from the designated mental health facility. The law enforcement officer shall then release the individual unless the law enforcement officer has some legal cause for detaining the individual other than the individual’s mental condition. After the individual is released, and, if so requested by the individual, the law enforcement officer shall deliver the individual to his or her residence or other place of abode if it is within the county. (d) Upon a determination by the staff member that the individual alleged to have a mental illness should be admitted to the designated mental health facility, the staff member shall proceed with admission of the individual to the facility. The staff member shall also advise the community mental health officer who shall promptly communicate this information to the law enforcement officer. The community mental health officer shall effectuate the filing of a petition for commitment with the probate court on the individual by parties in interest. If the petition is not timely filed, the community mental health officer shall file the petition in his or her official capacity no later than the second business day following the date of admission. (e) No later than the next business day following the date of admission, the staff member shall notify the judge of probate, or the probate clerk of the county, of the admission to the designated mental health facility of the individual alleged to have a mental illness. The judge of probate shall hold a probable cause hearing to determine if the detention of the individual is based upon probable cause to believe that confinement is necessary under constitutionally proper standards for commitment or alternate modes of treatment and to determine whether the detention should continue until a final hearing on the merits can be held. In the case where a community mental health officer has acted in helping gain the admission of the individual to a designated mental health facility for initial examination and observation, the judge of probate shall interview the individual pursuant to this section no later than the fifth business day after admission to the designated mental health facility or hospital. (f)(1) Prior to the probable cause hearing, the probate court shall furnish adequate notice informing the individual, or his or her counsel, of the time and place of the hearing, the factual grounds upon which the proposed commitment is predicated, and the reasons for the necessity of confinement. The probate court shall require that the individual be represented by counsel at the hearing, which counsel shall be appointed by the court if necessary. The probate court shall require the presence of the individual at the hearing unless his or her presence is waived by counsel and approved by the court after an adversary hearing at the conclusion of which the court judicially finds and determines that the individual is so mentally or physically ill as to be incapable of attending the probable cause hearing. In no event may detention in the absence of a petition for commitment and a probable cause hearing exceed seven days from the date of the initial confinement under this article. (2) If the court finds and determines that there is no probable cause to detain the individual, the court shall immediately cause the individual to be discharged and released from the designated mental health facility. Notwithstanding the foregoing, if criminal charges have been placed against the individual and the health care facility has been so notified by an appropriate law enforcement officer, the designated mental health facility shall release the individual into the custody of the appropriate law enforcement officer. (g) If the court determines there is probable cause to detain the individual pending a full hearing on the need for commitment or some alternate mode of treatment, the court shall issue a mittimus or commitment of the individual to the designated mental health facility until the proceedings may be held in accordance with law. Notwithstanding the foregoing, the proceedings shall be held within a reasonable time following initial detention, but in no event sooner than will permit adequate preparation of the case by counsel, or later than 30 days from the date of the initial detention.