Note:

Changes in the laws, rules and regulations since the 2001 edition of the LSBEP Directory and Statutory Reference book appear in boldface type in this 2002 edition.

Mental Health Law, La. R.S. 28:2-66, 171 (1992)

§ 2. Definitions

         Whenever used in this Title, the masculine shall include the feminine, the singular shall include the plural, and the following definitions shall apply:

                (1) “Conditional discharge” means the physical release of a judicially committed person from a treatment facility by the director or by the court. The patient may be required to report for outpatient treatment as a condition of his release. The judicial commitment of such persons shall remain in effect for a period of up to one year and during this time the person may be hospitalized involuntarily for appropriate medical reasons upon court order.

                (2) “Court” means any duly constituted district court or court having family or juvenile jurisdiction. “Court” does not include a city court, which shall have no jurisdiction to commit persons to mental health treatment facilities in civil or criminal proceedings, except when exercising juvenile jurisdiction.

                (3) “Dangerous to others” means the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict physical harm upon another person in the near future.

                (4) “Dangerous to self” means the condition of a person whose behavior, significant threats or inaction supports a reasonable expectation that there is a substantial risk that he will inflict physical or severe emotional harm upon his own person.

                (5) “Diagnosis” means the art and science of determining the presence of disease in an individual and distinguishing one disease from another.

                (6) “Director” or “superintendent” means a person in charge of a treatment facility or his deputy.

                (7) “Discharge” means the full or conditional release from a treatment facility of any person admitted or otherwise detained under this Chapter.

                (8) “Department” means the Department of Health and Hospitals.

                (9) “Formal voluntary admission” means the admission of a person suffering from mental illness or substance abuse desiring admission to a treatment facility for diagnosis and/or treatment of such condition who may be formally admitted upon his written request. Such persons may be detained following a request for discharge pursuant to R.S. 28:52.2

                (10) “Gravely disabled” means the condition of a person who is unable to provide for his own basic physical needs, such as essential food, clothing, medical care, and shelter, as a result of serious mental illness or substance abuse and is unable to survive safely in freedom or protect himself from serious harm; the term also includes incapacitation by alcohol, which means the condition of a person who, as a result of the use of alcohol, is unconscious or whose judgment is otherwise so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment.

                (11) “Informal voluntary admission” means the admission of a person suffering from mental illness or substance abuse, desiring admission to a treatment facility for diagnosis and/or treatment of such condition who may be admitted upon his request without making formal application.

                (12) “Major surgical procedure” means an invasive procedure of a serious nature with incision upon the body or parts thereof under general, local or spinal anesthesia, utilizing surgical instruments, for the purpose of diagnosis or treatment of a medical condition. Diagnostic procedures, including, but not limited to, the following, shall not be considered as major surgical procedures:

                        (a) Endoscopy through natural body openings, such as the mouth, anus, or urethra, to view the trachea, bronchi, esophagus, stomach, pancreas, small or large intestine, urethra, urinary bladder, or ureters, and to obtain from such organs specimens of fluids or tissues for chemical or microscopic analysis.

                        (b) Sub-cutaneous percutaneous liver biopsy.

                        (c) Punch biopsy of skeletal muscles.

                        (d) Bone marrow biopsy.

                        (e) Lumbar puncture.

                        (f) Myelogram.

                        (g) Thoracocentesis.

                        (h) Abdominocentesis.

                        (i) Conization of the uterine cervix.

                        (j) Renal angiography.

                        (k) Femoral angiography.

                        (l) Carotid angiography.

                        (m) Vertebral angiography.

                (13) “Mental health advocacy service” means a service established by the state of Louisiana for the purpose of providing legal counsel and representation for mentally disabled persons and to insure that their legal rights are protected.

                (14) “Mentally ill person” means any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment. It does not refer to a person suffering soley from mental retardation, epilepsy, alcoholism, or drug abuse.

                (15) “Minor” means a person under eighteen years of age.

                (16) “Parent” means a person who is the biological mother or father of an individual or the legally adoptive mother or father of an individual.

                (17) “Patient” means any person detained and taken care of as a mentally ill person or person suffering from substance abuse.

                (18) “Peace officer” means any sheriff, police officer, or other person deputized by proper authority to serve as a peace officer.

                (19) “Person of legal age” means any person eighteen years of age or older.

                (20) “Petition” means a written civil complaint filed by a person of legal age alleging that a person is mentally ill or suffering from substance abuse and requires judicial commitment to a treatment facility.

                (21) “Physician” means a person permitted to practice and in active practice as a physician under the laws of Louisiana or a person in a post-graduate medical training program of an accredited medical school in Louisiana or a medical officer similarly qualified by the government of the United States while in the state in the performance of his official duties.

                (22)  (a) “Psychiatrist” means a physician who has at least three years of formal training or primary experience in the diagnosis and treatment of mental illness.

                        (b) “Psychologist” means a person licensed to practice psychology in Louisiana in accordance with R.S. 37:2351 et seq., and who has been engaged in the practice of clinical or counseling psychology for not less than three years.

                (23) “Respondent” means a person alleged to be mentally ill or suffering from substance abuse and for whom an application for commitment to a treatment facility has been filed.

                (24) “Restraint” means the partial or total immobilization of any or all of the extremities or the torso by mechanical means for psychiatric indications.  Restraint does not include the use of mechanisms usually and customarily used during medical or surgical procedures, including but not limited to, body immobilization during surgery and arm immobilization during intravenous administration.  Restraint does not include orthopedic appliances used to posturally suppor the patient, such as posies.

                (25)  "Seclusion" means the involuntary confinement of a patient alone in a room where the patient is physically prevented from leaving for any period of time, except that seclusion does not include the placement of a patient alone in a room or other area for no more than thirty minutes at a time and no more than three hours in any twenty-four hour period pursuant to behavior-shaping techniques such as "time-out".

                (26) “Substance abuse” means the condition of a person who uses narcotic, stimulant, depressant, soporific, tranquilizing, or hallucinogenic drugs or alcohol to the extent that it renders the person dangerous to himself or others or renders the person gravely disabled.

                (27) “Transfer” means the removal of a patient from one mental institution to another without any procedure for admission other than is prescribed by the department.

                (28) “Treatment” means an active effort to accomplish an improvement in the mental condition or behavior of a patient or to prevent deterioration in his condition or behavior. Treatment includes, but is not limited to, hospitalization, partial hospitalization, outpatient services, examination, diagnosis, training, the use of pharmaceuticals, and other services provided for patients by a treatment facility.

                (29)  (a) “Treatment facility” means any public or private hospital, retreat, institution, mental health center, or facility licensed by the state in which any mentally ill person or person suffering from substance abuse is received or detained as a patient. The term includes Veterans Administration and public health hospitals and forensic facilities. “Treatment facility” includes, but is not limited to, the following, and shall be selected with consideration of first, medical suitability; second, least restriction of the person’s liberty; third, nearness to the patient’s usual residence; and fourth, financial or other status of the patient, except that such considerations shall not apply to forensic facilities:

                                 ( i ) Community mental health centers.

                                 (ii)  Private clinics.

                                 (iii) Public or private halfway houses.

                                 (iv) Public or private nursing homes.

                                 (v)   Public or private general hospitals.

                                 (vi)  Public or private mental hospitals.

                                 (vii) Detoxification centers.

                                 (viii) Substance abuse clinics.

                                 (ix)  Substance abuse in-patient facility.

                                 (x)   Forensic facilities.

                        (b) Patients involuntarily hospitalized by emergency certificate or mental health treatment shall not be admitted to the facilities listed in Items (ii), (iii), (iv), (viii), or (x) of this Subparagraph, except that patients in custody of the Department of Public Safety and Corrections may be admitted to forensic facilities by emergency certificate provided that judicial commitment proceedings are initiated during the period of treatment at the forensic facility authorized by emergency certificate. Patients involuntarily hospitalized by emergency certificate for substance abuse treatment shall not be admitted to the facilities listed in Items (ii), (iii), (iv), or (x) of this Subparagraph. Judicial commitments, however, may be made to any of the above facilities except forensic facilities. However, in the case of any involuntary hospitalization as a result of such emergency certificate for substance abuse or in the case of any judicial commitment as the result of substance abuse, such commitment or hospitalization may be made to any of the above facilities, except forensic facilities, provided that such facility has a substance abuse in-patient operation maintained separate and apart from any mental health in-patient operation at such facility.

                        (c) “Treatment facility” shall not include a jail or prison of any kind, or any facility under the control or supervision of the Department of Public Safety and Corrections unless the facility has been designated by the Department of Health and Human Resources and the Department of Public Safety and Corrections as a treatment facility pursuant to R.S. 15:830.1(B); however, a jail or prison shall not be construed as a forensic facility. Only adult inmates sentenced to the Department of Public Safety and Corrections may be admitted to a treatment facility designated pursuant to R.S. 15:830.1(B).

§ 50. Declaration of policy

         The underlying policy of this Chapter is as follows:

                (1) That mentally ill persons and persons suffering from substance abuse be encouraged to seek voluntary treatment.

                (2) That any involuntary treatment or evaluation be accomplished in a setting which is medically appropriate, most likely to facilitate proper care and treatment that will return the patient to the community as soon as possible, and is the least restrictive of the patient’s liberty.

                (3) That continuity of care for the mentally ill and persons suffering from substance abuse be provided.

                (4) That mental health and substance abuse treatment services be delivered as near to the place of residence of the person receiving such services as is reasonably possible and medically appropriate.

                (5) That individual rights of patients be safeguarded.

                (6) That no person solely as a result of mental illness or alcoholism or incapacitation by alcohol shall be confined in any jail, prison, correctional facility, or criminal detention center. This shall not apply to persons arrested, charged, or convicted under Title 14 of the Louisiana Revised Statutes of 1950.

                (7) That no person shall be denied treatment solely because he has withdrawn from treatment against medical advice on a prior occasion or because he has relapsed after an earlier treatment.

§ 51. Procedures for admission

         A. The director of a treatment facility, subject to the availability of suitable accommodations, shall receive for observation, diagnosis, care, and treatment, any person whose admission is authorized under any of the procedures provided for in R.S. 28:52 through R.S. 28:54 and R.S. 28:64.

         B. The failure by any director to obey an order or judgment committing a patient to a treatment facility shall not be construed as contempt of any court, if it appears that the failure to obey is due to the inability to comply with the order or judgment because medically suitable accommodations for the patient are unavailable.

         C. The Department of Health and Human Resources, through its hospitals, mental health clinics and similar institutions, shall have the duty to assist petitioners and other persons in the preparation of petitions for commitment, requests for protective custody orders and requests for emergency certificates, upon request of such persons.

§ 52. Voluntary admission; general provisions

         A. Any mentally ill person or person suffering from substance abuse may apply for voluntary admission to a treatment facility. The admitting physician may admit the person on either a formal or informal basis, as hereinafter provided.

         B. Admitting physicians are encouraged to admit mentally ill persons or persons suffering from substance abuse to treatment facilities on voluntary admission status whenever medically feasible.

         C. 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 in order to have his admission status changed to voluntary status.

         D. No employee of a mental health care program or treatment facility, peace officer, or physician shall state to any person that involuntary admission may result if such person does not voluntarily admit himself to a mental health care program or treatment facility unless the employee, peace officer, or physician is prepared to execute a certificate pursuant to R.S. 28:53 or a petition pursuant to R.S. 28:54.

         E. Each person admitted on a voluntary basis shall be informed of any other medically appropriate alternative treatment programs and treatment facilities known to the admitting physician and be given an opportunity to seek admission to alternative treatment programs or facilities.

         F. Every patient admitted on a voluntary admission status 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 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.

         G. No admission may be deemed voluntary unless the admitting physician determines that the person to be admitted has the capacity to make a knowing and voluntary consent to the admission.

Knowing and voluntary consent shall be determined by the ability of the individual to understand:

                (1) That the treatment facility to which the patient is requesting admission

is one for mentally ill persons or persons suffering from substance abuse;

                (2) That he is making an application for admission, and

                (3) The nature of his status and the provisions governing discharge or conversion to an involuntary status.

         H. Voluntary patients may receive medications or treatment, but no major surgical procedure or electroshock therapy may be performed upon such patient, without the patient's written and informed consent.  If it is determined by the director of the treatment facility that a voluntary patient has become incapable of making an informed consent for such procedure, he shall apply to a court of competent jurisdiction for a determination of the patient's specific incompetence to give informed consent for the procedure.  If the director, in consultation with two physicians, determines that the condition of a voluntary patient who is incapable of informed consent is of such critical nature that it may be life-threatening unless major surgical procedures or electroshock treatment is administered, the emergency measures may be taken without the consent otherwise provided for in this Section.  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 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, if the treating physician is unable to consult with the primary physician, the date and time that a consultation with the primary physician was attempted.

§ 52.1. Informal voluntary admission

         A. In the discretion of the director, any mentally ill person or person suffering from substance abuse desiring admission to a treatment facility for diagnosis or treatment of a psychiatric disorder or substance abuse may be admitted upon the patient’s request without a formal application.

         B. Any patient admitted pursuant to this Section shall have the right to leave the treatment facility at any time during the normal day-shift hours of operation, which shall include but not be limited to nine a.m. to five p.m.

§ 52.2. Formal voluntary admission

         A. Any mentally ill person or person suffering from substance abuse desiring admission to a treatment facility for diagnosis and/or treatment of a psychiatric disorder or substance abuse and who is deemed suitable for formal voluntary admission by the admitting physician may be so admitted upon his written request.

         B. A patient admitted under the provisions of this Section shall not be detained in the treatment facility for longer than seventy-two hours after making a valid writted request for discharge to the director unless an emergency certificate is executed pursuant to R.S. 28:53, or unless judicial commitment is instituted pursuant to R.S. 28:54, after making a valid written request for discharge to the director of the treatment facility.

§ 52.3. Noncontested admission

         A. A mentally ill person or person suffering from substance abuse who does not have the capacity to make a knowing and voluntary consent to a voluntary admission status and who does not object to his admission to a treatment facility may be admitted to a treatment facility as a noncontested admission. Such person shall be subject to the same rules and regulations as a person admitted on a voluntary admission status and his treatment shall be governed by the provisions of R.S. 28:52H.

         B. A noncontested admission may be made by a physician to a treatment facility in order to initiate a complete diagnostic and evaluative study. The diagnosis and evaluation shall include complete medical, social, and psychological studies and, when medically indicated, any other scientific study which may be necessary in order to make decisions relative to the treatment needs of the patient. In the absence of specified medical reasons, the diagnostic studies shall be completed in fourteen days. Alternative community-based services shall be thoroughly considered.

         Following a review of the diagnostic evaluation study, the director of the treatment facility shall determine if the person is to remain on noncontested status, is to be discharged, is to be converted to formal or informal voluntary status, or is to be involuntarily hospitalized pursuant to R.S. 28:53 or R.S. 28:54. Nothing in this Section shall be interpreted to prohibit the director of a treatment facility from transferring the patient to another treatment facility when it is medically indicated.

         C. A person admitted pursuant to this Section may object to his admission at any time. If the person informs a staff member of his desire to object to his admission, a staff member shall assist him in preparing and submitting a valid written objection to the director. Upon receipt of a valid objection, the director shall release the person within seventy-two hours unless proceedings are instituted pursuant to R.S. 28:53 and R.S. 28:54.

         D. In no case shall a patient remain on noncontested status longer than three months. Within that time, the patient must be converted to either a formal or an informal voluntary status, or be involuntarily hospitalized pursuant to R.S. 28:53 or R.S. 28:54, or be discharged.

§ 52.4. Admission by relative

         A. A person suffering from substance abuse may be admitted and detained at a public or private general hospital or a substance abuse in-patient facility for observation, diagnosis, and treatment for a period not to exceed twenty-eight days, when a parent, spouse, or the major child of the person if that child has attained the age of 18 years has admitted the person or caused him to be admitted pursuant to the provisions of R.S. 28:53.2.

         B. At the time of admission of the person, the parent, spouse, or the major child of the person if that child has attained the age of 18 years shall execute or provide a written statement of facts, including personal observations, leading to the conclusion that the person is suffering from substance abuse and is dangerous to himself or others or is gravely disabled, specifically describing any dangerous acts or threats, and stating that the person has been encouraged to seek treatment but is unwilling to be evaluated on a voluntary basis.

         C. As soon as practicable, but in no event more than twelve hours after admission to the hospital or in-patient facility, a physician shall examine the person and either execute an emergency certificate in accordance with R.S. 28:53(B) or order the person discharged. lf an emergency certificate is executed, the physician or the director of the hospital or in-patient facility shall immediately notify the coroner, and the coroner or his deputy shall conduct an independent examination, in accordance with R.S. 28:53(G). If the coroner or his deputy executes a second emergency certificate, the person may be detained for treatment for a period not to exceed twenty-eight days from the date of his admission. Otherwise, he shall be discharged.

         D. Except as inconsistent with the provisions of this Section, all other provisions of this Part applicable to persons admitted by emergency certificate shall be applicable to persons admitted pursuant to this Section.

§ 53. Admission by emergency certificate; extension

         A.    (1) A mentally ill person or a person suffering from substance abuse may be admitted and detained at a treatment facility for observation, diagnosis, and treatment for a period not to exceed fifteen days under an emergency certificate.

                (2) A person suffering from substance abuse may be detained at a treatment facility for one additional period, not to exceed fifteen days, provided that a second emergency certificate is executed. A second certificate may be executed only if and when a physician at the treatment facility and any other physician have examined the detained person within seventy-two hours prior to the termination of the initial fifteen day period and certified in writing on the second certificate that the person remains dangerous to himself or others or gravely disabled, and that his condition is likely to improve during the extended period. The director shall inform the patient of the execution of the second certificate, the length of the extended period, and the specific reasons therefore and shall also give notice of the same to the patient’s nearest relative or other designated responsible party initially notified pursuant to Subsection F.

         B.    (1) Any physician or psychologist may execute an emergency certificate only after an actual examination of a person alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate care and treatment in a treatment facility because the examining physician or psychologist determines the person to be dangerous to self or others or to be gravely disabled. Failure to conduct an examination prior to the execution of the certificate will be evidence of gross negligence.

                (2) The certificate shall state:

                        (a) The date of the physician’s or psychologist’s examination of the person, which shall not be more than seventy-two hours prior to the date of the signature of the certificate.

                        (b) The objective findings of the physician or psychologist relative to the physical or mental condition of the person, leading to the conclusion that the person is dangerous to self or others or is gravely disabled as a result of substance abuse or mental illness.

                        (c) The history of the case, if known.

                        (d) The determination of whether the person examined is in need of immediate care and treatment in a treatment facility because the patient is either:

                                 (i) dangerous to himself;

                                 (ii) dangerous to others; or

                                 (iii) gravely disabled.

                        (e) That the person is unwilling or unable to seek voluntary admission.

                (3)  The certificate shall be dated and executed under the penalty of perjury, but need not be notarized.  The certificate shall be valid for seventy-two hours and shall be delivered to the director of the treatment facility where the person is to be further evaluated and treated.

         C. A patient may request the director of the treatment facility to advise the executive director of the mental health advocacy service of his admission and may request representation.

         D. Prior to or during confinement, under the provisions of this Title, any person or his attorney shall have the right to demand a judicial hearing to determine if probable cause exists for his continued confinement under an emergency certificate. The hearing shall be held within five days of the filing of the petition. The petition shall be filed in the court of the jurisdiction in which the patient is confined. The hearing shall be held in that court and no other except for good cause shown. If the person is confined, the judge of the court where the petition was filed may hold the hearing at the treatment facility where the person is confined, if in the opinion of the director of the treatment facility it will be detrimental to the patient’s health, welfare or dignity, to travel to the court where the petition was filed. Pending the decision of the court, the patient shall remain confined unless the court orders release or a less restrictive status.

         E. The attorney of any patient in a treatment facility may review his client’s medical record. If deemed essential by the attorney, portions of the record specifically required for proper representation pursuant to this Title, may be copied and given to the patient’s attorney. The attorney shall return all copies of his client’s medical record to the treatment facility upon completion of their use.

         F. An emergency certificate shall constitute legal authority to transport a patient to a treatment facility and shall permit the director of such treatment facility to detain the patient for diagnosis and treatment for a period not to exceed fifteen days, and to return the patient to the facility if he is absent with or without permission during authorized periods of detention. If necessary, peace officers shall apprehend and transport, or ambulance services, under appropriate circumstances, may locate and transport, a patient on whom an emergency certificate has been completed to a treatment facility at the request of either the director of the facility, the certifying physician or psychologist, the patient’s next of kin, the patient’s curator, or the agency legally responsible for his welfare. The director of the treatment facility shall notify the patient’s nearest relative, if known, or designated responsible party, if any, in writing, of the patient’s admission by emergency certificate as soon as reasonably possible.

         G.    (1) Upon admission of any person by emergency certificate to a treatment facility, the director of the treatment facility shall immediately notify the coroner of the parish in which the treatment facility is located of the admission, giving the following information if known: the person’s name, address, date of birth, name of certifying physician or psychologist, date and time of admission, and the name and address of the treatment facility.

                (2) Within seventy-two hours of admission, the person shall be independently examined by the coroner or his deputy who shall execute an emergency certificate, pursuant to Subsection B, which shall be a necessary precondition to the person’s continued confinement.

                (3) However, in the event that the coroner has made the initial examination and executed the first emergency commitment certificate then a second examination shall be made within the seventy-two hour period set forth in this Part by any physician at the treatment facility where the person is confined.

                (4) In making either the initial examination or the second examination, when the coroner or his deputy examines the person and executes an emergency certificate and a reexamination of the person and reexecution of a certificate is necessary for any reason to insure the validity of the certificate, both the first examiner and the reexaminer shall be entitled to the fee for the service, unless they are one and the same.

                (5) If, from his examination, the coroner concludes that the person is not a proper subject for emergency admission, then the person shall not be further detained in the treatment facility and shall be discharged by the director forthwith.

                (6) When a person is confined in a treatment facility other than a state mental institution, the examining coroner in the parish where the patient is confined shall be entitled to the usual fee paid for this service to the coroner of the parish in which the patient is domiciled or residing. When a person is confined in a state mental institution in a parish other than his parish of domicile or residence, the examining coroner shall be entitled to the fee authorized by law in his parish for the service. In either case, the fee shall be paid and accurate records of such payments kept by the governing authority of the parish in which the patient is domiciled or residing from parish funds designated for the purpose of payment to the coroner. All coroners shall keep accurate records showing the number of patients confined in their parishes pursuant to this Section.

         H. If the patient admitted to a treatment facility pursuant to this Section is a proper candidate for judicial commitment pursuant to R.S. 28:54, the director of the treatment facility, or any interested party, may apply for such commitment under provisions of that Section. Such a patient, hospitalized on an emergency certificate, for whom a petition for judicial commitment has been filed in court may continue to be detained for a further period on order of the court.

         I. Every patient admitted by emergency certificate shall be informed in writing at the time of his admission of the procedures of 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 mentioned in this Subsection must be posted in any area where patients are confined and treated.

         J.     (1) Upon the request of a credible person of legal age who is financially unable to afford a private physician or who cannot immediately obtain an examination by a physician, the parish coroner may render, or the coroner or a judge of a court of competent jurisdiction may cause to be rendered by a physician, an actual examination of a person alleged to be mentally ill or suffering from substance abuse and in need of immediate medical treatment because he is dangerous to himself or others or is gravely. disabled. If the coroner is not a physician he may deputize a physician to perform this examination. To accomplish the examination authorized by this Subsection, if the coroner or the judge is apprehensive that his own safety or that of the deputy or other physician may be endangered thereby, he shall issue a protective custody order pursuant to R.S. 28:53.2.

                (2) If the examining physician determines that the above standard is met, he shall execute an emergency certificate and shall transport or cause to be transported the person named in the emergency certificate to a treatment facility. Failure to render an actual examination prior to execution of the emergency certificate shall be evidence of gross negligence.

                (3) In any instance where the coroner or his deputy executes the first emergency certificate, the second emergency certificate shall not be executed by the coroner or his deputy, but the second emergency certificate may be executed by any other physician including a physician at the treatment center. Amended by Acts 1989, No. 204, § 1.

         K. No patient admitted by emergency certificate may receive medication or treatment unless the patient consents, or in accordance with R.S. 28:65. No major surgical procedure or electroshock therapy may be performed without the written consent of a court of competent jurisdiction after a hearing.

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

§ 53.2. Order for custody; grounds; and liability

         A. Any parish coroner or judge of a court of competent jurisdiction may order a person to be taken into protective custody and transported to a treatment facility or the office of the coroner for immediate examination when a peace officer or other credible person executes a statement under private signature specifying that, to the best of his knowledge and belief, the person is mentally ill or suffering from substance abuse and is in need of immediate treatment to protect the person or others from physical harm. The statement may include the following information:

                (1) A statement of facts, including the affiant’s observations, leading to the conclusion that the person is mentally ill or suffering from substance abuse and dangerous to himself or others or gravely disabled.

                (2) The date and place of any dangerous acts or threats.

                (3) The name and surname, if known, of any other person who is in danger.

                (4) Facts showing that the person sought has been encouraged to seek treatment and is unwilling to be evaluated on a voluntary basis, and

                (5) Facts showing that the affiant has attempted to contact a specific treatment facility or a specific physician in order to obtain an examination of the person sought to be treated.

         B. The order for custody shall be in writing, in the name of the state of Louisiana, signed by the district judge or parish coroner, and shall state the following:

(1)     The date and hour of issuance and the municipality or parish where issued.              

(2)     The name of the person to be taken into custody, or if his name is not known a designation of the person by any name or description by which he can be identified with reasonable certainty.

                (3) A description of the acts or threats which have led to the belief that the person is mentally ill or suffering from substance abuse and is in need of immediate hospitalization to protect the person or others from physical harm, and

                (4) That the person shall be taken to a community mental health center, a public or private general hospital, a public or private mental hospital, coroner’s office or a detoxification center.

         C. The order for custody shall be effective for seventy-two hours from its issuance and shall be delivered to the coroner or director of the treatment facility by the individual who has transported the person. The date and hour that the person is taken into protective custody shall be written on the order. Without delay, and in no event more than twelve hours after being taken into protective custody, the person shall be delivered to a treatment facility or the office of the coroner or he shall be released. Upon arrival, the person in custody shall be examined immediately by the coroner, or, if at a treatment facility, by a physician, preferably a psychiatrist, who shall determine if the person shall be voluntarily admitted, admitted by emergency certificate, admitted as a noncontested admission, or discharged. The person in custody shall be examined within twelve hours of his arrival at the treatment facility or coroner’s office or he shall be released.

§ 54. Judicial commitment; procedure

         A. Any person of legal age may file with the court a petition which asserts his belief that a person is suffering from mental illness which contributes or causes that person to be a danger to himself or others or to be gravely disabled, or is suffering from substance abuse which contributes or causes that person to be a danger to himself or others or to be gravely disabled and may thereby request a hearing. The petition may be filed in the judicial district in which the respondent is confined, or if not confined, in the judicial district where he resides or may be found. The hearing shall not be transferred to another district except for good cause shown. A petitioner who is unable to afford an attorney may seek the assistance of any legal aid society or similar agency if available.

         B. The petition shall contain the facts which are the basis of the assertion and provide the respondent with adequate notice and knowledge relative to the nature of the proceedings.

         C. Upon the filing of the petition, the court shall assign a time, not later than eighteen calendar days thereafter, shall assign a place for a hearing upon the petition, and shall cause reasonable notice thereof to be given to the respondent, respondent’s attorney and the petitioner. The notice shall inform such respondent that he has a right to be present at the hearing; that he has a right to counsel; that he, if indigent or otherwise qualified, has the right to have counsel appointed to represent him by the Mental Health Advocacy Service, and that he has the right to cross examine witnesses testifying at any hearing on such application.

         D.    (1) As soon as practical after the filing of the petition, the court shall review the petition and supporting documents and determine whether there exists probable cause to believe that the respondent is suffering from mental illness which contributes or causes him to be a danger to himself or others or to be gravely disabled, or is suffering from substance abuse which contributes or causes him to be a danger to himself or others or to be gravely disabled. If the court determines that probable cause exists, the court may appoint the respondent’s treating physician if available, or if none, then another physician, preferably a psychiatrist, to examine respondent and make a written report to the court and respondent’s attorney on the form provided by the office of human services of the Department of Health and Hospitals. This report shall set forth specifically the objective factors leading to the conclusion that the person has a mental illness or suffers from substance abuse, the actions or statements by the person leading to the conclusion that the mental illness or substance abuse causes the person to be dangerous to himself or others or to be gravely disabled and in need of immediate treatment as a result of such illness or abuse, and why involuntary confinement and treatment are indicated. The following criteria should be considered by the physician:

                        (a) The respondent is suffering from serious mental illness which contributes or causes him to be dangerous to himself or others or to be gravely disabled or from substance abuse which contributes or causes him to be dangerous to himself or others or to be gravely disabled.

                        (b) The respondent’s condition is likely to deteriorate needlessly unless he is provided appropriate medical treatment.

                        (c) The respondent’s condition is likely to improve if he is provided appropriate medical treatment.

                (2) The respondent or his attorney shall have the right to seek an additional independent medical opinion, when necessary, in their discretion. If the respondent is indigent, this opinion may be paid for by the Mental Health Advocacy Service, upon the approval of its executive director. Reasonable compensation of the appointed examining physicians and all court costs shall be established by the court and ordered paid by respondent or petitioner in the discretion of the court. If it is determined by the court that the costs shall not be borne by the respondent or the petitioner, then compensation to the physicians and all court costs shall be paid from funds appropriated to the judiciary, but such court costs shall not exceed the sum of seventy-five dollars.

                (3) If the respondent refuses to be examined by the court appointed physician as herein provided, or if the judge, after review of the petition and an affidavit filed pursuant to R.S. 28:53.2, or the report of the treating physician or the court appointed physician, finds that the respondent is mentally ill or suffering from substance abuse and is in need of immediate hospitalization to protect such person or others from physical harm, or that the respondent’s condition may be markedly worsened by delay, then the court may issue a court order for custody of the respondent and a peace officer shall deliver the respondent to a treatment facility designated by the court. The court shall also issue an order to the treatment facility, authorizing detention of the respondent until the commitment hearing is completed, unless he is discharged by the director.

                (4) Unless the individual is currently hospitalized or under an emergency certificate, he shall be allowed to remain in his home or other place of residence pending an ordered examination and to return to his home or other place of residence upon completion of the examination. An examining physician may execute an emergency certificate pursuant to R.S. 28:53 if he deems that action appropriate. In such a case, the respondent shall be admitted pursuant to R.S. 28:53 pending the hearing on the petition.

§ 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 and 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 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. 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 to a designated treatment facility which is medically suitable and least restrictive of his liberty. The director shall notify the court in writing when a patient has been discharged or conditionally discharged. 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. 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. No patient confined to a treatment facility by judicial commitment may receive medication or treatment unless the patient consents, or in accordance with R.S. 28:65. No major surgical procedures or electroshock therapy may be performed without the written authority of a court of competent jurisdiction after a hearing.

         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 admissions status changed to voluntary status.

§ 56. Judicial commitment; review; appeals

         A. All judicial commitments except those for alcoholism shall be reviewed by the court issuing the order for commitment after the first sixty and after one hundred twenty days of commitment and every one hundred eighty days thereafter. A commitment for alcoholism shall expire after forty-five days and the patient, if not converted to a voluntary status, shall be discharged, unless the court, upon application by the director of the treatment facility, finds that continued involuntary treatment is necessary and orders that patient recommitted for a period not to exceed sixty days; provided, that not more than two such sixty day recommitments may be ordered in connection with the same continuous confinement. The director of the treatment facility to which the person has been judicially committed shall issue reports to the court at these intervals setting forth the patient’s response to treatment, his current condition, and the reasons why continued involuntary treatment is necessary to improve the patient’s condition or to prevent it from deteriorating. These reports shall be treated by the court as confidential and shall not be available for public examination, nor shall they be subject to discovery in any proceedings other than those initiated pursuant to this Title.

         B. The court may at any time upon application or upon its own motion, order a new hearing to be held in order to determine whether the involuntary status should be continued. Patients committed judicially shall have their cases reviewed in a hearing annually. The annual hearing shall be conducted according to the procedures and standards set forth in R.S. 28:54, 55 and 56. The annual hearing may be held by the district court for the judicial district in which the patient is being confined, or if not confined, by the district court for the judicial district where he resides or may be found. The hearing shall not be transferred to another district except for good cause shown.

         C. Notwithstanding an order of judicial commitment, the director of the treatment facility to which the individual is committed is encouraged to explore treatment measures that are medically appropriate and less restrictive. The director may at any time convert an involuntary commitment to a voluntary one should he deem that action medically appropriate. He shall inform the court of any action in that regard. The director may discharge any patient if in his opinion discharge is appropriate. The director shall not be legally responsible to any person for the subsequent acts or behavior of a patient discharged in good faith.

         D. A person who is judicially committed shall be allowed to appeal devolutively from the order to the court of appeal. If the lower court finds the individual indigent, it shall allow the appeal to be taken in forma pauperis. Upon perfection of an appeal, it shall be heard in a summary manner, taking preference over all other cases except similar matters.

         E. Upon affirmation of the order of commitment, the individual may apply for appropriate writs from the supreme court which shall be heard in a summary manner.

         F. Nothing in this Title shall deny the right of habeas corpus, including an application based upon a change of circumstances.

         G.    (1) A person who is judicially committed may be conditionally discharged for a period of up to one year by the director or by the court. The patient may be required to report for outpatient treatment as a condition of his release. The terms and conditions of the conditional discharge shall be specifically set forth in writing and signed by the patient. A copy of the conditional discharge shall be given to the patient and explained to him before he is discharged.

                (2) If the patient is conditionally discharged by the director, a copy of the conditional discharge shall be sent to the court which judicially committed him. If the patient is conditionally discharged by the court, a copy of the conditional discharge shall be sent to the facility to which the patient has been committed.

                (3) If the patient does not comply with the terms and conditions of his conditional discharge, he is subject to any of the procedures for involuntary treatment, including, but not limited to, the issuance of an order for custody and the execution of an emergency certificate. A conditionally discharged patient who is confined pursuant to any of these involuntary procedures shall have all rights of an involuntary patient, including the right to demand a probable cause hearing, the right to periodic reports and review, and an annual hearing pursuant to Subsections A and B.

                (4) An extension of a conditional discharge may be granted upon application by the director of the treatment facility to the court and notification to respondent’s counsel of record. The court may grant the extension of the conditional discharge for a period of up to two years. No further extension may be made without a contradictory hearing. The burden of proof is on the director of the treatment facility to show why continued treatment is necessary.

         H. All patients presently unrepresented by privately retained counsel and who are the subject of involuntary commitment under any prior statute shall have their cases reviewed by attorneys provided by the mental health advocacy service within one year.

§ 59. Commitment of prisoners

         A. Any person acquitted of a crime or misdemeanor by reason of insanity or mental defect may be committed to the proper institution in accordance with the Code of Criminal Procedure Arts. 654 et seq.

         B. Any person who is determined to lack the capacity to proceed, who will not attain the capacity to proceed with his trial in the foreseeable future, and who is not a danger to himself or others, shall be discharged in accordance with Code of Criminal Procedure Arts. 648 et seq. However, this release is without prejudice to any right the state may have to institute civil commitment proceedings pursuant to R.S. 28:53 or R.S. 28:54. Furthermore, this person may be held in a treatment facility for a reasonable time period pending the judicial commitment hearing. If judicial commitment proceedings are necessary, they shall be instituted within seventy-two hours after a determination that the person will not attain the capacity to proceed with his trial.

         C. Any person serving sentence who becomes mentally ill may be committed to the proper institution in the manner provided for judicial commitment by the district court of the place of incarceration and contradictorily with the superintendent of the place of incarceration or with the sheriff of that parish. The period of commitment shall be credited against the sentence imposed by the court. The superintendent may transfer patients under sentence from one ward to another only upon authority of the committing court.

         D. The department shall designate institutions for the care of mental patients committed in accordance with this Section.

§ 63. Physician’s or psychologist’s standard of care

         A. Any licensed physician or psychologist exercising that degree of skill and care ordinarily employed, under similar circumstances by members of his profession in good standing in the same community or locality, and using reasonable care and diligence with his best judgment in the application of his skill, shall not be held civilly liable or subject to criminal prosecution for acts arising from his professional opinions, judgments, actions or duties pursuant to any of the provisions of this Part.

         B. Any licensed physician or psychologist who executes an emergency certificate shall be held to that degree of skill and care ordinarily employed, under similar circumstances by members of his profession in good standing in the same community or locality, and using reasonable care and diligence with his best judgment in the application of his skill.

         C. Any person who acts in good faith to assist in the apprehension or taking into protective custody and examination of a patient will not be subject to civil or criminal penalties. However, a person who willfully advises or participates in the making of a false application or certificate shall be imprisoned with or without hard labor for not more than two years or fined not more than ten thousand dollars, or both.

         D. Any apprehension or taking into protective custody and confinement made by law enforcement officers, ordered by a court or upon the certificate of a physician or psychologist under the procedures provided in this Title, is hereby declared to be an administrative act relative to the functions of their office, as required by law, and for which act they are specifically granted personal immunity, but not thereby relieved of their official responsibilities.

§ 64. Mental Health Advocacy Service; creation; board of trustees; organization; powers; duties

          A.   (1)  A Mental Health Advocacy Service is hereby created and shall be governed by a board of trustees. The Mental Health Advocacy Service shall be in the executive branch of state government, in the office of the governor pursuant to R.S. 36:4(B)(1)(v).

                (2) The service shall provide legal counsel to all patients requesting such service and who are admitted for treatment pursuant to this Chapter, including, but not limited to, voluntary or involuntary admission, commitment, legal competency, change of status, transfer, and discharge.

                (3) The service shall be governed by a board of trustees consisting of nine members to be made up of the deans of the law schools of their designated faculty members from Loyola University of the South, Southern University and Agricultural and Mechanical College Law Schools and from the medical and law schools of Louisiana State University and Agricultural and Mechanical College and Tulane University of Louisiana, the president of the Mental Health Association of Louisiana or his representative, and a selected member from the Louisiana Medical Society and the Louisiana State Bar Association.

         B. Members of the board shall be reimbursed actual expenses incurred in the performance of their duties.

         The board of trustees shall:

                (1) Appoint a director of the service.

                (2) Establish general policy guidelines for the operation of the service to provide legal counsel and representation for the mentally disabled of this state in order to ensure that their legal rights are protected. However, the board shall not have supervisory power over the conduct of particular cases.

                (3) Review and evaluate the operations of the service and emphasize special training for attorneys hired by the service.

                (4) Review and approve an annual budget for the service.

                (5) Review and approve an annual report on the operation of the service and submit such report to the legislature, the governor and the chief justice of the supreme court, and

                (6) Approve and authorize contractual arrangements sought by the director.

         C. The director shall be an attorney at law licensed to practice in the state. The director shall be qualified by experience to perform the duties of his office. The director shall devote full time to the duties of his office and shall not engage in

the private practice of law.

                The director shall:

                (1) Organize and administer programs to provide legal counsel and representation for the mentally disabled of this state in order to ensure that their rights are protected, subject to the approval of the board of trustees.

                (2) Identify the needs of mentally disabled persons for legal counsel and representation within the state and the resources necessary to meet those needs, subject to the approval of the board of trustees.

                (3) Institute or cause to be instituted such legal proceedings as may be necessary to enforce and give effect to any of the duties or powers of the service.

                (4) Hire and train attorneys and other professional and nonprofessional staff that may be necessary to carry out the functions of the service. All attorneys employed shall be licensed to pratice law in Louisiana.

                (5) Establish official rules and regulations for the conduct of work of the service, subject to the approval of the board of trustees.

                (6) Take such actions as he deems necessary and appropriate to secure private, federal, and other public funds to help support the service, subject to the approval of the board of trustees, and

                (7) The director may contract with organizations or individuals for the provision of legal services for the mentally disabled, subject to the approval of the board of trustees.

         D. Any attorney representing a mentally ill person or a respondent as defined herein shall have ready access to view and copy all mental health and developmental disability records pertaining to his client, unless the client objects. If the patient or respondent later retains a private attorney to represent him, the mental health advocacy service shall destroy all copies of records pertaining to his case.

         Any attorney representing a mentally ill person or a respondent as defined herein shall have the opportunity to consult with his client whenever necessary in the performance of his duties. A treatment facility shall provide adequate space and privacy for the purpose of attorney-client consultation.

         E. Nothing in this Title shall be construed to prohibit a mentally disabled person or respondent to be represented by privately retained counsel. If a service attorney has been appointed by the court and the mentally disabled person or respondent secures his own counsel, the court shall discharge the service attorney.

         F. Any respondent or mentally disabled person shall have the right to demand that the records in the possession of his attorney regarding his mental condition be destroyed or returned to the treatment facility, and he shall have the right to assurance by the director that such records have been so destroyed by the mental health advocacy service attorney.

         G. The mental health advocacy service shall establish official rules and regulations for evaluating a client’s financial resources, for the purpose of determining whether a client has the ability to pay for services received.

              A client found to have sufficient financial resources shall be required to pay the service in accordance with standards established by the director. An indigent client shall be provided legal counsel and representation without charge.

§ 65. Medication or treatment

         A. Emergency situations.

                (1) A physician may order the necessary medication or treatment without the patient’s consent required in R.S. 28:52(H), 53(K), or 55(1), when the physician reasonably believes that the condition of a patient who refuses medication or treatment is of such critical nature that the patient presents an imminent danger of physical harm to himself or others.

                (2) A physician may order the emergency administering of medication or treatment after personally examining the patient or the physician may give the order by telephone if he is not immediately available to examine the patient and the patient presents an imminent threat to life. If the order is given by telephone, the physician must personally examine the patient within twelve hours after the telephone order has been given. All telephone orders for medication must be recorded on the patient’s chart.

                (3) The emergency administering of medication or treatment may be continued until the emergency subsides, but in no case shall it exceed seventy-two hours unless written notice of an administrative review has been given pursuant to R.S. 28:66(A).

                (4) In all emergency cases requiring medicine or treatment, the director shall be notified as soon as practicable and shall review the continued necessity for these measures.

                (5) The decision to administer emergency medication or treatment pursuant to this Subsection is subject to judicial review as to reasonableness pursuant to R.S. 28:66(G).

         B. Nonemergency situations.

                (1) When a patient who is being held involuntarily does not consent to medication or treatment and the physician believes such measures are necessary, but it is not an emergency as provided in Subsection A hereof, the director shall conduct an administrative review pursuant to R.S. 28:66 to determine whether the patient is competent to consent.

                (2) An administrative review need not be held if the director obtains the necessary consent from the patient’s curator has been expressly authorized in the interdiction order to consent to medication or treatment on behalf of an interdict.

§ 66. Administrative review

         A.    (1) The facility shall provide written notice to the patient, his representative, and an attorney from the Mental Health Advocacy Service (MHAS) no less than forty-eight hours, excluding weekends and holidays, before the administrative review. The notice shall include the time and place of the administrative review, the diagnosis, and reasons why the physician believes medication or treatment to be necessary. The patient may continue to refuse medication pending the outcome of the administrative review. The administrative review shall be held no later than seventy-two hours after the time that the MHAS attorney or other representative has been notified, excluding weekends and holidays, unless the patient and the facility agree to a continuance.

                (2) The MHAS attorney shall represent the patient at the administrative review unless the patient chooses someone else to represent him.

         B. A patient may be medicated without his consent if, based on the patient’s medical record and after personally examining the patient, the director determines all of the following:

                (1) The patient lacks the competence to make a decision about the medication or treatment. In deciding the issue of incompetency, the director shall consider the medical record and the testimony of at least one nontreating physician. The director shall also consider several factors, including but not limited to:

                        (a) The patient’s ability to understand the long-term medical risks commonly associated with medication or treatment.

                        (b) The patient’s ability to understand the short-term side effects commonly associated with the medication or treatment.

                        (c) The patient’s ability to understand the risks associated with the failure to take the medication or treatment.

                (2)  The patient is mentally ill or suffering from substance abuse and is dangerous to himself or others or gravely disabled without the medication or treatment.

                (3)  The medication or treatment is the least restrictive alternative.

                (4)  The medication or treatment is medically appropriate.

                (5)  The medication or treatment offers a significant likelihood of improvement in the patient’s condition or a speedier recovery.

                (6) The expected benefits from the medication outweigh the known risks and potential side effects.

         C.    (1) The director shall require the attendance of the patient at the hearing unless extraordinary circumstances exist precluding his attendance.

                (2) The patient and the hospital have the right to present evidence and crossexamine witnesses. The patient or his attorney shall have the right to call an independent expert as provided for in R.S. 28:54(D)(2).

         D.    (1) The director’s decision shall be in writing, shall address each of the criteria listed in Subsection B hereof, and shall give reasons for the decision. All of the criteria must be met in order to medicate a patient who does not consent.

                (2) The director’s decision to administer medication or treatment without the consent of the patient should specify the length of time the decision to medicate or treat the patient is to remain valid. The decision shall be effective for no more than sixty days or until termination of the patient’s stay at the treatment facililty, whichever occurs first. However, an administrative review to modify the director’s decision may be held before the expiration of that period if the patient’s condition or other circumstances have changed so that the findings of R.S. 28:66(B) are no longer met.

         E. The physician shall provide a written report to the director after the first fourteen days of medication or treatment. Thereafter, such reports must be made every fourteen days. If at any time the director believes that the medication or treatment is no longer necessary, he shall order such measures discontinued.

         F. The director shall provide the patient and his representative with a copy of the decision, as well as the reports required under Subsection E hereof.

         G. The patient may file a petition for review of the director’s decision in the court in the judicial district where the patient is confined. The hearing may be transferred to another district for good cause shown. The hearing shall be held within seven days of the time the petition is filed. The court review shall be de novo, and shall independently determine whether there is clear and convincing evidence to support the director’s findings and conclusions. The court shall take into consideration the right of the patient to rely on nonmedical treatment in accordance with the tenets and practices of a well recognized religious method of healing by a duly accredited practitioner thereof. While a patient is under such nonmedical treatment, he may not be ordered medically treated unless the court has determined that he is, as a result of a mental disorder, a danger to others or to himself. Further review may be taken pursuant to the procedures in R.S. 28:56(D) and (E).

         H. For purposes of this Section and R.S. 28:65, the director of a treatment facility must be a psychiatrist who is not involved in providing medication or treatment to the patient. If the director does not meet those criteria, he shall designate a psychiatrist who is not involved in the treatment or medication of the patient.

§ 171. Enumerations of rights guaranteed

         A. No patient in a treatment facility pursuant to this Chapter shall be deprived of any rights, benefits, or privileges guara