June 21, 2023
Raymond P. Dudlo
Member, Stoll Keenon Ogden PLLC
Are Indiana hospitals ready for the new commitment laws beginning July 1?
A new Indiana law going into effect on July 1, 2023 makes numerous changes to the procedure for emergency detentions and the commitments that can follow. As a result, hospitals and facilities involved in the emergency detention and commitment of individuals must now navigate new deadlines and other changes while considering revisions to their internal policies and procedures.
Narcotic Addiction, Alcoholism, and now Temporary Impairment. Legally defining what qualifies as a “Mental Illness” can be complex. Notably, the new law defines “Mental Illness” to include “alcoholism” and “addiction to narcotics or dangerous drugs” as well as “temporary impairment as a result of alcohol or drug use[,]” Thus, substance abuse, if it causes sufficient impairment, can form the basis of a commitment. This change effectively, and potentially substantially, expands the pool of individuals who are eligible for Emergency Detention.
Emergency Detentions are Revised while Immediate Detentions are Removed. Previously, law enforcement officers were authorized to apprehend, transport and charge an individual with a mental illness under Ind. Code § 12-26-4, a process known as an Immediate Detention. That process is reconfigured in the new law and named an “Emergency Detention.” As a result, Immediate Detentions will no longer exist as of July 1, 2023. Emergency Detentions can be initiated by law enforcement or by a hospital. The new law envisions law enforcement officers initiating this process, but facilities may also initiate an Emergency Detention should a patient’s condition qualify for detention.
Similar to Immediate Detentions, Emergency Detentions allow for the apprehension, transportation and potential charging of an individual with mental illness. If a law enforcement officer has reasonable grounds to believe that an individual has (1) a mental illness, (2) is either dangerous or gravely disabled, and (3) the individual is in immediate need of hospitalization and treatment, then the officer may apprehend and transport the individual to the nearest appropriate facility. The officer may also charge the individual with an offense. Upon transporting an individual to the hospital, the officer must submit a written statement to the facility which informs the facility of the basis for the officer’s conclusion that an Emergency Detention is necessary. That report must be included in the individual’s medical record.
Detention Applications are In, and the Reports Following are Out. A new form, the Application for Emergency Detention of Mentally Ill and Dangerous and/or Gravely Disabled Person, will be created by the Office of Judicial Administration and is required to be filed with the local court. Hospitals are familiar with submitting a form following an emergency detention, aptly titled the Report Following Emergency Detention, which is required within 72 hours to initiate the process to continue the detention of a patient pending a commitment hearing. That process will no longer exist as of July 1.
The new law creates a new procedure and timeline for detaining patients when they are deemed “dangerous”. Importantly, hospitals can no longer wait until 72 hours have passed from admission to determine whether they will seek to continue to hold the patient and petition for commitment. Instead, facilities must now file the Detention Application 48 hours from admission. The filing of the Detention Application provides an additional 24 hours to hold the patient, totaling a 72 hour hold from admission. Note, however, that if a court denies the Detention Application prior to the 72 hour expiration, the patient must be discharged.
Physicians Still Sign, but Others can Examine. Detention Applications must be signed by a physician, but their attestation can rely upon the examination of a patient by an Advanced Practice Registered Nurse or a Physician’s Assistant. The new law recognizes that mental health treatment includes APRN and PA professionals as they are now listed alongside the facility superintendent and physicians. Regardless, a physician is the only medical professional who can sign a Detention Application, and they must attest that the patient was examined and probable cause exists that the patient (1) suffers from a mental illness, (2) is either dangerous or gravely disabled, and (3) requires continued involuntary detention to receive treatment.
Procedural Timelines Have Changed and Midnight Provides Some Relief. The former process looked something like this: Obtain an emergency detention order, then 72 hours to File the Report Following, then 24 hours for the Court to issue an Order Continuing Detention, which either sets the matter for a Probable Cause hearing within two days and a Final Hearing within ten days, or just orders that the parties proceed with a Final Hearing within the two-day probable cause hearing window. This process could be confusing at times. The revised law aims to make it cleaner, setting out the following process: File a Detention Application within 48 hours of admission, then, if a court approves the Detention Application, it must hold a hearing on a commitment petition within 14 days of the day of admission. By statute, courts will now consider the sufficiency of probable cause without a hearing.
If a court finds that there is probable cause to continue the emergency detention, that individual shall continue to be held in an appropriate facility pending a final hearing which determines whether commitment of the individual is appropriate. In the end, the rush to file and obtain an Order continuing the detention still exists, but once that order is in place it is a less frantic process to the Final Hearing.
Weekends and holidays continue not to count for deadlines of less than 14 days. The 48 and 72 hour hold periods do not include Saturdays, Sundays, and legal holidays.
While the new law falls short of defining “date of admission”, it is helpful in defining when that 48 hour clock begins to tick. If a patient is admitted to a facility between midnight and 8 a.m., then the time begins to run at 8:00 a.m. This will provide facilities a little bit of breathing room for those early morning admissions. However, the deadline is clear. A patient admitted at 11:50 p.m. starts the 48 hour clock then. If that same patient arrives a mere ten minutes later, then the facility effectively has 56 hours to file the Detention Application.
In summary, numerous, substantive changes to emergency detentions and commitments go into effect on July 1, 2023. Hospitals must be ready to implement and navigate these new deadlines and procedures. As these laws have not been amended for several years, facilities are likely to have long-standing policies and procedures that will become outdated when the clock strikes midnight and July 1, 2023 begins.