An Act concerning legal representation of patients in mental health commitment proceedings, and amending P.L.1987, c.116 and P.L.2005, c.155.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1987, c.116 (C.30:4-27.2) is amended to read as follows:

2. As used in P.L.1987, c.116 (C.30:4-27.1 et seq.) and P.L.2009, c.112:

[a.] "Chief executive officer" means the person who is the chief administrative officer of an institution or psychiatric facility.

[b.] "Clinical certificate" means a form prepared by the division and approved by the Administrative Office of the Courts, that is completed by the psychiatrist or other physician who has examined the person who is subject to commitment within three days of presenting the person for involuntary commitment to treatment, and which states that the person is in need of involuntary commitment to treatment. The form shall also state the specific facts upon which the examining physician has based his conclusion and shall be certified in accordance with the Rules of the Court. A clinical certificate may not be executed by a person who is a relative, by blood or marriage [to] , of the person who is being screened.

[c.] "Clinical director" means the person who is designated by the director or chief executive officer to organize and supervise the clinical services provided in a screening service, or in a short-term care facility or psychiatric facility. The clinical director shall be a psychiatrist [,] ; however, those persons currently serving in the capacity of clinical director on the effective date of P.L.1987, c.116 (C.30:4-27.1 et seq.) will not be affected by this provision. This provision shall not alter any current civil service laws designating the qualifications of such position.

[d.] "Commissioner" means the Commissioner of Human Services.

[e.] "County adjuster" means the person appointed pursuant to R.S.30:4-34.

"County counsel" means the chief legal officer or advisor of the governing body of a county.

[f.] "Court" means the Superior Court or a municipal court.

[g.] "Custody" means the right and responsibility to ensure the provision of care and supervision.

[h.] "Dangerous to self" means that by reason of mental illness the person has threatened or attempted suicide or serious bodily
harm, or has behaved in such a manner as to indicate that the person is unable to satisfy [his] the person's need for nourishment, essential medical care, or shelter, [so] such that it is probable that substantial bodily injury, serious physical harm, or death will result within the reasonably foreseeable future; however, no person shall be deemed to be unable to satisfy his need for nourishment, essential medical care, or shelter if he is able to satisfy such needs with the supervision and assistance of others who are willing and available. This determination shall take into account a person's history, recent behavior, and any recent act, threat, or serious psychiatric deterioration.

[i.] "Dangerous to others or property" means that by reason of mental illness there is a substantial likelihood that the person will inflict serious bodily harm upon another person or cause serious property damage within the reasonably foreseeable future. This determination shall take into account a person's history, recent behavior, and any recent act, threat, or serious psychiatric deterioration.

[j.] "Department" means the Department of Human Services.

[k.] "Director" means the chief administrative officer of a screening service, short-term care facility, or special psychiatric hospital.

[l.] "Division" means the Division of Mental Health and Addiction Services in the Department of Human Services.

[m.] "Indigent patient" means a person who is admitted, on an inpatient basis, to a short-term care facility, psychiatric facility, or special psychiatric hospital, or who is assigned, on an outpatient basis, to an outpatient treatment provider, for the purposes of mental health treatment pursuant to P.L.1987, c.116 (C.30:4-27.1 et seq.), and who, in accordance with the provisions of section 33 of P.L.2005, c.155 (C.52:27EE-33), is determined to be eligible for mental health advocacy services on the basis of financial need, or is awaiting the results of a financial need determination undertaken by the Division of Mental Health Advocacy pursuant to that section.

"In need of involuntary commitment" or "in need of involuntary commitment to treatment" means that an adult with mental illness, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to accept appropriate treatment voluntarily after it has been offered, needs outpatient treatment at an outpatient treatment provider, or inpatient care at a short-term care [or] facility, psychiatric facility, or special psychiatric hospital, because other services are not appropriate or available to meet the person's mental health care needs.

[n.] "Institution" means any State or county facility providing inpatient care, supervision, and treatment for persons with developmental disabilities; except that with respect to the maintenance provisions of Title 30 of the Revised Statutes, institution also means any psychiatric facility for the treatment of persons with mental illness.

[o.] "Least restrictive environment" means the available setting and form of treatment that appropriately addresses a person's need for care and the need to respond to dangers to the person, others, or property, and that respects, to the greatest extent practicable, the person's interests in freedom of movement and self-direction.

"Mental health agency or facility" means a legal entity which receives funds from the State, county, or federal government to provide mental health services.

[p.] "Mental health screener" means a psychiatrist, psychologist, social worker, registered professional nurse, or other individual who is trained to do outreach only for the purposes of psychological assessment [who], is employed by a screening service, and possesses the license, academic training, or experience [, as] required by the commissioner pursuant to regulation; except that a psychiatrist and a State licensed clinical psychologist who meet the requirements for mental health screener shall not have to comply with any additional requirements adopted by the commissioner.

[q.] "Mental hospital" means, for the purposes of the payment and maintenance provisions of Title 30 of the Revised Statutes, a psychiatric facility.

[r.] "Mental illness" means a current, substantial disturbance of thought, mood, perception, or orientation which significantly impairs judgment, capacity to control behavior, or capacity to recognize reality, but does not include simple alcohol intoxication, transitory reaction to drug ingestion, organic brain syndrome, or developmental disability unless it results in the severity of impairment described herein. The term mental illness is not limited to "psychosis" or "active psychosis," but shall include all conditions that result in the severity of impairment described herein.

[s.] "Outpatient treatment" means clinically appropriate care, which is based on proven or promising treatments directed to wellness and recovery, and which is provided to a patient, who is not in need of inpatient treatment, by a member of the patient's treatment team. Outpatient treatment may include, but shall not be limited to, day treatment services, case management, residential services, outpatient counseling and psychotherapy, and medication-assisted treatment.

"Outpatient treatment provider" means a community-based provider, which is designated as an outpatient treatment provider pursuant to section 8 of P.L.1987, c.116 (C.30:4-27.8), and which provides or coordinates the provision of outpatient treatment to persons in need of involuntary commitment to treatment.

"Patient" means a person over the age of 18 who has been admitted to, but not discharged from, a short-term care [or] facility, psychiatric facility, or special psychiatric hospital, or who has been assigned to, but not discharged from an outpatient treatment provider.

[t.] "Physician" means a person who is licensed to practice medicine in any one of the United States or its territories, or the District of Columbia.

[u.] "Plan of outpatient treatment" means a plan for recovery from mental illness that is approved by a court pursuant to section 17 of P.L.2009, c.112 (C.30:4-27.15a), that is to be carried out in an outpatient setting, and that is prepared by an outpatient treatment provider for a patient who has a history of responding to treatment. The plan may include medication as a component of the plan; however, medication shall not be involuntarily administered in an outpatient setting.

"Psychiatric facility" means a State psychiatric hospital listed in R.S.30:1-7, a county psychiatric hospital, or a psychiatric unit of a county hospital.

[v.] "Psychiatrist" means a physician who has completed the training requirements of the American Board of Psychiatry and Neurology.

[w.] "Psychiatric unit of a general hospital" means an inpatient unit of a general hospital that restricts its services to the care and treatment of persons with mental illness who are admitted on a voluntary basis.

[x.] "Psychologist" means a person who is licensed as a psychologist by the [New Jersey] State Board of Psychological Examiners.

[y.] "Reasonably foreseeable future" means a time frame that may be beyond the immediate or imminent, but that is not longer than a time frame as to which reasonably certain judgments about a person's likely behavior can be reached.

"Screening certificate" means a clinical certificate executed by a psychiatrist or other physician affiliated with a screening service.

[z. "Screening service" means a public or private ambulatory care service designated by the commissioner, which provides mental health services including assessment, emergency , and referral services to persons with mental illness in a specified geographic area.

aa.] "Screening outreach visit" means an evaluation of a person, which is provided by a mental health screener wherever the person may be when clinically relevant information indicates the person may need involuntary commitment to treatment and is unable or unwilling to come to a screening service.

[bb.] "Screening service" means a public or private ambulatory care service designated by the commissioner, which provides mental health services, including assessment, emergency, and referral services, to persons with mental illness in a specified geographic area.

"Short-term care facility" means an inpatient, community based mental health treatment facility that is authorized to serve persons from specified geographic regions and is designated as a short-term care facility pursuant to section 8 of P.L.1987, c.116 (C.30:4-27.8), and which provides acute care and assessment services to a person [with] who has a mental illness [whose mental illness] that causes the person to be dangerous to self or dangerous to others or property. [A short-term care facility is so designated by the commissioner and is authorized by the commissioner to serve persons from a specified geographic area.] A short-term care facility may be a part of a general hospital or other appropriate health care facility and, in such case, shall meet certificate of need requirements, and shall be licensed and inspected by the Department of Health [and Senior Services] pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) [and], in accordance with standards developed jointly [with] by the [Commissioner] Commissioners of Health and Human Services.

[cc.] "Special psychiatric hospital" means a public or private hospital licensed by the Department of Health [and Senior Services] to provide voluntary and involuntary mental health services, including assessment, care, supervision, treatment, and rehabilitation services, to persons with mental illness.

[dd.] "Treatment team" means an integrated group of one or more persons [, including] that provides mental health services to a patient of a screening service, of an outpatient treatment provider, of a short-term care facility, or of a psychiatric facility, and which includes at least one psychiatrist or physician [, and]. A treatment team may also include a psychologist, social worker, nurse, and other appropriate services providers. [A treatment team provides mental health services to a patient of a screening service, outpatient treatment provider, or short-term care or psychiatric facility.]

[ee.] "Voluntary admission" means that an adult with mental illness, whose mental illness causes the person to be dangerous to self or dangerous to others or property and is willing to be admitted to a facility voluntarily for care, needs care at a short-term care or psychiatric facility because other facilities or services are not appropriate or available to meet the person's mental health needs. A person may also be voluntarily admitted to a psychiatric facility if his mental illness presents a substantial likelihood of rapid deterioration in functioning in the near future, there are no appropriate community alternatives available, and the psychiatric facility can admit the person and remain within its rated capacity.

[ff. "County adjuster" means the person appointed pursuant to R.S.30:4-34.

gg. "Least restrictive environment" means the available setting and form of treatment that appropriately addresses a person's need for care and the need to respond to dangers to the person, others or property and respects, to the greatest extent practicable, the person's interests in freedom of movement and self-direction.

hh. "Outpatient treatment" means clinically appropriate care based on proven or promising treatments directed to wellness and recovery, provided by a member of the patient's treatment team to a person not in need of inpatient treatment. Outpatient treatment may include, but shall not be limited to, day treatment services, case management, residential services, outpatient counseling and psychotherapy, and medication treatment.

ii. "Outpatient treatment provider" means a community-based provider, designated as an outpatient treatment provider pursuant to section 8 of P.L.1987, c.116 (C.30:4-27.8), that provides or coordinates the provision of outpatient treatment to persons in need of involuntary commitment to treatment.

jj. "Plan of outpatient treatment" means a plan for recovery from mental illness approved by a court pursuant to section 17 of P.L.2009, c.112 (C.30:4-27.15a) that is to be carried out in an outpatient setting and is prepared by an outpatient treatment provider for a patient who has a history of responding to treatment. The plan may include medication as a component of the plan; however, medication shall not be involuntarily administered in an outpatient setting.

kk. "Reasonably foreseeable future" means a time frame that may be beyond the immediate or imminent, but not longer than a time frame as to which reasonably certain judgments about a person's likely behavior can be reached.]

(cf: P.L.2009, c.112, s.2)

2. Section 11 of P.L.1987, c.116 (C.30:4-27.11) is amended to read as follows:

11. A patient admitted to a short-term care [or] facility, psychiatric facility, or special psychiatric hospital, or assigned to an outpatient treatment provider, either on a voluntary or involuntary basis, [or assigned to an outpatient treatment provider has] shall have the following rights:

a. The right to have examinations and services provided in the patient's primary means of communication, including, as soon as possible, the aid of an interpreter if needed because the patient is of limited English-speaking ability or suffers from a speech or hearing impairment;

b. The right to receive a verbal explanation of : (1) the reasons for the patient's admission to the inpatient facility or hospital, or assignment to the outpatient treatment provider, as applicable, (2) the availability of an attorney, and (3) the rights provided in P.L.1987, c.116 (C.30:4-27.1 et seq.) and P.L.2009, c.112; and

c. The right to be represented by [an attorney and] private legal counsel or, if [unrepresented or] unable to afford [an attorney] private legal counsel, the right to be provided with [an attorney] legal counsel paid for by the [appropriate government agency] Division of Mental Health Advocacy in the Office of the Public Defender. [An attorney] Legal counsel representing a patient has the right to inspect and copy the patient's clinical chart.

The clinical director of the inpatient facility or hospital, or the outpatient treatment provider, as appropriate, shall ensure that a written statement of the rights provided in P.L.1987, c.116 (C.30:4-27.1 et seq.) and P.L.2009, c.112 is provided to patients at the time of admission or assignment, as applicable, or as soon as possible thereafter, and to patients and their families upon request.

(cf: P.L.2009, c.112, s.12)

3. Section 12 of P.L.1987, c.116 (C.30:4-27.12) is amended to read as follows:

12. a. A patient who is involuntarily committed to treatment and assigned to an outpatient treatment provider, or who is involuntarily committed to treatment and admitted to a short-term care [or] facility, psychiatric facility, or special psychiatric hospital shall receive a court hearing [with respect to the issue of] to evaluate the continued need for involuntary commitment, within 20 days from initial commitment, unless the patient has been administratively discharged pursuant to section 17 of P.L.1987, c.116 (C.30:4-27.17). However, if a person is involuntarily committed pursuant to subsection c. or d. of section 10 of P.L.1987, c.116 (C.30:4-27.10), that person immediately shall be committed to the Ann Klein Forensic Center in Trenton or other facility designated for the criminally insane for the duration of the 20-day waiting period.

b. Except as provided in subsection c. of this section, the assigned county counsel is responsible for presenting the case for the patient's involuntary commitment to the court, unless the county adjuster is licensed to practice law in this State, in which case the county adjuster shall present the case for the patient's involuntary commitment to the court.

c. Notwithstanding the provisions of subsection b. of this section, and upon notice to the county adjuster:

(1) The Attorney General, or the county prosecutor acting at the request of the Attorney General, may supersede the county counsel or county adjuster and assume responsibility for presenting any case for involuntary commitment to treatment, or may elect to participate with the county counsel or county adjuster in presenting any such case; and

(2) The county prosecutor may supersede the county counsel or county adjuster and assume responsibility for presenting any case for involuntary commitment to treatment that is initiated by the county prosecutor pursuant to subsection c. of section 10 of P.L.1987, c.116 (C.30:4-27.10), or may elect to participate with the county counsel in the presentation of any such case.

d. A patient subject to involuntary commitment to treatment shall have legal counsel present at the involuntary commitment hearing, which is held pursuant to subsection a. of this section, and shall not be permitted to appear at the hearing without legal counsel. The Division of Mental Health Advocacy, in the Office of the Public Defender, shall provide legal counsel for any indigent patient who is the subject of an involuntary commitment hearing initiated pursuant to this section.

(cf: P.L.2009, c.112, s.13)

4. Section 14 of P.L.1987, c.116 (C.30:4-27.14) is amended to read as follows:

14. A person subject to involuntary commitment to treatment has the following rights at a court hearing and any subsequent review court hearing:

a. The right to be represented by private legal counsel or, if an indigent patient, to be represented by court appointed legal counsel from the Division of Mental Health Advocacy, in the Office of the Public Defender;

b. The right to be present at the court hearing unless the court determines that , because of the person's conduct at the court hearing, the proceeding cannot reasonably continue while the person is present;

c. The right to present evidence;

d. The right to cross examine witnesses; and

e. The right to a hearing in camera.

(cf: P.L.2009, c.112, s.15)

5. Section 12 of P.L.2005, c.155 (C.52:27EE-12) is amended to read as follows:

12. Definitions.

As used in sections 27, 32, 33, 48, 50, 51 and 64 of P.L.2005, c.155 (C.52:27EE-27, C.52:27EE-32, C.52:27EE-33, C.52:27EE-48, C.52:27EE-50, C.52:27EE-51 and C.52:27EE-64):

["consumer] "Consumer insurance rate increases" means prior approval rate increases for: personal lines property casualty coverages; Medicare supplemental coverages; or a rating system change pursuant to section 14 of P.L.1997, c.151 (C.17:29A-46.1 [et seq.]) [;] .

["correctional] "Correctional facility" means a jail, prison, lockup, penitentiary, reformatory, training school, or other similar facility within the State of New Jersey [;] .

["elderly"] "Elderly" means a person age 60 years or older [;] .

["facility"] "Facility" means, whenever [referred to] referenced in section 64 of P.L.2005, c.155 (C.52:27EE-64), [means] any facility or institution, whether public or private, offering health or health related services for the institutionalized elderly, and which is subject to regulation, visitation, inspection, or supervision by any government agency. Facilities include, but are not limited to, nursing homes, skilled nursing homes, intermediate care facilities, extended care facilities, convalescent homes, rehabilitation centers, residential health care facilities, special hospitals, veterans' hospitals, chronic disease hospitals, psychiatric hospitals, mental hospitals, developmental centers or facilities, day care facilities for the elderly, and medical day care centers [;] .

["indigent mental hospital admittee"] "Indigent patient" means a person who [has been admitted to and is a patient in a mental hospital, an institution for the care and treatment of persons with mental illness, or a similar facility, whether public or private, State, county or local, or who is the subject of an action for admission as provided by] is admitted to a short-term care facility, psychiatric facility, or special psychiatric hospital, or who is assigned to an outpatient treatment provider, for the purposes of mental health treatment pursuant to P.L.1987, c.116 (C.30:4-27.1 et seq.), and who [does not have the financial ability to secure competent representation and to provide all other necessary expenses of representation] is determined to be eligible for mental health advocacy services on the basis of financial need, in accordance with the provisions of section 33 of P.L.2005, c.155 (C.52:27EE-33), or is awaiting the results of a financial need eligibility determination undertaken by the Division of Mental Health Advocacy pursuant to that section [;] .

["institutionalized] "Institutionalized elderly" means any person 60 years of age or older, who is a patient, resident, or client of any facility, as described herein [;] .

["public] "Public" interest" means an interest or right arising from the Constitution, decisions of court, common law, or other laws of the United States or of this State inhering in the citizens of this State or in a broad class of such citizens.

(cf: P.L.2010, c.50, s.78)

6. Section 30 of P.L.2005, c.155 (C.52:27EE-30) is amended to read as follows:

30. Division of Mental Health Advocacy; objective; duties.

a. The Division of Mental Health Advocacy shall promote, advocate, and ensure the adequacy of the care received, and the quality of life experienced, by persons with mental illness, including patients, residents, and clients within the inpatient mental health treatment facilities and outpatient mental health treatment programs that are operated, funded, or licensed by the State. In determining what elements are essential to ensure adequate care and quality of life, the division shall consider the unique medical, social, and economic needs and problems of persons with mental illness as patients, residents, and clients of facilities and as citizens and community members.

b. The director shall establish and implement procedures to elicit, receive, process, respond, and resolve complaints from patients, their families, other interested citizens, public officials, and government agencies concerning conditions in the State's inpatient mental health treatment facilities and outpatient mental health treatment programs.

(cf: P.L.2005, c.155, s.30)

7. Section 32 of P.L.2005, c.155 (C.52:27EE-32) is amended to read as follows:

32. Division of Mental Health Advocacy; legal representation; medical consultation.

a. The Division of Mental Health Advocacy [may] shall provide such legal representation and medical consultation, as the director deems appropriate , for any indigent [mental hospital admittee] patient who is admitted to a short-term care facility, psychiatric facility, or special psychiatric hospital, as those terms are defined by section 2 of P.L.1987, c.116 (C.30:4-27.2), in any proceeding concerning the [admittee's] indigent patient's admission to, [and] retention in, or release from , confinement in such [a hospital, institution , or] inpatient facility.

b. The Division of Mental Health Advocacy shall provide such legal representation and medical consultation, as the director deems appropriate, for any indigent patient who is assigned to an outpatient treatment provider, as that term is defined by section 2 of P.L.1987, c.116 (C.30:4-27.2), in any proceeding concerning the person's assignment to, retention in, or release from, such outpatient treatment.

(cf: P.L.2005, c.155, s.32)

8. This act shall take effect immediately.

STATEMENT

This bill would clarify that the Division of Mental Health Advocacy, in the Office of the Public Defender, is obligated to provide legal representation for indigent mental health patients in all judicial proceedings related to the patients' involuntary commitment, regardless of whether that commitment is associated with inpatient or outpatient treatment.

Existing law expressly authorizes the Division of Mental Health Advocacy to provide legal representation and medical consultation for any indigent person involuntarily committed to treatment and admitted, on an inpatient basis, to a mental hospital or other mental health institution or facility, in any judicial proceeding that concerns the person's admission to, retention in, or release from such inpatient confinement. However, existing law does not similarly authorize the division to provide legal representation and medical consultation for an indigent person who is involuntarily committed to treatment and assigned to an outpatient mental health treatment provider.

The use of outpatient treatment in association with the involuntary commitment process is a novel concept, which was recently incorporated into State law through the enactment of P.L.2009, c.112. Although persons assigned to an outpatient treatment provider are entitled, under P.L.2009, c.112, to the same rights to legal representation as are available to persons who are committed to inpatient treatment, there has been some confusion, in practice, as to whether the Division of Mental Health Advocacy is enabled or required by law to provide the requisite legal representation for individuals assigned to an outpatient treatment provider who lack the financial resources to secure private counsel. Accordingly, this bill would clarify that the division is required by law to provide legal representation for indigent patients who have been involuntarily assigned to an outpatient treatment provider, to the same extent as the division is required to provide representation for indigent patients who have been involuntarily committed to inpatient treatment.

Section 33 of P.L.2005, c.155 (C.52:27EE-33) provides that the division is authorized to provide representation to any person who is determined to be eligible for advocacy services on the basis of financial need. In addition, the section of law requires the division to provide provisional representation to any patient who is awaiting the results of the division's financial need determination, during the pendency of that determination. Thus, in order to remain consistent with this provision, the bill defines an "indigent patient" - i.e., a patient for whom the division must provide legal representation - as any person who is admitted, on an inpatient basis, to a short-term care facility, psychiatric facility, or special psychiatric hospital, or who is assigned, on an outpatient basis, to an outpatient treatment provider, for the purposes of mental health treatment, and who, in accordance with the provisions of section 33 of P.L.2005, c.155 (C.52:27EE-33), is determined to be eligible for mental health advocacy services on the basis of financial need, or is awaiting the results of a financial need determination undertaken by the Division of Mental Health Advocacy pursuant to that section.

Finally, the bill makes technical and clarifying changes to the existing law in this area, in order to ensure both that statutory language is used consistently from section to section, and that the relevant definitional sections comport with modern tenets of statutory drafting, including those tenets requiring the alphabetization of definitional terms, and providing against the use of subsection demarcations.

It is the sponsor's intent to reduce local property taxes through the enactment of this bill. Currently, each county adjuster is burdened with the obligation to provide private representation, at county expense, for each indigent person who is involved in judicial proceedings in that county, in association with the patient's commitment to outpatient mental health treatment. Because counties must rely on property tax revenue to pay the costs associated with this representation, the elimination of this county-level obligation, and the assumption of this obligation by the State, may enable counties to effectively reduce property taxes.