2006 Louisiana Laws - RS 28:55 — Judicial hearings

§55.  Judicial hearings

A.  At the appointed time, the court shall conduct a hearing on the petition.  Before the hearing, the respondent may move for a change of venue to the parish of his domicile, which motion shall be granted only for compelling reasons.  If the respondent is confined to a hospital, the judge of the court where the petition was filed may hold the hearing on such commitment at the treatment facility where the person is confined, if in the opinion of at least one of the physicians appointed by the court to examine him, it will be detrimental to his health, welfare, or dignity to travel to the court where the petition was filed.

B.  The court shall provide respondent a reasonable opportunity to select his own counsel.  In the event the respondent does not select counsel and is unable to pay for counsel, or in the event counsel selected by respondent refuses to represent said respondent or is not available for such representation, then the court shall appoint counsel for respondent provided by the mental health advocacy service.  Reasonable compensation of appointed counsel shall be established by the court and may be ordered paid by respondent or petitioner in the discretion of the court if either is found financially capable.  If it is determined by the court that the costs shall not be borne by the respondent or the petitioner, then compensation to the attorney shall be paid from funds appropriated to the judiciary.

C.  The respondent shall have the right to privately retained and paid counsel at any time.  However, all respondents must be represented by counsel as early as possible in every proceeding.  If attorneys are available through the mental health advocacy service, the court shall contact the office of the service and request the assignment of an attorney who will be appointed.  In cases where the service is unable to provide representation, the court shall select and appoint an attorney to represent the respondent, whose fee shall be set by the court.  An attorney appointed to represent a person by a court pursuant to this Title has a continuing duty toward that person even after admission.  That duty shall include, but not be limited to, follow-up investigation of the circumstances of the person and representation in subsequent proceedings relating to admission, status, and discharge.  The duty shall continue until it is terminated by the court making the appointment.

D.  On the day appointed, the hearing shall take precedence over all other matters, except pending cases of the same type.  The court shall conduct the hearing in as formal a manner as is possible under the circumstances and shall admit evidence according to the usual rules of evidence.  Witnesses and evidence tending to show that the person who is the subject of the petition is a proper subject for judicial commitment shall be presented first.  The respondent has a right to be present unless the court finds that he knowingly, voluntarily, and intelligently waives his presence.  The respondent or his counsel shall have the right to present evidence and cross examine witnesses who may testify at the hearing.  If the respondent is present at the hearing and is medicated, the court shall be informed of the medication and its common effects.  If the respondent or his attorney notifies the court not less than three days before the hearing that he wishes to cross examine the examining physicians, the court shall order such physicians to appear in person or by deposition.  The court shall cause a recording of the testimony of the hearing to be made, which shall be transcribed only in the event of an appeal from the judgment.  A copy of such transcript shall be furnished without charge, to any appellant whom the court finds unable to pay for the same.  The cost of such transcript shall be paid from funds appropriated to the judicial department.

E.(1)  If the court finds by clear and convincing evidence that the respondent is dangerous to self or others or is gravely disabled, as a result of substance abuse or mental illness, it shall render a judgment for his commitment.  After considering all relevant circumstances, including any preference of the respondent or his family, the court shall determine whether the respondent should be committed to a treatment facility which is medically suitable and least restrictive of the respondent's liberty.  However, if the placement determined by the court is unavailable, the court shall commit the respondent to the Department of Health and Hospitals for placement in a state treatment facility until such time as an opening is available for transfer to the treatment center determined by the court, unless the respondent waives the requirement for such transfer.  Within fifteen days following an alternative placement, the department shall submit a report to the court stating the reasons for such placement and seeking court approval of the placement.

(2)  Following commitment of the respondent to the department, the department shall consider all of the following in determining the appropriate state treatment facility in which to place the respondent:

(a)  The medical needs of the respondent.

(b)  The treatment programs available at each treatment facility.

(c)  The facility which would be least restrictive of the respondent's liberty.

(d)  The availability of space at the respective treatment facilities.

(e)  The preference of the respondent and the proximity of the respondent's family to the location of the facility.

(3)  Unless prohibited by the respondent, the department shall notify the respondent's family of his placement at and/or transfer to a state treatment facility.

(4)  The director shall notify the court in writing when a patient has been discharged or conditionally discharged.

(5)  The court order shall order a suitable person to convey such person to the treatment facility and deliver respondent, together with a copy of the judgment and certificates, to the director.  In appointing a person to execute the order, the court should give preference to a near relative or friend of the respondent.

(6)  The court may, if it finds it to be in the best interest of the respondent, revoke the certificate or judgment of commitment.

F.  Notice of any action taken by the court shall be given to the respondent and his attorney as well as to the director of the designated treatment facility in such manner as the court concludes would be appropriate under the circumstances.

G.  Each court shall keep a record of the cases relating to mentally ill persons coming before it under this Title and the disposition of them.  It shall also keep on file the original petition and certificates of physicians required by this Section, or a microfilm duplicate of such records.  All records maintained in the courts under the provisions of this Section shall be sealed and available only to the respondent or his attorney, unless the court, after hearing held with notice to the respondent, determines such records should be disclosed to a petitioner for cause shown.

H.  Every patient admitted by judicial commitment shall be informed in writing at the time of admission of the procedures for requesting release from the treatment facility, the availability of counsel, information about the mental health advocacy service, the rights enumerated in R.S. 28:171, and the rules and regulations applicable to or concerning his conduct while a patient in the treatment facility.  If the person is illiterate or does not read or understand English, appropriate provisions should be made to supply him this information.  In addition a copy of the information listed in this Subsection must be posted in any area where patients are confined and treated.

I.(1)(a)  A patient confined to a treatment facility by judicial commitment may receive medication and treatment without his consent, but no major surgical procedures or electroshock therapy may be performed without the written authority of a court of competent jurisdiction after a hearing.  With regard to the administration of medicine, if the patient objects to being medicated, prior to making a final decision, the treating physician shall make a reasonable effort to consult with the primary physician or the primary care provider outside of the facility that has previously treated the patient for his mental condition.  The treating physician shall, prior to the administration of such medication, record in the patient's file either the date and time of the consultation and a summary of the comments of the primary physician or primary care provider or, if the treating physician is unable to consult with the primary physician or primary care provider the date and time that a consultation with the primary physician or primary care provider was attempted.

(b)  Notwithstanding the provisions of Subparagraph (a) of this Paragraph, any licensed physician may administer medication to a patient without his consent and against his wishes in situations which, in the reasonable judgment of the physician who is observing the patient during the emergency, constitutes a psychiatric or behavioral emergency.  For purposes of this Paragraph, a "psychiatric or behavioral emergency" occurs when a patient, as a result of mental illness, substance abuse, or intoxication engages in behavior which, in the clinical judgment of the physician, places the patient or others at significant and imminent risk of damage to life or limb.  The emergency administration of medication may be continued until the emergency subsides, but in no event shall it exceed forty-eight hours, except on weekends or holidays when it may be extended for an additional twenty-four hours.

(c)  The physician shall make a reasonable effort to consult with the primary physician or primary care provider outside the facility that has previously treated the patient for his mental condition at the earliest possible time, but in no event more than forty-eight hours after the emergency administration of medication has begun, except on weekends or holidays, when the time period may be extended an additional twenty-four hours.  The physician shall record in the patient's file either the date and time of the consultation and a summary of the comments of the primary physician or primary care provider or, if the physician is unable to consult with the primary physician or primary care provider the date and time that a consultation with the primary physician or primary care provider was attempted.

(2)  If the director of the hospital, in consultation with two physicians, determines that the condition of a committed patient is of such critical nature that it may be life-threatening unless major surgical procedures or electroshock treatment is administered, such measures may be performed without the consent otherwise provided for in this Section.

J.  No director of a treatment facility shall prohibit any mentally ill person or person suffering from substance abuse from applying for conversion of involuntary or emergency admission status to voluntary admission status.  Any patient on an involuntary admission status shall have the right to apply for a writ of habeas corpus to have his admission status changed to voluntary status.

Amended by Acts 1954, No. 701, §1; Acts 1972, No. 154, §1; Acts 1977, No. 714, §1; Acts 1978, No. 782, §1, eff. July 17, 1978; Acts 1992, No. 798, §1, eff. July 7, 1992; Acts 1993, No. 427, §1, eff. June 9, 1993; Acts 1993, No. 891, §1, eff. June 23, 1993; Acts 1993, No. 899, §1; Acts 2001, No. 192, §1; Acts 2006, No. 664, §1.

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