Mental Health Proceedings

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 Proceedings, Louisiana Children’s Code, Art. 1401-1471.

Art. 1401. Purpose

The purpose of this Title is to facilitate the proper treatment of children suffering from mental illness or substance abuse. The manner of treatment should be medically appropriate, least restrictive of the child’s liberty, and respectful of the child’s individual rights. A preference for outpatient treatment should prevail unless the admission to a treatment facility is determined necessary for the recovery of the child from the mental illness or substance abuse.

Art. 1402. Declaration of policy

The underlying policy of this Title is as follows:

(1) That mentally ill minors and minors suffering from substance abuse and their caretakers on their behalf 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 minor patient to the community as soon as possible, and is the least restrictive of the minor’s liberty.

(3) That continuity of care for the mentally ill and minors 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 minor receiving such services as is reasonably possible and medically appropriate.

(5) That individual rights of minor patients be safeguarded.

(6) That no minor solely as a result of mental illness or alcoholism or incapacitation by alcohol shall be confined in any jail, prison, correctional facility, or juvenile detention center.

(7) That no minor shall be denied treatment solely because he has withdrawn from treatment against medical advice on a prior occasion or because he has relapsed after an earlier treatment.

(8) That minors be protected from unnecessary institutionalization and be afforded proper treatment for their special mental health needs.

(9) That, in view of the liberty interest at issue in any commitment decision, proper respect for the parental decisionmaking role be balanced with the individual rights of the minor.

Art. 1403. General applicability

Except as otherwise specified in this Title, all provisions of the Children’s Code remain applicable.

Art. 1404. Definitions as used in this title:

(1) “Caretaker” means any person legally obligated to provide or secure adequate care for a child, including a parent, tutor, guardian, legal custodian, foster home patient, or other person providing a residence for the child.

(2) "Conditional discharge” means the physical release of a judicially committed minor from a treatment facility by the director or by the court.

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

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

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

(8) “Discharge” means the full or conditional release from a treatment facility of any minor admitted or otherwise detained under this Title.

(9) “Formal voluntary admission” means the admission of a minor suffering from mental illness or substance abuse desiring admission to a treatment facility for diagnosis or treatment of such conditions. or both, who may be formally admitted upon his written request.

(10) “Grave disability” 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 minor suffering from mental illness or substance abuse, desiring admission to a treatment facility for diagnosis or treatment of such condition, or both, who may be admitted upon his request without making formal application.

(12) “MHAS” means Mental Health Advocacy Service, as established by R.S. 28:64.

(13) “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 mental 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) Subcutaneous percutaneous liver biopsy.

(d) Bone marrow biopsy.

(e) Lumbar puncture.

(f) Myelogram.

(h) Abdominocentesis.

(i) Conization of the uterine cervix.

(j) Renal angiography.

(k) Femoral angiography.

(l) Carotid angiography.

(m) Vertebral angiography.

(14) “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.

(15) “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 include a person suffering solely from mental retardation, epilepsy, alcoholism, or drug abuse.

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

(17) “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.

(18) “Restraint” means the partial or total immobilization of any or all of the extremities or the torso by mechancial 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 support the patient, such as posies.

(19) "Seclusion" means the involuntary confinement of a patient alone in a room, which 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 time period pursuant to behavior-shaping techniques such as "time-out".

(20) “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.

(21) “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.

(22) “Treatment facility” means any public or private hospital, retreat, institution, mental health center, or facility licensed by the state of Louisiana in which any mentally ill minor or minor suffering from substance abuse is received or detained as a patient except a facility under the control or supervision of the Department of Public Safety and Corrections unless otherwise provided in Title VIII of this Code.

Art. 1405. Mental Health Advocacy Service (MHAS); representation; fees

A. MHAS shall provide legal counsel to all patients who request such service and who are admitted for treatment pursuant to this Title, including but not limited to voluntary or involuntary admission, commitment, legal competency, change of status, transfer, and discharge.

B. MHAS shall provide legal counsel, as availability is determined by its executive director, to minors admitted for mental health or substance abuse treatment pursuant to the dispositional alternatives as provided in the other Titles of this Code, including but not limited to Titles VI and VIII.

C. Nothing in this Title shall be construed to prohibit a mentally ill person or respondent from being represented by privately retained counsel. If a MHAS attorney has been appointed by the court and the mentally ill minor or respondent secures his own counsel, the court shall discharge the MHAS attorney.

D. MHAS 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 in accordance with standards established by the executive director. An indigent client shall be provided legal counsel and representation without charge.

E. MHAS shall be empowered with all of the same rights and responsibilities to represent their clients whether appointed through the provisions of this Code of Title 28 of the Louisiana Revised Statutes of 1950. These rights include but are not limited to:

(1) A request for a judicial hearing pursuant to Article 1411.

(2) An independent medical examination as requested and approved by the MHAS executive director.

Art. 1406. Selection of facilities; judicial commitments

A. Any treatment facility, except a forensic facility, shall be selected with consideration for the following:

(1) Medical suitability.

(2) Least restriction of the minor’s liberty.

(3) Nearness to the minor patient’s usual residence.

(4) Financial status of the minor patient.

B. Treatment facilities include but are not limited to the following:

(1) Community mental health centers.

(2) Private clinics.

(3) Public or private halfway houses.

(4) Public or private group homes.

(5) Residential facilities for children.

(6) Public or private general hospitals.

(7) Public or private mental hospitals.

(8) Detoxification centers.

(9) Substance abuse clinics.

(10) Substance abuse inpatient facilities.

(11) Forensic facilities.

C. Judicial commitments may be made to any facility, except forensic facilities, which is listed in Paragraph B of this Article.

Art. 1407. Facilities prohibited; emergency certificate for mental health treatment

A. Minor patients involuntarily hospitalized by emergency certificate for mental health treatment shall not be admitted to the following facilities:

(1) Private clinics.

(2) Public or private halfway houses.

(3) Public or private group homes.

(4) Substance abuse clinics.

(5) Forensic facilities.

(6) Residential facilities for children.

B. Minor patients in the custody of the Department of Public Safety and Corrections may be admitted to forensic facilities by emergency certificate provided that judical commitment proceedings are initiated during the period of treatment at the forensic facility authorized by emergency certificate.

Art. 1408. Facilities prohibited; emergency certificate for substance abuse treatment

A. Minor patients involuntarily hospitalized by emergency certificate for substance abuse treatment shall not be admitted to the following facilities:

(1) Private clinics.

(2) Public or private halfway houses.

(3) Public or private group homes.

(4) Forensic facilities.

(5) Residential facilities for children.

B. Judicial commitment or hospitalization by emergency certificate may be made to any facility listed in Article 1406(B), except forensic facilities, provided that such facility has a substance abuse inpatient operation maintained separate and apart from any mental health inpatient operation in such facility.

Chapter 3. Rights of Minor Patients

Art. 1409. Rights guaranteed

A. Each minor patient has a right to care provided in a dignified and humane manner, and to such privacy as is possible consistent with the minor's treatment plan.

B. The confinement of a minor to an institution shall not of itself cause him to lose any of the rights enjoyed by citizens of Louisiana and of the Untied States. No minor patient shall be deprived of these rights except when the determination is made by an appropriate court.

C. (1) The minor patient in a treatment facility shall be permitted unimpeded, private, and uncensored communication with persons of his choice by mail, telephone, and visitation. These rights may be restricted by the director of the treatment facility if sufficient cause exists and is so documented in the minor's medical records. The minor's legal counsel, as well as his next of kin or responsible party, must be notified in writing of any such restrictions and reasons therefor. When the cause for any restriction ceases to exist, the minor's full rights shall be reinstated. A minor shall have the right to communicate in any manner in private with his attorney at all times.

(2) The director of the treatment facility shall ensure that correspondence can be conveniently received and mailed, that telephones are reasonably accessible, and that space for visits is available. Writing materials, postage, and telephone usage funds shall be provided in reasonable amounts to minor patients who are unable to procure such items.

(3) Reasonable times and places for the use of telephones and for visits may be established in writing by the director of any treatment facility. However, the times and places established by the director must allow patients, at a minimum, reasonable daily communication by telephone and visitation. These rights may be restricted by the director of the treatment facility if sufficient cause exists and is so documented in the patient's medical records. The patient's legal counsel, as well as his next of kin or responsible party must be notified in writing of any such restrictions and the reasons therefor. When the cause for any restriction ceases to exist, the patient's full rights shall be reinstated.

(4) (a) The director of any substance abuse treatment facility may restrict the visitation rights of a minor who is voluntarily admitted to such treatment facility for substance abuse treatment under provisions of this Title for the initial phase of treatment but no longer than seven days unless good cause exists to extend the restriction and is so documented in the patient's record. This restriction shall not apply to visitation by the minor's attorney, or if he is not represented by counsel, the MHAS attorney or the minor's minister. This restriction shall also not apply to the parent or legal guardian of a minor unless the director determines that good cause exists that such restriction shall be in the best interests of the minor and is so documented in the minor's record. When the facility director determines the need to restrict visitation of new minor patients, he shall post notice of such restriction in places prominent to all new admissions, and shall inform each new patient of the restriction prior to his admission and the length and duration thereof, and further that such restriction may be extended on an individual basis as determined to be in the minor's interest by the treatment staff with the concurrence of the medical director.

(b) Nothing herein shall be construed to further restrict other forms of patient communication by and to minor patients as permitted in this Article nor shall this restriction apply to mental health treatment facilities.

D. Physical restraints or seclusion shall only be used to prevent a minor patient from physically injuring himself or others. Physical restraints or seclusion may not be used to punish or discipline a patient or used as a convenience to the staff of the treatment facility. Restraint and seclusion shall be used only in accordance with the following standards:

(1) Restraint or seclusion shall only be used when verbal intervention or less restrictive measures fail. Use of restraint or seclusion shall require documentation in the patient's record of the clinical justification for such use as well as the inadequacy of less restrictive intervention techniques.

(2) A written order from a physician or a psychologist acting within the scope of his institutional privileges shall be required for any use of restraint or seclusion. If, however, no physician or psychologist is immediately available, a registered nurse who has been trained in management of disturbed behavior may utilize restraint or seclusion. The nurse or the nursing supervisor shall then immediately notify a physician or a psychologist with institutional authority to order seclusion and provide him with sufficient information to determine whether restraints or seclusion are necessary and whether less restrictive interventions have been tried or considered. The physician or psychologist may then issue a telephone order for seclusion or restraint, if such order is indicated.

(3) Written orders for the use of restraint or seclusion shall be time limited and not more than twelve hours in duration. The written order shall include the date and time of the actual examination of the patient, the date and time that the patient was placed in restraint or seclusion, and the date and time that the order was signed.

(4) A renewal order for up to twelve hours of restraint or seclusion may be issued by a physician or a psychologist with institutional authority to order seclusion or restraint after determining that there is no less restrictive means of preventing injury to the patient or others. If any patient is held in restraint or seclusion for twenty-four hours, the physician or psychologist with institutional authority shall conduct an actual examination of the patient and document the reason why the use of seclusion or restraint beyond twenty-four hours is necessary, and the parent, tutor, or caretaker shall be notified by the twenty-sixth hour.

(5) Staff who implement written orders for restraints and seclusion shall have documented training in the proper use of the procedure for which the order was written.

(6) Periodic monitoring and care of the patient shall be provided by responsible staff. A patient in restraint or seclusion shall be evaluated every fifteen minutes, especially in regard to regular meals, water, and snacks, bathing, the need for motion and exercise, and use of the bathroom, and documentation of these evaluations shall be entered in the patient's record.

(7) Patients shall be released from restraint or seclusion as soon as the reasons justifying the use of restraints or seclusion subside. If at any time during the period of restraint or seclusion a registered nurse determines that the emergency which justified the seclusion or restraint has subsided and a physician or psychologist is not immediately available, the patient shall be released. At the end of the period of restraint or seclusion ordered by the physician or psychologist the patient shall be released unless a renewal order is issued.

(8) Mechanical restraints shall be designed and used so as not to cause physical injury to the patient and so as to cause the least possible discomfort.

(9) Facilities using seclusion or restraint shall have written policies concerning their use. These policies shall include standards and procedures for placing a patient in seclusion or restraint, and for informing him of the reason he was put in seclusion or restraint and the means of terminating such seclusion or restraint.

(10) Nothing in this Article shall be construed to expand the scope of practice of psychology as defined in R. S. 37:2351 et seq. to authorize the ordering, administering, or dispensing of medications, or to authorize any practice not permitted under the privileges granted by the institution.

(11) The department shall adopt rules and regulations in accordance with the Administrative Procedures Act to govern the use of seclusion and restraint. Such rules and regulations shall respect the minor patient's individual rights, protect the minor patient's health, safety, and welfare, and be the least restrictive of the minor patient's liberty. The department shall adopt rules and regulations to provide for enforcement procedures and penalties applicable to a person who violates the requirements of this Section.

E. A patient may be placed alone in a room or other area pursuant to behavior shaping techniques such as "time-out". Such placement may only be used as part of a written treatment plan, shall not be used for the convenience of staff, and may be used only according to the following standards and procedures:

(1) Placement alone in a room or other area shall be imposed only when less restrictive measures are inadequate.

(2) Placement alone in a room or other area shall only be ordered by a qualified professional trained in behavior-shaping techniques and authorized in accordance with written policies and procedures of the facility to order the use of behavior-shaping techniques.

(3) The period of placement alone in a room or other area shall not exceed thirty minutes.

(4) The patient shall be observed and supervised by a staff member.

(5) The period of placement alone in a room or other area shall not exceed a total of three hours in any twenty-four hour time period. If the placement alone in a room or other area exceeds a total of three hours in any twenty-four hour time period, it shall then be considered seclusion and shall be governed by the procedures and standards set forth in Paragraph D of this Article.

(6) The date, time, and duration of the placement shall be documented.

(7) In treatment facilities where patients are placed alone in a room or other area as a behavior-shaping technique, there shall be written policies and procedures governing use of such behavior-shaping technique.

F. No minor patient confined by emergency certificate, judicial commitment, court order, or noncontested status shall receive major surgical procedures or electroshock therapy without the written consent of a court of competent jurisdiction after a hearing. However, if the director of the treatment facility, in consultation with two physicians, determines that the condition of the minor is of such a critical nature that it may be life threatening unless major surgical procedures or electroshock therapy are administered, such emergency measures may be performed without the consent otherwise provided for in this Paragraph. No physician shall be liable for a good faith determination that a medical emergency exists.

G. Every minor patient shall have the right to wear his own clothes and keep and use his personal possessions, including toilet articles, unless determined by a physician that these are medically inappropriate and the reasons therefor are documented in his medical record. The minor shall also be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases, and to have access to individual storage spaces for his private use. If the minor is financially unable to provide these articles for himself, the treatment facility shall provide a reasonable supply of clothing and toiletries.

H. The following rules shall govern performance of work by minor patients:

(1) No minor shall be required to perform work of any kind that involves the operation and maintenance of an institution, nor shall privileges or release from an institution be conditioned upon performance of any work, except as follows:

(a) A minor patient may be required to perform vocational training tasks, provided each task is:

(i) Part of the minor’s individual treatment plan and has been approved as a program activity by a professional responsible for supervising the program.

(ii) Supervised by a qualified professional.

(iii) Not continued for longer than six months, unless it is specifically reinstated by the minor’s treatment plan.

(b) A minor patient may be required to perform without compensation such housekeeping tasks as would be performed by a minor in a natural home, foster home, or group home, provided that nothing in the minor’s individual treatment plan forbids such work. In no case, however, may a minor be required to perform housekeep ing tasks for more than twelve other people.

(2) A minor may voluntarily engage in work during nonprogram hours, provided that:

(a) The minor’s individual treatment plan does not forbid it.

(b) The particular work has been approved by the qualified professional

responsible for supervising the implementation of the minor treatment plan.

(d) The conditions of employment and the compensation are in full compliance with all applicable federal laws.

3) No minor patient shall be involved in the care, feeding, clothing, training, or supervision of other minors unless the qualified professional responsible for supervising the implementation of the treatment plan certifies in writing in the minor’s record that the particular task will not in any way endanger the life or health or be detrimental to the development of the particular children who receive such care or of the minor patient providing it.

I. Under appropriate supervision, each minor patient shall be provided with suitable opportunities for interaction with members of the opposite sex, except where a qualified professional responsible for the formulation of a particular minor’s treatment plan writes an order to the contrary and explains the reasons therefor.

J. Every minor patient shall have the right to be discharged from a treatment facility when his condition has changed or improved to the extent that confinement and treatment at the treatment facility are no longer required. The director of the treatment facility shall have the authority to discharge a patient admitted by judicial commitment pursuant to Chapter 9 of this Title without the approval of the court which committed him to the treatment facility. The court shall be advised of any such discharge. The director shall not be legally responsible to any person for the subsequent acts of behavior of a patient discharged by him in good faith.

K. Every minor patient shall have the right to engage a private attorney. If the minor is indigent, he shall be provided an attorney by the MHAS, if he so requests. The attorneys provided by the MHAS or appointed by a court shall be interested in and qualified by training or experience, or both, in the field of mental health statutes and jurisprudence.

L. Every minor patient shall have the right to request a court hearing pursuant to Article 1411. The purpose of the hearing shall be to determine whether or not he should be discharged from the treatment facility or transferred to a less restrictive and medically suitable treatment facility.

M. No provision hereof shall abridge or diminish the right of any minor patient to avail himself of the right of habeas corpus at any time.

N. Every minor patient shall have the right to be visited and examined at his own expense by a physician designated by him, a member of his family, or an interested party. The physician may consult and confer with the medical staff of the treatment facility and have the benefit of all information contained in the patient’s medical record.

O. Prefrontal 1obotomy shall be prohibited as a treatment solely for medical or emotional illness of a minor patient.

P. No medication shall be administered to a minor patient unless a written order of a physician prescribes it in writing. The physician is responsible for all medications which he has ordered and which are administered to a minor patient. The medication prescribed shall be noted in the minor patient’s records. At least monthly, the attending physician shall review the drug regimen of each minor patient under his care. All prescriptions shall be written with a termination date, which shall not exceed thirty days. The minor’s records shall state the effects of psychoactive medication on him. Unnecessary or excessive medication shall not be administered to any minor patient. Medication shall not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with the minor’s treatment program. No medication shall be administered except by persons who have been appropriately trained.

Q. A minor patient admitted to a treatment facility has the right to an individualized treatment plan and periodic review to determine his progress. The appropriate staff of the facility shall review the minor’s progress at least at intervals of thirty, ninety, one hundred eighty days, and every one hundred eighty days thereafter. The staff shall enter into the minor’s medical record his response to medical treatment, his current mental status, and specific reasons why continued treatment is necessary in the current setting or whether a treatment facility is available which is medically suitable and less restrictive of the minor patient’s liberty.

R. A minor patient admitted to a treatment facility has the right to have available such treatment as is medically appropriate to his condition. Should the treatment facility be unable to provide an active and appropriate medical treatment program, the minor shall be discharged.

S. Each minor patient shall have the right to receive prompt and adequate medical treatment for any physical ailments and for the prevention of any illness or disability. Such medical treatment shall meet the standards of medical practice in the community.

T. The institution shall prohibit the mistreatment, neglect, or abuse of any minor child in any way.

Art. 1410. Violation of rights; reports; reports of abuse or neglect

A. Alleged violations of the rights established by Article 1409 shall be reported immediately to the superintendent and there shall be a written record that:

(1) Each alleged violation has been thoroughly investigated and findings stated.

(2) The results of such investigation were reported to the superintendent within twenty-four hours of the report of the incident.

B. Abuse or neglect of any child shall be reported to a child protection agency in accordance with Chapter 5 of Title VI.

Art. 1411. Right to hearing

A minor or his attorney shall have the right to demand a hearing to determine whether the minor should receive treatment on an inpatient basis, be discharged from the treatment facility, or placed in a less restrictive setting.

Art. 1412. Petition; venue

A. The petition shall be filed in the court of the jurisdiction in which the patient is confined or, if the minor is currently under a disposition by a juvenile court, the hearing shall be held in that juvenile court.

B. The hearing shall be held in that court and no other except for good cause shown.

C. The judge of the court where the petition was filed may hold the hearing at the treatment facility where the minor 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.

Art. 1413. Time for hearing

The hearing shall be held within ten days of the filing of the petition.

Art. 1414. Order of hearing

A. Witnesses and evidence tending to show that the child needs to be in a treatment facility shall be presented first.

B. Counsel for the child shall have the opportunity to present evidence and to cross-examine witnesses.

Art. 1415. Burden of proof; order

If the court finds by clear and convincing evidence that the minor has a mental illness or suffers from substance abuse of such severity that hospitalization is necessary and that he can benefit from inpatient treatment, it shall order his continued confinement in a designated treatment facility which is medically suitable and least restrictive of his liberty.

Art. 1416. Facility records; confidentiality; disclosure; destruction

A. Complete records for each minor shall be maintained and all information contained in a minor patient’s records shall be considered privileged and confidential and shall not be disclosed except as provided herein.

B. A minor patient’s record shall be readily available to both the qualified professionals and the residential care workers who are directly involved with the minor.

C. The parent or tutor of the minor shall be permitted access to his records. These records shall include:

(1) Identification data, including the minor’s legal status.

(2) The minor’s history, including but not limited to:

(a) Family data, educational background, and employment record.

(b) Prior medical history, both physical and mental, including prior institutionalization.

(3) The minor patient’s grievances if any.

(4) An inventory of the minor’s life skills.

(5) A record of each physical examination describing the results of the examination.

(6) A copy of the minor’s individual plan and any modifications thereto and an appropriate Summary to guide and assist resident care workers in implementing the minor’s program.

(7) The findings made in periodic reviews of the plan, including an analysis of the successes and failures of the minor patient’s program and recommendations for any modifications deemed necessary.

(8) A copy of the post-institutionalization plan and any modification there-

to, and a summary of the steps that have been taken to implement that plan.

(9) History and present status with respect to medication.

(10) A summary of each significant contact with the minor by a qualified professional.

(11) A summary of the minor patient’s response to his program, prepared by a qualified professional involved in his treatment and recorded at least monthly. Such response wherever possible, shall be scientifically documented.

(12) A signed order by a qualified professional for any physical restraints or seclusion, and documentation of the clinical justification for the use of restraints, seclusion, and placement as required by Articles 1409(D) and (E).

(13) A description of any extraordinary incident or accident in the institution involving the minor, to be entered by a staff member noting personal knowledge of the incident or accident or other source of information, including any reports of investigations of mistreatment of the child, as required by Article 1410.

(14) A summary of family visits and contacts.

(15) A summary of attendance and leaves from the institution.

(16) A record of any seizures, illnesses, treatments thereof, and immunizations.

D. Any attorney representing a mentally ill minor 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. The attorney shall return all copies of his client’s medical record to the treatment facility upon completion of their use. If the patient or respondent later retains a private attorney to represent him, the MHAS shall destroy all copies of records pertaining to his case.

E. Any respondent or mentally disabled minor 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 MHAS attorney.

Art. 1417. Court records

A. Each court shall keep a record of the cases relating to mentally ill minors 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 Chapter, or a microfilm duplicate of such records.

B. All records maintained in the courts under the provisions of this Article shall be sealed and available only to the respondent or his attorney unless the court, after a hearing held with notice to the respondent, determines such, records should be disclosed to a petitioner for cause shown.

Art. 1418. Physician’s standard of care

Any licensed physician who acts pursuant to the provisions of this Title, including execution of 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.

Art. 1419. Immunity

A. Any licensed physician 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 medical opinions, judgments, actions, or duties pursuant to any of the provisions of this Title.

B. Any person who acts in good faith to assist in the apprehension or taking into protective custody and examination of a minor 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.

C. 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 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.

Art. 1420. Admission by emergency certificate; extension

A. A mentally ill minor or a minor 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.

B. A minor 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 minor within seventy-two hours prior to the termination of the initial fifteen-day period and certified in writing on the second certificate that the minor 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 minor patient of the execution of the second certificate, the length of the extended period, and the specific reasons therefor, and shall also give notice of the same to the minor’s nearest relative or other designated responsible party initially notified pursuant to Article 1428.

Art. 1421. Examination required

Any physician may execute an emergency certificate only after an actual examination of a minor alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate medical treatment in a treatment facility because the examining physician determines him to be dangerous to himself 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.

Art. 1422. Certificate; contents

A. The emergency certificate shall state all of the following:

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

(2) The objective findings of the physician relative to the physical and mental condition of the minor, leading to the conclusion that he is dangerous to him-

self or others or is gravely disabled as a result of substance abuse or mental illness.

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

(4) The determination of whether the minor examined is in need of immedi-

ate psychiatric treatment in a treatment facility because he is either:

(a) Dangerous to himself.

(b) Dangerous to others.

(5) A statement that the minor is unwilling or unable to seek voluntary admission.

B. 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.

Art. 1423. Coroner; notice; independent examination; discharge

A. Upon admission of any minor by emergency certificate to a treatment facility, it shall be the duty of the director of the treatment facility immediately to notify the coroner of the parish in which the treatment facility is located of the admission, giving the following information if known:

(1) The minor’s name, address, date of birth.

(2) Name of certifying physician.

(3) Date and time of admission.

(4) The name and address of the treatment facility.

B. Within seventy-two hours of admission, the minor patient shall be independently examined by the coroner or his deputy who shall execute an emergency certificate pursuant to Article 1422, which shall be a necessary precondition to the person’s continued confinement.

C. 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 Article by any physician at the treatment facility where the minor patient is confined.

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

Art. 1424. Coroner; fees; records

A. in making either the initial examination or the second examination, when the coroner or his deputy examines the patient and executes an emergency certificate and a reexamination of the minor 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 a fee for the service, unless they are one and the same.

B. When a minor patient is confined in a treatment facility other than a state mental institution, the examining coroner in the parish where the minor 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.

C. When a minor patient 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.

D. 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 minor patient is domiciled or residing from parish funds designated for the purpose of payment to the coroner.

E. All coroners shall keep accurate records showing the number of patients confined in their parishes pursuant to this Article.

Art. 1425. Request for MHAS representation

Upon admission by emergency certificate, a patient may request the director of the treatment facility to advise the executive director of MHAS of his admission and may request representation.

Art. 1426. Right to hearing

A. Prior to or during confinement under the provisions of this Title, any minor 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.

B. The hearing shall be held within five days of the filing of the petition.

C. Pending the decision of the court, the minor patient shall remain confined unless the court orders release or a less restrictive status.

Art. 1427. Authority to transport and detain

A. 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 minor patient for diagnosis and treatment for a period not to exceed fifteen days, and to return him to the facility if he is absent with or without permission during authorized periods of detention.

B. If necessary, peace officers shall apprehend and transport, or ambulance services, under appropriate circumstances, may locate and transport a minor 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, the minor’s next of kin or tutor, or the agency legally responsible for his welfare.

Art. 1428. Notice of admission

The director of the treatment facility shall notify the minor patient’s nearest relative, if known, or designated responsible party, if any, in writing of the minor’s admission by emergency certificate as soon as reasonably possible.

Art. 1429. Application for judicial commitment

A. If the minor patient admitted to a treatment facility pursuant to this Chapter is a proper candidate for judicial commitment pursuant to Chapter 9 of this Title, the director of the treatment facility, or any interested party, may apply for such commitment under provisions of Chapter 9 of this Title.

B. Such a minor patient, hospitalized on an emergency certificate, for whom a patient for judicial commitment has been filed in court may continue to be detained for a further period on order of the court.

Art. 1430. Advice of rights

A. Every minor 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 MHAS, the rights enumerated in Chapter 3 of this Title, and the rules and regulations applicable to or concerning his conduct while a patient is in the treatment facility.

B. If the minor is illiterate or does not read or understand English, appropriate provisions should be made to supply him this information.

C. In addition, a copy of the information mentioned in this Article must be posted in any area where patients are confined and treated.

Art. 1431. Coroner’s examination; emergency certificate

A. Upon the request of a credible adult 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 minor alleged to be mentally ill or suffering from substance abuse and in need of immediate medical treatment because he is dangerous to self or others or gravely disabled. If the coroner is not a physician he may deputize a physician to perform this examination.

B. Failure to render an actual examination prior to execution of the emergency certificate shall be evidence of gross negligence.

C. To accomplish the examination authorized by this Article, 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 Chapter 8 of this Title.

D. If the examining physician determines that the provisions of this Article are met, he shall execute an emergency certificate and shall transport or cause to be transported the minor named in the emergency certificate to a treatment facility.

Art. 1432. Order for custody; grounds

A. Any parish coroner or judge of a court of competent jurisdiction may order a minor 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 minor is mentally ill or suffering from substance abuse and is in need of immediate treatment to protect the minor patient 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 minor 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 minor sought has been encouraged to seek treatment and is unwilling to be evaluated on a voluntary basis.

(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 minor sought to be treated.

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

(1) The date and hour of issuance and the municipality or parish where issued. (2) The name of the minor to be taken into custody or, if his name is not known, a designation of the minor 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 minor is mentally ill or suffering from substance abuse and is in need of immediate hospitalization to protect the person or others from physical harm.

(4) That the minor 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 minor. The date and hour that the minor 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 minor shall be delivered to a treatment facility or the office of the coroner or he shall be released. Upon arrival, the minor 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 minor shall be voluntarily admitted, admitted by emergency certificate, admitted as a noncontested admission, or discharged. The minor in custody shall be examined within eight hours of his arrival at the treatment facility or coroner’s office or he shall be released.

Art. 1433. Protective custody without court order

A. A peace officer or a peace officer accompanied by an emergency medical service trained technician may take a minor into protective custody and transport him to a treatment facility for a medical evaluation when, as a result of his personal observation, the peace officer or emergency medical service technician has reasonable grounds to believe the minor is a proper subject for involuntary admission to a treatment facility because he is acting in a manner dangerous to himself or dangerous to others, is gravely disabled, and is in need of immediate hospitalization to protect the minor or others from physical harm.

B. The minor may only be transported to one of the following:

(1) A community mental health center.

(2) A public or private general hospital.

(3) A public or private mental hospital.

(4) A detoxification center.

(5) A substance abuse clinic.

(6) A substance abuse inpatient facility.

C. Upon arrival at the treatment facility, the escorting peace officer shall then be relieved of any further responsibility and the minor shall be immediately examined by a physician, preferably a psychiatrist, who shall determine if the minor shall be voluntarily admitted, admitted by emergency certificate, or discharged.

D. In the case of a minor suffering from substance abuse and where any of the facilities stated in Paragraph B of this Article are unavailable, the peace officer and emergency medical service technician may use whatever means or facilities available to protect the health and safety of the minor suffering from substance abuse until such time as any of the above facilities become available. In taking a minor into protective custody, the peace office and emergency medical service technician may take reasonable steps to protect themselves. A peace officer or emergency medical service technician who acts in compliance with this Article is acting in the course of his official duty and cannot be subjected to criminal or civil liability as a result thereof.

E. Under the provisions of this Article no minor shall be placed in protective custody for a period in excess of seventy-two hours. Any minor placed in protective custody under the provisions of this Article shall be considered as an inmate for maintenance purposes only.

Art. 1434. Judicial commitment; petition

A. Any adult may file with the court a petition which asserts his belief that a minor 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 the minor to be a danger to himself or others or to be gravely disabled, and may thereby request a hearing.

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

C. A petitioner who is unable to afford an attorney may seek the assistance of any legal aid society or similar agency if available.

Art. 1435. Filing; venue

A. The petition may be filed in the judicial district in which the minor respondent is confined or, if not confined, in the judicial district where he resides or may be found.

B. Before the hearing, the minor 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 minor 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 his 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 the minor’s health, welfare, or dignity to travel to the court where the petition was filed.

Art. 1436. Hearing; notice

A. 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 minor, his attorney, and the petitioner.

B. The notice shall inform the minor 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 MHAS, and that he has the right to cross examine witnesses testifying at any hearing on such application.

Art. 1437. Probable cause; order for examination

A. 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 minor 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.

B. If the court determines that probable cause exists, the court may appoint the minor respondent’s treating physician if available or, if none, then another physician, preferably a psychiatrist, to examine the minor 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.

Art. 1438. Report of examination

A. Any report ordered pursuant to Article 1437 shall set forth specifically the objective factors leading to the conclusion that the minor 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 minor 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.

B. The following criteria should be considered by the physician:

(1) The minor 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.

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

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

Art. 1439. Independent examination

A. The minor respondent or his attorney shall have the right to seek an additional independent medical opinion, when necessary, in their discretion.

B. If the respondent is indigent, this opinion may be paid for by the MHAS, upon the approval of its executive director.

C. Reasonable compensation of the appointed examining physicians and all court costs shall be established by the court and ordered paid by the minor respondent or the petitioner in the discretion of the court. If it is determined by the court that the costs shall not be borne by the minor 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.

Art. 1440. Order for custody and detention

A. If the minor respondent refuses to be examined by the court appointed physician as herein provided or if the judge, after reviewing the petition and an affidavit filed pursuant to Article 1432, the report of the treating physician, or the court-appointed physician, finds that the minor is mentally ill or suffering from substance abuse and is in need of immediate hospitalization to protect himself or others from physical harm, or that the minor respondent’s condition may be markedly worsened by delay, then the court may issue a court order for custody of the minor and a peace officer shall deliver him to a treatment facility designated by the court.

B. The court shall also issue an order to the treatment facility authorizing detention of the minor until the commitment hearing is completed, unless he is discharged by the director.

Art. 1441. Placement pending hearing

A. Unless the minor 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.

B. An examining physician may execute an emergency certificate pursuant to Article 1422 if he deems that action appropriate. In such a case, the respondent shall be admitted pursuant to Article 1420 pending the hearing on the petition.

Art. 1442. Right to counsel

A. The court shall provide the minor respondent a reasonable opportunity to select his own counsel. In the event he does not select counsel and is unable to pay for counsel or in the event counsel selected by him refuses to represent said minor or is not available for such representation, then the court shall appoint counsel for him provided by the MHAS.

B. Reasonable compensation of appointed counsel shall be established by the court and may be ordered paid by the minor 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 minor respondent shall have the right to privately retained and paid counsel at any time. However, all minor respondents must be represented by counsel as early as possible in every proceeding. If attorneys are available through the MHAS, the court shall contact the MHAS and request the assignment of an attorney who will be appointed.

D. In cases where the service is unable to provide representation, the court shall select and appoint an attorney to represent the minor respondent, whose fee shall be set by the court.

E. An attorney appointed by a court to represent a minor respondent pursuant to this Chapter has a continuing duty toward that minor 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.

Art. 1443. Hearing; priority

On the day appointed, the hearing shall take precedence over all other matters, except pending cases of the same type.

Art. 1444. Nature of hearing; evidence

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.

Art. 1445. Order of hearing

A. Witnesses and evidence tending to show that the minor who is the subject of the petition is a proper subject-for judicial commitment shall be presented first.

B. The minor respondent or his counsel shall have the right to present evidence and cross-examine witnesses who may testify at the hearing.

C. If the minor respondent or his attorney notified 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.

D. If the minor respondent is present at the hearing and is medi