New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIII - Office of Mental Health
Part 540 - Patients Committed To The Custody Of The Commissioner Pursuant To Cpl Article 730
Section 540.6 - Placement or transfer of patients
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 540.6
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Orders remanding persons to the custody of the Commissioner.
(1) Designation of a secure facility. In
cases where a person is to be remanded to the commissioner pursuant to a final
order of observation, as defined in section
540.2(i)
of this Part, the commissioner may designate a secure facility to receive such
person in cases where the person has:
(i) open
felony charges or warrants or a pending parole revocation hearing; or
(ii) a history of arrests for violent crimes
or threats to commit violent crimes against persons or a history that includes
escape or attempted escape from a psychiatric facility, and, based upon a
review of available information, the commissioner believes such person would
likely meet the secure retention standards in paragraph (4) of this
subdivision.
(2)
Designated secure facility procedure. Within 72 hours of receiving a person
from a criminal court who appears to meet any of the criteria identified in
paragraph (1) of this subdivision, the designated secure facility will:
(i) evaluate the person to confirm that he or
she does meet such criteria; and
(ii) determine:
(a) if the person has a mental illness for
which care and treatment as a patient in a hospital is essential to such
person's welfare;
(b) if the
person's judgment is so impaired that he is unable to understand the need for
such care and treatment; and
(c)
if, as a result of mental illness, the person poses a risk of harm to self or
other; and
(iii) give
notice that this patient is now a civil patient and no further notice, pursuant
to section 730.60 (6) of the
Criminal Procedure Law and section 29.11 (h) of the Mental
Hygiene Law, shall be given of transfer to a non-secure facility or release,
unless such notice is in compliance with the provisions of section 33.13 of the Mental Hygiene Law. Such
notice shall be given to:
(a) the district
attorney of the county from which the patient was committed;
(b) the superintendent of State
Police;
(c) the sheriff of the
county where the facility is located;
(d) the police department having jurisdiction
of the area where the facility is located;
(e) any person who may reasonably be expected
to be the victim of any assault or any violent felony, as defined in the Penal
Law, which would be carried out by the committed person;
(f) the Mental Hygiene Legal Service or other
attorney representing the patient, if any; and
(g) any person or entity the court that
committed the patient to the custody of the commissioner may have designated in
the order issued under article 730 of the Criminal Procedure Law.
(3) Notice. Within 24
hours of confirming the need to admit the patient to the secure facility, the
director of such facility shall provide notice of the commissioner's
determination that the patient needs secure placement and of the patient's
right to object to placement at such secure facility to: the patient, the
nearest relative of the patient, if there be any known to him, and to the
Mental Hygiene Legal Service or other legal representative.
(4) Hospital forensic committee review.
Within 30 days of the patient's placement in a designated secure facility
pursuant to subparagraph (1)(ii) of this subdivision, the facility's hospital
forensic committee shall review the patient's placement in that facility to
confirm that there is a substantial risk that such patient may cause physical
harm to other persons, as manifested by homicidal or other violent behavior by
which others are placed in reasonable fear of serious harm and therefore the
patient needs the close supervision provided by a secure facility.
(5) Objection. If the patient has been placed
in a secure facility pursuant to subpapragraph (1)(ii) of this subdivision,
such patient, or anyone on his/her behalf may file a written objection to the
placement with the director of the facility after the 30-day review period has
elapsed and a decision to retain the patient at the secure facility has been
made. The patient or his/her representative may support the objection by filing
with the director, within 10 days, exclusive of Saturdays, Sundays and
holidays, of the 30-day or periodic review done pursuant to paragraph (4) or
(7) of this subdivision, appropriate written arguments supported by documents,
statements, and affidavits. The director shall send the notice of objection and
any material submitted by the patient or the person filing an objection on the
patient's behalf to the commissioner or his/her designee. The director may also
send to the commissioner or his/her designee written arguments supported by
documents, statements, and affidavits in support of his/her decision to admit
the patient to a secure facility, provided that a copy of such material be
provided to the patient and his/her representative(s).
(6) Determination.
(i) If no objection is received to the notice
of determination for placement in a secure facility, the director shall so
notify the commissioner or his/her designee.
(ii) If objection has been filed, the
commissioner or his/her designee shall designate a qualified psychiatrist or
licensed psychologist not on the staff of the secure facility to which the
patient has been admitted, who shall assist him/her in evaluating the secure
placement. The qualified psychiatrist or licensed psychologist shall personally
visit the hospital and shall interview the patient, the patient's physician,
the director, and others as he/she deems necessary and shall make a report and
recommendation to the commissioner or his/her designee.
(iii) A copy of such report shall be sent to
the persons served with notice of the determination for placement in a secure
facility. The commissioner or his/her designee shall give due consideration to
the arguments and supporting material presented by the respective parties as
well as the report of the designated qualified psychiatrist or licensed
psychologist, and shall decide the matter, upholding or reversing such secure
placement.
(iv) If the decision is
to confirm the need for placement in a secure facility, the determination shall
be upheld. The decision of the commissioner or his/her designee shall be
communicated to the director, the patient and the patient's
representative(s).
(7)
Review of patient's condition.
(i) A patient
placed in a designated secure facility from a criminal court pursuant to a
final order of observation shall be retained at such hospital only as long as
his/her condition requires placement at such hospital in accordance with the
criteria set forth in subparagraph (1)(ii) and subparagraphs (2)(i) and (ii) of
this subdivision, and if there is a substantial risk that such patient may
cause physical harm to other persons, as manifested by homicidal or other
violent behavior by which others are placed in reasonable fear of serious harm
and therefore the patient needs the close supervision provided by a secure
facility.
(ii) Unless the patient
has been discharged or transferred, the director of a designated secure
facility who has received a patient in accordance with this subdivision shall
comply with the provisions of article 9 of the Mental Hygiene Law and shall
apply, in accordance with such article, for the required periodic orders
authorizing retention of involuntary patients. In addition, such director shall
periodically review the need for retention in the designated secure facility of
each involuntary patient and shall file a report with the commissioner or
his/her designee for each such patient at intervals of not more than six months
setting forth reasons why the patient needs continued retention at such
facility. A copy of such report shall be served on the patient and the Mental
Hygiene Legal Service or the legal representative of the patient. The patient
or his/her legal representative may file an objection in accordance with
paragraph (5) of this subdivision.
(iii) Involuntary patients who no longer need
placement in the designated secure facility but who still require involuntary
care and treatment shall be transferred to another hospital in the Office of
Mental Health in accordance with subdivision (b) of this section.
(b) Transfers from a secure facility to a non-secure facility. Patients who are in the custody of the commissioner may be transferred from a secure facility to a nonsecure facility by order of the commissioner or his/her designee.
(c) Nothing in this section shall be construed to limit the right of any person to seek transfer or release pursuant to section 33.15 of the Mental Hygiene Law.
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