CHAPTER THREE SUBSTANCE ABUSE

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1 CHAPTER THREE SUBSTANCE ABUSE A. GENERALLY FOLLOW ADULT RULES...2 B. PERSONS SUBJECT TO COMMITMENT...2 C. THE COMMITMENT PROCESS APPLICATION STATEMENT OF PHYSICIAN OR AFFIDAVIT ORDERS RESPONDENT SERVED IMMEDIATE CUSTODY RESPONDENT EXAMINED COMMITMENT HEARING OUTPATIENT TREATMENT OR HOSPITALIZATION FAILURE TO COMPLY WITH COMMITMENT REQUIREMENTS CUSTODY, DISCHARGE AND TERMINATION AFTER REGULAR WORKING HOURS EMERGENCY PROCEDURES RELATED PROVISIONS CHAPTER D. PROTOCOL...10 CHECKLIST...11 APPENDIX...12

2 A. GENERALLY FOLLOW ADULT RULES The involuntary commitment of minors for chronic substance abuse follows the same basic rules under Iowa Code Chapter 125 as for adults with one notable exception. It is the juvenile court who has exclusive jurisdiction over such commitments and thus it is a juvenile court judge to the exclusion of magistrates (unless specially designated) who have jurisdiction over such commitments. Contrary to provisions for the voluntary commitment of minors under Iowa Code section 229.2(1) for mental illness, there do not exist similar provisions for the voluntary commitment of minors for chronic substance abuse under Chapter 125. MINORS [under the age of 18 years] are subject to the exclusive, original jurisdiction of the Juvenile Court regarding their hospitalization and treatment for chronic substance abuse. [Iowa Code Section A.] B. PERSONS SUBJECT TO COMMITMENT A chronic substance abuser is defined as a person who: 1. Habitually lacks self control as to the use of chemical substances to the extent that the person is likely to seriously endanger the person s health, or to physically injure the person s self or others, if allowed to remain at liberty without treatment; AND 2. Lacks sufficient judgment to make responsible decisions with respect to the person s hospitalization or treatment. [Iowa Code Section 125.2(4) A chemical substance means alcohol, wine, spirits, and beer as defined in chapter 123 and controlled substances as defined in Iowa Code Section , i.e., a drug, substance or immediate precursor in Schedules I through V of Division II of Chapter 124 [Iowa Code Section (5)] which includes opiates, opium derivatives, hallucinogenic substances such as L.S.D., marijuana, and mescaline, depressants, stimulants, peyote, and similar substances which may in varying degrees lead to psychological or physical dependence if abused. [Iowa Code Section 125.2(3).] 2

3 Those who meet the statutory definition of chronic substance abuser are subject to commitment for evaluation and treatment under Iowa Code Section Proof is required on three basic issues: 1. The person habitually lacks self control as to the use of chemical substances; AND 2. The extent of use is either: A. Likely to seriously endanger the person s health; OR B. Likely to physically injure self or others; AND 3. The person lacks sufficient judgment to make responsible treatment decisions. C. THE COMMITMENT PROCESS 1. APPLICATION The application is filed with the Clerk of Court by an interested person, i.e., one with an interest in the treatment of the Respondent and who has sufficient association with or knowledge about the Respondent to provide the information required. [Iowa Code , Rule 13.1 of the Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers, Supreme Court Form 1 - Application Alleging Chronic Substance Abuse Pursuant to Iowa Code Section ] 2. STATEMENT OF PHYSICIAN OR AFFIDAVIT Filed with the application must be either: a. A written STATEMENT OF PHYSICIAN done by a licensed physician in support of the application. [Iowa Code Section (3)(a)]. There is no approved Supreme Court form. It may be on the letterhead of the physician or the hospital with which the physician is associated. OR b. One or more supporting AFFIDAVITS corroborating the application. [Iowa Code Section (3)(b), Supreme Court Form 2.] AND/OR c. Other corroborative information obtained and reduced to writing by the Clerk but only when circumstances make it infeasible to comply with, or when the Clerk considers it appropriate to supplement the physician s statement or affidavit. [Iowa Code Section (3)(c).] 3

4 3. ORDERS The Juvenile Judge* then reviews the documents and if sufficient orders: a. Time and place for hearing [Iowa Code Section (3)(a), FORM 3]; b. Appoints counsel for Respondent [Iowa Code Section (1), FORM 5]; and c. Examine Respondent by physician [Iowa Code Section (3)(b), FORM 9]. Note: Only a juvenile judge, i.e., District Judge, District Associate Judge designated a Juvenile Judge, or Associate Juvenile Judge, has jurisdiction to enter orders concerning the hospitalization of minors, to the exclusion of magistrates or hospitalization referees, unless designated as part-time associate juvenile judges. 4. RESPONDENT SERVED The Respondent is served notice of the Application, Supporting Documents, and if issued, the Immediate Custody Order, by personal service and not by substitution and is required to submit to examination as ordered or face limited detention to accomplish the examination. [Iowa Code Sections and , Rule 13.3, Iowa Supreme Court Rules for Involuntary Commitment or Treatment of Chronic Substance Abusers.] 5. IMMEDIATE CUSTODY Immediate custody of the Respondent is taken by the Sheriff if ordered by the court upon a finding of probable cause to believe the Respondent is a chronic substance abuser and the Respondent is likely to physically injure self or others if allowed to remain at liberty. [Iowa Code Section , Rule 13.14, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers, FORM 4.] Likely to physically injure self or others means probable or reasonably to be expected, not just possible. Matter of Foster, 426 N.W.2d 374, 377 (Iowa 1988). Detention must be in the least restrictive of the following: (a) in the custody of a relative, friend or other suitable person willing to accept responsibility to supervise the person; (b) in a suitable hospital or other private or public facility suitably equipped and staffed; or (c) in the nearest facility in the community licensed to care for the mentally ill or substance abusers, but not a jail. [Iowa Code Section , Rule 13.14, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] If practicable, the Respondent s attorney should be allowed to present evidence and argument prior to the entry of an immediate custody order. [Rule 13.10, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] If such is not practicable, the same should be allowed during the course of the Respondent s confinement. [Rule 13.11, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] 4

5 6. RESPONDENT EXAMINED The Respondent is examined by a physician within a reasonable time, not to exceed twenty-four hours if the Respondent was taken into immediate custody and placed in a hospital and within forty-eight hours if placed with a relative, friend, or in a community mental health facility. The physician then completes and files with the District Court Clerk a REPORT OF EXAMINATION [Iowa Code Section , FORM 8] and the report is distributed to the Court, County Attorney and Respondent s counsel. 7. COMMITMENT HEARING The commitment hearing is then held, not sooner than forty-eight hours from the service of notice on the Respondent and not later than five (5) days thereafter if the Respondent was taken into immediate custody, unless the fifth day is on Saturday, Sunday, or a holiday when the time is extended to the next business day. [Iowa Code Sections (3)(a) and ] The hearing may be held sooner than forty-eight hours, but only if the time is waived by the Respondent in writing and the Court determines that the Respondent s best interests will not be harmed by such waiver. [Iowa Code Section (3)(a), Rule 13.4, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] If the physician reports that the Respondent is a chronic substance abuser, the hearing should be held not more than forty-eight hours after the report is filed, excluding weekends and holidays. The time of the hearing may be continued past the statutory limit where the Respondent is detained under an Immediate Custody Order only upon the request of the Respondent or the Respondent s attorney if sufficient grounds exist, e.g., to allow the Respondent additional time to prepare their case. Such continuance can be for no more than five additional days, unless the Respondent consents in writing. [Iowa Code Section (4), Rule 13.5, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers, FORM 9.] a. The County Attorney, if the applicant, or otherwise, the Applicant s Attorney presents the evidence in support of the application, which includes testimony of the applicant, affiant, examining physician, and others if necessary. [Iowa Code Section (1).] The examining physician or mental health professional is required to personally attend the hearing, unless the court waives the examiner s presence or telephonic testimony is used. [Rule 13.19, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] The case is most often made or not made based upon the opinion of the examining physician. b. All relevant and material evidence is admissible. The court is not bound by the rules of evidence, i.e., hearsay is admissible. [Iowa Code Section (4).] 5

6 c. The Respondent has a right to be personally present at the hearing, unless either: (1) The Respondent s presence is waived in writing by Respondent s attorney [Iowa Code Section (3), Rule 13.19, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers, FORM 10]; OR (2) The Respondent is excluded from the hearing upon motion of the County Attorney or Applicant s Attorney because the witnesses testimony is likely to cause the Respondent severe emotional trauma. [Iowa Code Section (2).] d. The Court is to be notified by the physician if the Respondent has been medicated within twelve hours [or longer if the court so designates] and if so, what effect the medication may have. [Iowa Code Section (1), Rule 13.30, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers, FORM 11.] e. The presumption is in favor of the Respondent. The applicant has the burden of proof, and the contention must be sustained by clear and convincing evidence. [Iowa Code Section (4).] f. The Respondent has the right to testify, to cross examine witnesses, and to call witnesses on his or her own behalf. [Iowa Code Section (1).] The Respondent has the right to a separate examination by a licensed physician of his or her own choosing and to have that physician report and testify. [Iowa Code Section (1).] The separate examination is conducted at county expense where the Respondent lacks sufficient funds to pay the cost. Any licensed physician conducting an examination pursuant to this section may consult with or request the participation in the examination of any qualified mental health professional, and may include with or attach to the written report of the examination any findings or observations by any qualified mental health professional who has been so consulted or has so participated in the examination. [Iowa Code Section ] g. The Doctor-patient privilege granted by Section is not applicable in involuntary hospitalization proceedings. Matter of T.C.F., 400 N.W.2d 544 (Iowa 1987). 8. OUTPATIENT TREATMENT OR HOSPITALIZATION The Respondent is ordered to outpatient treatment or hospitalized for a complete evaluation and treatment if the Court finds that the Respondent is a chronic substance abuser. [Iowa Code Section ] It is both constitutionally and statutorily mandated that the Respondent be treated in the least restrictive environment medically possible. Leonard v. State, 491 N.W.2d 508, 512 (Iowa 1992). Thus where the Respondent may be treated on an out-patient basis, such should be ordered and in-patient hospitalization should not be ordered. Amenability to treatment is relevant on the issue of continued hospitalization, but is not an element which must be proven in advance of the initial commitment. Matter of Oseing, 296 N.W.2d 797, 799 (Iowa 1980). The court shall furnish to the chief medical 6

7 officer of the hospital or facility at the time the respondent arrives at the hospital or facility a written statement of facts setting forth the evidence on which the finding is based. [Iowa Code Section ] a. INITIAL REPORT. An initial report is required concerning the need for continued hospitalization. Within fifteen days of placement after the hearing, unless the Court grants an extension of time, the chief medical officer of the facility must file a report with the Court with recommendations for either: (1) release from treatment and termination of the proceedings; (2) continued full-time hospitalization and treatment; (3) out-patient commitment with revocation and recommitment to the hospital in the event the Respondent fails to comply with the out-patient program; or (4) placement in an alternative facility, e.g., a county care facility or nursing home. [Iowa Code Section , Rule 13.24, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers, FORM 20.] The failure of the chief medical officer to timely file this report is punishable as contempt of court. [Iowa Code Section ] b. PERIODIC REPORTS. Subsequently, periodic reports are made as follows [Iowa Code Section , Rule 13.24, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers]: (1) If the Respondent remains hospitalized no later than 30 days initially and 90 days thereafter [Iowa Code Section (1), FORM 21]; or (2) If the Respondent is on out-patient commitment, no later than 60 days initially and every 90 days thereafter [Iowa Code Section (2), FORM 22]. An extension of the fifteen day report requirement may be granted by the court for good cause for a period not to exceed seven days upon written application of the chief medical officer. [FORM ORDER 18, Iowa Code Section , Rule 13.23, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] Respondent s attorney has a right to contest the extension. 9. FAILURE TO COMPLY WITH COMMITMENT REQUIREMENTS If, after placement and admission of a respondent in or under the care of a hospital or other suitable facility, the respondent departs from the hospital or facility or fails to appear for treatment as ordered without prior proper authorization from the chief medical officer, upon receipt of notification of the respondent's departure or failure to appear by the chief medical officer, a peace officer of the state shall without further order of the court exercise all due diligence to take the respondent into protective custody and return the respondent to the hospital or facility. [Iowa Code Section (5).] 7

8 10. CUSTODY, DISCHARGE AND TERMINATION A Respondent placed under commitment for full-time hospitalization, remains in treatment for a maximum of thirty (30) days, unless the administrator of the facility obtains a court order for recommitment, for a further period not to exceed ninety days. A recommitment may again be extended for a further period of ninety days. Within ten days of the entry of an order for recommitment, a recommitment hearing shall be held in like manner to the original hearing. [Iowa Code Section ] 11. AFTER REGULAR WORKING HOURS When the office of the Clerk of Court is closed, local authorities may have arranged for protocols and procedures whereby the commitment forms are kept at local law enforcement centers. Juvenile judges may then be contacted and committal orders entered as appropriate. 12. EMERGENCY PROCEDURES Emergency Procedures are available in the event the normal process of filing the application and affidavit with the Clerk are not available and direct access to the court is not possible. [See Op. Atty. Gen. (Tullar) October 15, 1981.] The emergency procedure involves a peace officer or interested person delivering the Respondent to the nearest available facility, public or private, which is equipped and staffed to provide in-patient care to persons with substance abuse. The peace officer or other person describes the circumstances to the examining physician. A written statement of a person with first-hand knowledge may also be used. [STATEMENT] The medical officer then makes a determination whether the person is intoxicated, has threatened, attempted or inflicted physical harm on self or others, and is likely to physically injure self or others or is incapacitated by a chemical substance. If such a determination is made, the examining physician contacts the nearest available magistrate [juvenile judge in the case of a minor] who may give a verbal order followed by a written order the next day. [Iowa Code Section , FORM 26, Rule 13.30, Iowa Supreme Court Rules for Involuntary Commitment of Chronic Substance Abusers.] The detention order entered by the magistrate [juvenile judge] is only good for fortyeight hours excluding Saturday, Sunday and holidays. An application for involuntary hospitalization must still be filed with the clerk of court prior to the expiration of the detention order or the Respondent must be released. [Iowa Code Section (4).] 8

9 13. RELATED PROVISIONS CHAPTER 232 Additionally, the juvenile code provides for evaluation of minor persons who are substance abusers in delinquency proceedings [Iowa Code Section ], and in child in need of assistance proceedings [Iowa Code Section ] and for placement of minors in substance abuse treatment in delinquency proceedings [Iowa Code Section A] and in child in need of assistance proceedings. [Iowa Code Section ] 9

10 D. PROTOCOL SUBSTANCE ABUSE COMMITMENTS - CHAPTER 125 STEP 1 - An individual with sufficient knowledge of the facts completes FORM 1, the Application Alleging Chronic Substance Abuse Pursuant to Section STEP 2 - A second individual completes FORM 2, the Affidavit in Support of Application Alleging Chronic Substance Abuse Pursuant to Section AND/OR There is attached to the Application, a written statement of a licensed physician in support of the application. STEP 3 - FAX or telephone the Hospitalization Referee, District Judge, District Associate Judge, or full-time or part-time Associate Juvenile Judge to request an immediate custody order, if required. Arrangements are made with a suitable facility for custody if needed. STEP 4 - The judicial officer reviews the application, affidavit and/or physician's statement and if appropriate enters an ORDER FOR IMMEDIATE CUSTODY, FORM 4, ORDER APPOINTING PHYSICIAN, FORM 9, ORDER APPOINTING RESPONDENT S ATTORNEY, FORM 6, and prepares the NOTICE TO RESPONDENT AND ORDER SETTING HEARING, FORM 3. STEP 5 - The dispatcher notifies the Hospital to which the court orders the individual of the person's name and estimated time of arrival. STEP 6 - The Deputy serves the Respondent with a copy of FORMS 1, 2, 3, 4, 6 & 9 with return being made to the Clerk of Court and transports the Respondent to the Hospital, providing the hospital also with a copy of the completed forms. 10

11 CHECKLIST CHECKLIST FOR SUBSTANCE ABUSE COMMITMENT HEARING Application - Applicant Testimony Physician s Report of Examination - Physician Testimony Has Respondent Been Medicated Last 12 hours Respondent s Testimony -Witnesses Required Findings: a. Habitually Lacks Self Control re: Use of Substances b. Lacks Judgment re: Hospitalization and Treatment c(1). Likely to Seriously Endanger Own Health or c(2). Likely to Physically Injure Self or Others Treatment: a. Out-patient b. In-patient 11

12 APPENDIX CHAPTER THREE SUBSTANCE ABUSE Sup Ct Form Number Title (Word Version) (Adobe pdf read only Version) SA101 1 Application Alleging Chronic Substance Abuse SA102 2 Affidavit in Support of Application - Substance Abuse SA103 3 Notice to Respondent SA104 4 Order for Immediate Custody SA106 6 Order Appointing Attorney for Respondent SA109 9 Order Appointing Physician SA Discharge/Termination Proceedings - Section (4) SA Findings of Fact and Order Pursuant to Section SUBAB N/A Findings of Fact, Conclusions of Law & Order SA122 N/A Order Re: Outpatient Treatment Plan SA124 24[I] Order Re: Continued Hospitalization or Treatment SA125 24[O] Order Re: Continued Outpatient Treatment SA Order Confirming Discharge and Termination of Proceedings SA150 N/A Order Upon Transfer of Venue SA151 N/A Order Requiring Periodic Report SA160 N/A Notice of Revocation Hearing MENPROC N/A Mental Health/Substance Abuse Proceeding Form 12

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