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2017 Regular Session
HOUSE BILL NO. 395
BY REPRESENTATIVE DUSTIN MILLER
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
MENTAL HEALTH: Amends the procedures for involuntary mental health treatment
1 AN ACT
2To amend and reenact R.S. 28:54(A) and (C), 55(A) through (D) and (E)(1) and (5), 56(C)
3 and (G)(4), 59(A) through (C), 454.6(A)(introductory paragraph), (5), and (6) and
4 (B) and to enact R.S. 28:454.6(A)(7), relative to involuntary mental health treatment;
5 to make technical corrections; to provide for judicial commitment hearings; to
6 provide for commitment of prisoners; to establish an effective date; and to provide
7 for related matters.
8Be it enacted by the Legislature of Louisiana:
9 Section 1. R.S. 28:54(A) and (C), 55(A) through (D) and (E)(1) and (5), 56(C) and
10(G)(4), 59(A) through (C), 454.6(A)(introductory paragraph), (5), and (6) and (B) are hereby
11amended and reenacted and R.S. 28:454.6(A)(7) is hereby enacted to read as follows:
12 §54. Judicial commitment; procedure
13 A. Any The department or any person of legal age may file with the court
14 a petition which asserts his belief that a person is suffering from mental illness which
15 contributes or causes that person to be a danger to himself or others or to be gravely
16 disabled, or is suffering from substance abuse which contributes or causes that
17 person to be a danger to himself or others or to be gravely disabled and may thereby
18 request a hearing. The petition may be filed in the judicial district in which the
19 respondent is confined, or if not confined, in the judicial district where he resides or
20 may be found. The hearing shall not be transferred to another district except for
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1 good cause shown. A petitioner who is unable to afford an attorney may seek the
2 assistance of any legal aid society or similar agency if available.
3 * * *
4 C.(1) Upon the filing of the petition, the court shall assign a time, not later
5 than eighteen calendar days thereafter, shall assign and a place for a hearing upon the
6 petition, and shall cause reasonable notice thereof to be given delivered at least ten
7 days prior to the hearing to the respondent, respondent's attorney, and the petitioner,
8 and the Louisiana Department of Health, bureau of legal services.
9 (2) The notice shall inform such the respondent of all of the following:
10 (a) that That he has a right to be present at the hearing;.
11 (b) that That he has a right to counsel;.
12 (c) that That he, if indigent or otherwise qualified, has the right to have
13 counsel appointed to represent him by the Mental Health Advocacy Service, and.
14 (d) that That he has the right to cross examine cross-examine witnesses
15 testifying at any hearing on such the application.
16 * * *
17 §55. Judicial hearings
18 A. At the appointed time, the court shall conduct a hearing on the petition
19 for judicial commitment. Before the hearing, the respondent may move for a change
20 of venue to the parish of his domicile, which motion shall be granted only for
21 compelling reasons. If the respondent is confined to a hospital, the judge of the court
22 where the petition was filed may hold the hearing on such commitment at the
23 treatment facility where the person is confined, if in the opinion of at least one of the
24 physicians appointed by the court to examine him, it will be detrimental to his health,
25 welfare, or dignity to travel to the court where the petition was filed.
26 B. The court shall provide the respondent a reasonable opportunity to select
27 his own counsel. In the event the respondent does not select counsel and is unable
28 to pay for counsel, or in the event counsel selected by the respondent refuses to
29 represent said the respondent or is not available for such representation, then the
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1 court shall appoint counsel for the respondent provided by the mental health
2 advocacy service. Reasonable compensation of appointed counsel shall be
3 established by the court and may be ordered paid by the respondent or the petitioner
4 in the discretion of the court if either is found financially capable. If it is determined
5 by the court that the costs shall not be borne by the respondent or the petitioner, then
6 compensation to the attorney shall be paid from funds appropriated to the judiciary.
7 C.(1) The respondent shall have the right to privately retained retain and paid
8 pay counsel at any time. However, all respondents must be represented by counsel
9 as early as possible in every proceeding. If attorneys are available through the
10 mental health advocacy service, the court shall contact the office of the mental health
11 advocacy service and request the assignment of an attorney who will be appointed.
12 In cases where the mental health advocacy service is unable to provide
13 representation, the court shall select and appoint an attorney to represent the
14 respondent, whose fee shall be set by the court.
15 (2) An attorney appointed to represent a person by a court pursuant to this
16 Title has a continuing duty toward that person even after admission. That duty shall
17 include, but not be limited to, follow-up investigation of the circumstances of the
18 person and representation in subsequent proceedings relating to admission, status,
19 and discharge. The duty shall continue until it is terminated by the court making the
20 appointment.
21 D. On the day appointed, the hearing shall take precedence over all other
22 matters, except pending cases of the same type, and shall be a closed hearing. The
23 court shall conduct the hearing in as formal a manner as is possible under the
24 circumstances and shall admit evidence according to the usual rules of evidence.
25 Witnesses and evidence tending to show that the person who is the subject of the
26 petition is a proper subject for judicial commitment shall be presented first. The
27 respondent has a right to be present unless the court finds that he knowingly,
28 voluntarily, and intelligently waives his presence. The respondent or his counsel
29 shall have the right to present evidence and cross examine cross-examine witnesses
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1 who may testify at the hearing. If the department is not the petitioner, the
2 department or its counsel may present evidence, call witnesses, and cross-examine
3 any witness testifying at the hearing regarding the placement of the respondent. If
4 the respondent is present at the hearing and is medicated, the court shall be informed
5 of the medication and its common effects. If the respondent or his attorney notifies
6 the court not less than three days before the hearing that he wishes to cross examine
7 cross-examine the examining physicians, the court shall order such physicians to
8 appear in person or by deposition. The court shall cause a recording of the testimony
9 of the hearing to be made, which shall be transcribed only in the event of an appeal
10 from the judgment. A copy of such transcript shall be furnished without charge, to
11 any appellant whom the court finds unable to pay for the same. The cost of such the
12 transcript shall be paid from funds appropriated to the judicial department.
13 E.(1) If the court finds by clear and convincing evidence that the respondent
14 is dangerous to self or others or is gravely disabled, as a result of substance abuse or
15 mental illness, it shall render a judgment for his commitment. After considering all
16 relevant circumstances, including clinical recommendations and any preference of
17 the respondent or his family, the court shall determine whether the respondent should
18 be committed to a treatment facility which is medically suitable and least restrictive
19 of the respondent's liberty. However, if the placement determined by the court is
20 unavailable, the court shall may commit the respondent to the Louisiana Department
21 of Health for appropriate placement in a state treatment facility subject to availability
22 of department resources until such time as an opening is available for transfer to the
23 treatment center determined by the court, unless the respondent waives the
24 requirement for such transfer. Within fifteen days following an alternative
25 placement, the department shall submit a report to the court stating the reasons for
26 such placement and seeking court approval of the placement. If the department is
27 not the petitioner, the parties shall first consult with the department or its counsel
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1 before entering into a judgment stipulating to a commitment of the respondent to the
2 department.
3 * * *
4 (5) The court order shall order a suitable person to convey such person the
5 respondent to the treatment facility and deliver respondent, together with a copy of
6 the judgment and certificates, with the respondent, to the director. In appointing a
7 person to execute the order, the court should give preference to a near relative or
8 friend of the respondent.
9 * * *
10 §56. Judicial commitment; review; appeals
11 * * *
12 C. Notwithstanding an order of judicial commitment, the director of the
13 treatment facility to which the individual is committed is encouraged to explore
14 treatment measures that are medically appropriate and less restrictive. The director
15 may at any time convert an involuntary commitment may be converted to a voluntary
16 one should he deem that action medically appropriate. He in accordance with R.S.
17 28:52 or 52.2. The director or administrator of the treatment facility shall inform the
18 court of any action in that regard. The director may discharge any patient if in his
19 opinion, or upon recommendation of the treating physician, discharge is appropriate.
20 The director shall not be legally responsible to any person for the subsequent acts or
21 behavior of a patient discharged in good faith.
22 * * *
23 G.
24 * * *
25 (4) An extension of a conditional discharge may be granted upon application
26 by the department or by the director of the treatment facility to the court and
27 notification to respondent's counsel of record. The court may grant the extension of
28 the conditional discharge for a period of up to one hundred twenty days. No further
29 extension may be made without a contradictory hearing. The burden of proof is on
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1 the department or the director of the treatment facility to show why continued
2 treatment continuation of the conditional discharge is necessary.
3 * * *
4 §59. Commitment of prisoners
5 A. Any person acquitted of a crime or misdemeanor found not guilty by
6 reason of insanity or mental defect by a criminal court may be committed ordered
7 to the proper institution in accordance with Code of Criminal Procedure Arts. 654
8 et seq.
9 B. Any person who is determined to lack the capacity to proceed, who will
10 not attain the capacity to proceed with his trial in the foreseeable future, and who is
11 not a danger to himself or others, shall be discharged in accordance with Code of
12 Criminal Procedure Arts. 648 et seq. However, this release is without prejudice to
13 any right the state may have to institute civil commitment proceedings pursuant to
14 R.S. 28:53 or R.S. 28:54. Furthermore, this person may be held in a treatment
15 facility for a reasonable time period pending the judicial commitment hearing. If
16 judicial commitment proceedings are necessary, they shall be instituted within
17 seventy-two hours pursuant to Code of Criminal Procedure Article 648(B)(3) after
18 a determination that the person will not attain the capacity to proceed with his trial.
19 C. Any person serving a sentence who becomes mentally ill may be
20 committed to the proper institution in the manner provided for judicial commitment
21 by the district court of the place of incarceration and contradictorily with the
22 superintendent of the place of incarceration or with the sheriff of that parish. The
23 period of commitment shall be credited against the sentence imposed by the court.
24 * * *
25 §454.6. Judicial hearings; commitments
26 A. The hearing shall take precedence over all other matters, except pending
27 cases of the same type, and shall be a closed hearing. The court shall conduct the
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1 hearing in as formal a manner as is possible under the circumstances and shall adhere
2 to the following:
3 * * *
4 (5) If the department is not the petitioner, the department or its counsel may
5 present evidence, call witnesses, and cross-examine any witness testifying at the
6 hearing.
7 (6) If the respondent is present at the hearing and is medicated, the court
8 shall be informed of the medication and its common effects.
9 (6) (7) The court shall cause a recording of the testimony of the hearing to
10 be made, which shall be transcribed only in the event of an appeal from the
11 judgment.
12 B. If the court finds by clear and convincing evidence that the respondent has
13 a developmental disability and is either dangerous to himself or dangerous to others,
14 it may render a judgment for his commitment. Courts committing persons to the
15 custody of the department shall not make such commitments to specific private or
16 public facilities but shall only commit such individuals to the department. If the
17 department is not the petitioner, the parties shall first consult with the department or
18 its counsel before entering into a judgment stipulating to a commitment of the
19 respondent to the department.
20 * * *
21 Section 2. This Act shall become effective upon signature by the governor or, if not
22signed by the governor, upon expiration of the time for bills to become law without signature
23by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
24vetoed by the governor and subsequently approved by the legislature, this Act shall become
25effective on the day following such approval.
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 395 Reengrossed 2017 Regular Session Dustin Miller
Abstract: Updates provisions relative to judicial commitment and mental health treatment.
Present law provides for the involuntary judicial commitment of individuals for mental
health treatment.
Proposed law makes technical corrections to the provisions of law regarding judicial
commitment and updates terminology.
Present law sets forth the procedure for a hearing on a petition for judicial commitment.
Proposed law retains present law and specifies that the hearing shall take precedence over
all other matters, except pending cases of the same type, and shall be a closed hearing.
Proposed law authorizes the La. Dept. of Health (LDH), if not the petitioner, to present
evidence, call witnesses, and cross-examine witnesses testifying at the hearing. Further
limits LDH to presenting evidence and testimony regarding the placement of the respondent
in proceedings for judicial commitment based upon mental illness or substance use
disorders.
Proposed law requires the parties to the hearing, if LDH is not the petitioner, to consult with
the department before entering into a stipulated judgment committing the patient to the
department.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 28:54(A) and (C), 55(A)-(D) and (E)(1) and (5), 56(C) and (G)(4), 59(A)-(C),
454.6(A)(intro. para.), (5), and (6) and (B); Adds R.S. 28:454.6(A)(7))
Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Health and Welfare to
the original bill:
1. Delete proposed law extending the maximum length of time for the conditional
discharge of an individual subject to a judicial commitment.
2. Limit LDH to presenting evidence regarding the placement of the respondent in
proceedings for judicial commitment based upon mental illness or substance use
disorders.
3. Restore present law provisions requiring a contradictory hearing prior to the
extension of a conditional release.
4. Make technical changes.
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The House Floor Amendments to the engrossed bill:
1. Delete proposed law authorizing a person who is civilly committed by a criminal
court to request a formal voluntary admission.
2. Make technical changes.
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