A Battle with Alcoholism Can You Rely on a Certificate of Title? Legislative Report

Volume 76 No. 6 February 12, 2005 ALSO INSIDE A Battle with Alcoholism Can You Rely on a Certificate of Title? Legislative Report

2005 OBA DAY AT THE CAPITOL Monday, April 11 Mingle with members of the Oklahoma Legislature at the OBA Day at the Capitol a full day of opportunities for bar members to visit with legislators about the OBA legislative agenda. Meet at the Oklahoma Bar Center at 9 a.m. for the day s briefing. Talk to your legislators over a barbecue lunch provided by the OBA at the Capitol. At 5 p.m., a legislative reception will be held at the bar center for both bar members and legislators. Go to www.okbar.org for more details. Help show our legislators how much we care!

P ALASKA 7-DAY SAWYER GLACIER on Norwegian Spirit OBA/CLE PRESENTS: BREAKING THE ICE ON BOARD NORWEGIAN SPIRIT JOIN US ON THIS 7-DAY TRIP BACK IN TIME AND RECEIVE 6 HOURS CLE! Inside from... $ 1,477* July 23, 2005 Sailing round trip from Seattle Third & fourth guests in an inside cabin are $826.22 per person. Call Sandy for CLE registration at (405) 416-7026 or e-mail sandrac@okbar.org a c i f i c O c e Skagway a n Sawyer Glacier Juneau Inside Passage Ketchikan Prince Rupert Seattle DAY PORT ARRIVE DEPART 1 SEATTLE, WASHINGTON 4:00PM 2 CRUISE THE INSIDE PASSAGE 3 KETCHIKAN, ALASKA 7:00AM 3:00PM 4 JUNEAU, ALASKA 7:00AM 2:00PM CRUISE SAWYER GLACIER 5 SKAGWAY, ALASKA 7:00AM 5:00PM 6 PRINCE RUPERT, 2:00PM 9:00PM BRITISH COLUMBIA 7 CRUISE THE INSIDE PASSAGE SEATTLE, WASHINGTON 7:00AM* *Disembarkation usually begins two hours after docking. Air included from OKC to SEA! Call Marla Cavett for reservations and information at: TRAVEL VISION 309 West Oklahoma, Guthrie, OK 73044 (405) 282-6661 E-mail: marlakaye36@yahoo.com *Rates are per person, based on double occupancy and include air from OKC to SEA. This promotion is capacity controlled and subject to availability. All rates are in US Dollars. Government taxes, fees and onboard service charges are included. Ship s Registry: Bahamas 2005 NCL Corporation Ltd. All rights reserved. #3541

Once Upon a CLE a magical, mythical, and musical journey http://legalspan.com/okbar/ Dan Murdock: Man in Tights If you missed Dan Murdock starring in the OBA/CLE Legal Ethics Dinner: Once Upon a CLE, it s not too late. We ve got the EVIDENCE! The program and materials are available as an online OBA/CLE program. Take a look at the demo at http://legalspan.com/okbar/ Here you can find your favorite fairy tale and nursery rhyme characters, portrayed by OBA members and staff, as they guide you through a magical, mythical, and musical journey of legal ethics.

OFFICERS & BOARD OF GOVERNORS Michael D. Evans, President, Frederick William R. Grimm, President-Elect, Tulsa Rick Bozarth, Vice President, Taloga Harry A. Woods Jr., Immediate Past President, Oklahoma City Stephen D. Beam, Weatherford A. Camp Bonds Jr., Muskogee Dietmar K. Caudle, Lawton J. William Conger, Oklahoma City Michael W. Hogan, McAlester Jerome A. Holmes, Oklahoma City R. Victor Kennemer III, Wewoka Steven R. Mackey, Tulsa Mike Mordy, Ardmore Jon K. Parsley, Guymon Robert B. Sartin, Tulsa Linda S. Thomas, Bartlesville Luke Gaither, Henryetta, Chairperson, OBA/Young Lawyers Division BAR CENTER STAFF John Morris Williams, Executive Director; Dan Murdock, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Public Information; Craig D. Combs, Director of Administration; Gina L. Hendryx, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Rick Loomis, Director of Information Systems; Beverly S. Petry, Administrator MCLE Commission; Elizabeth K. Davis, Coordinator Law-related Education; Loraine Dillinder Farabow, Nathan Lockhart and Mike Speegle, Assistant General Counsels; Tony R. Blasier, Chief Investigator; Robert D. Hanks, Ray Page and Jim Yandell, Investigators Nina Anderson, Manni Arzola, Jenn Barrett, Jo Beall, Cheryl Beatty, Melissa Brown, Brenda Card, Sandy Cowden, Sharon Dotson, Johnny Marie Floyd, Matt Gayle, Susan Hall, Suzi Hendrix, Adrian March, Heidi McComb, Misty Mitchell, Wanda Reece-Murray, Sandy Neal, Patti Ownbey, Tim Priebe, Lori Rasmussen, Mark Schneidewent, Tiffany Toole & Roberta Yarbrough EDITORIAL BOARD Editor in Chief, John Morris Williams News & Layout Editor, Carol A. Manning Editor, Ronald Main, Tulsa Associate Editors: Steve Barnes, Poteau; Martha Rupp Carter, Tulsa; Luke Gaither, Henryetta; D. Renee Hildebrant, Oklahoma City; O.B. Johnston III, Vinita; John Munkacsy, Lawton; Julia Rieman, Enid; James Stuart, Shawnee and Judge Lori M. Walkley, Norman NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 Ethics Counsel (405) 416-7083 General Counsel (405) 416-7007 Law-related Education (405) 416-7005 Lawyers Helping Lawyers (800) 364-7886 Mgmt. Assistance Program (405) 416-7008 Mandatory CLE (405) 416-7009 OBJ & Public Information (405) 416-7004 Board of Bar Examiners (405) 416-7075 Oklahoma Bar Foundation (405) 416-7070 EVENTS CALENDAR FEBRUARY 16 OBA Solo and Small Firm Conference Planning Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Roger Reneau (405) 732-5432 Council Oak/Johnson-Sontag Chapter of American Inns of Court; 5:15 p.m.; Mid-Continent Building, 15th Floor, Tulsa; Contact Jodi Jayne at jjayne@gablelaw.com for additional information 17 OBA Bench and Bar Committee Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Brown (918) 581-8211 18 OBA Board of Governors Meeting; Oklahoma City; Contact: John Morris Williams (405) 416-7000 E2K Subcommittee Rules of Professional Conduct Meeting; 1:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Lawrence Hellman (405) 521-5440 or Gary Rife (405) 235-3800 19 OBA YLD Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Luke Gaither (918) 652-4402 21 Presidents Day (State Holiday) 22-25 OBA Bar Examinations; 8 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Board of Bar Examiners (405) 416-7075 24 Hudson-Hall-Wheaton Chapter of American Inns of Court; 5:30 p.m.; Fed. Bldg., 333 W. 4th Street, Tulsa; Contact: Leigh Reaves at Leigh_Reaves@oknd.uscourts.gov or visit our Web site at www.hudsonhallwheaton.com 28 OBA Member Services Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kenneth Felker (405) 842-7305 MARCH 2 Ginsburg Inn of Court; 5 p.m.; OCU School of Law, Oklahoma City; Contact: Julie Bates (405) 691-5080 OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Barbara Kinney (405) 522-1165 3 OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Chip Clark (405) 232-4271 The Oklahoma Bar Association s official Web site: www.okbar.org THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright 2005 Oklahoma Bar Association. The design of the scales and the Oklahoma Bar Association encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL, MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA 73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER: SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX 53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCI- ATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS. Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 417

DEAR FELLOW ABA MEMBER, YOUR VOTE: In the next few days, you will receive a ballot from the American Bar Association to vote for the next State Delegate from Oklahoma. Jim Sturdivant, who has so ably represented us for nine years, has been elected to the Board of Governors. I ask for your vote and your support for this important position. WHAT: Among other things, the State Delegate sits on the Nominating Committee of the ABA which effectively chooses the senior leadership and hence the vision and the direction of the ABA. ABA CHALLENGES: Over the next several years, the ABA is going to have to come to grips with substantial financial, membership, and mission issues. It is a time of great responsibility and even greater opportunity. We must be willing to confront the status quo with a clear vision of our future. WHY: We must be certain that the ABA is everything that it can be. Its role is critical to our legal system. It is the central "think tank" for our profession's self government and the independence of both the bench and the bar. It is an essential component in the selection of Federal judges. The Sections provide invaluable resources in virtually every area of the law and practice. They complement, but do not compete with, state and local bars. Very importantly, the ABA is to many, if not most, the face of the American legal profession, both at home and abroad. MY QUALIFICATIONS: In addition to serving as President of the Oklahoma County and Oklahoma Bar Associations, I have been active in the ABA for thirty years. Six ABA Presidents have appointed me to serve on a Commission, Committee or Task Force of the ABA including the Commission on Research on the Future of the Profession and Chair of the Standing Committee on Solo and Small Firm Practitioners. I was one of the original members of the ABA's Computer Committee in 1980. The National Conference of Bar Presidents has elected me to serve on its governing Executive Council. I have also served as the ABA Delegate for the Oklahoma Bar Association and the Oklahoma County Bar Association. I am ready, willing, and able to serve you in this position. THANK YOU! Thank you for the leadership opportunities I have had in the past. Given the opportunity to serve in this important position, I promise you my continued best efforts to meaningfully contribute to this important mission and to energetically represent the lawyers of Oklahoma. M. Joe Crosthwait Jr. (405) 733-1683 Joe.Crosthwait@LawOklahoma.com 418 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

THEME MENTAL HEALTH EDITOR: RENÉE HILDEBRANT contents Feb. 12, 2005 Vol. 76 No. 6 DEPARTMENTS 465 FROM THE PRESIDENT 466 FROM THE EXECUTIVE DIRECTOR 467 LAW PRACTICE TIPS 471 ETHICS/PROFESSIONAL RESPONSIBILITY 473 OBA BOARD OF GOVERNORS ACTIONS 475 OKLAHOMA BAR FOUNDATION NEWS 480 ACCESS TO JUSTICE 482 YOUNG LAWYERS DIVISION 484 CALENDAR 487 FOR YOUR INFORMATION 489 BENCH AND BAR BRIEFS 492 IN MEMORIAM pg. 421 INVOLUNTARY COMMITMENT PROCESS 472 EDITORIAL CALENDAR 496 THE BACK PAGE pg. 463 LEGISLATIVE AGENDA PLUS 447 CAN A BUYER AND SECURED PARTY RELY ON A CERTIFICATE OF TITLE? PART II FEATURES 421 UNDERSTANDING THE CIVIL INVOLUNTARY COMMITMENT PROCESS 461 MY FRIEND MY ENEMY 463 2005 OBA LEGISLATIVE AGENDA 464 OBA NOMINATING PETITIONS 429 EMERGENCY DETENTION AND CIVIL COMMITMENT OF CHILDREN IN OKLAHOMA 437 FILLING THE GAPS IN OKLAHOMA S CRIMINAL TREAT UNTIL COMPETENT STATUTES pg. 461 MY FRIEND MY ENEMY Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 419

420 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

MENTAL Health Understanding the Civil Involuntary Commitment Process By D. Renée Hildebrant Attorneys and mental health professionals in Oklahoma often refer to the civil commitment of a mentally ill person as an EOD. However, as this article will explain, there is no such thing as EOD. Oklahoma s process for civil commitment of mentally ill persons requiring treatment is set forth in the Mental Health Law located in 43A O.S. 1-101 et seq. There are typically three stages to the civil commitment process. The first stage is protective custody. 1 The second stage is emergency detention. 2 The final stage is the involuntary commitment hearing. 3 This article will outline each of those stages as they relate to the involuntary commitment of adults. Prior to reviewing the stages of the involuntary commitment process, it is important to realize the reason for the involuntary commitment of mentally ill persons is only to protect that person or others from harm that may come from not confining the mentally ill person requiring treatment. Not all persons with a mental illness are subject to involuntary civil commitment. If a mentally ill person is not a person requiring treatment as defined by Oklahoma Statutes, that person cannot be committed involuntarily. 4 A person requiring treatment is a person who poses a risk of harm (danger) to self or others as a result of a mental illness or drug or alcohol dependency. 5 A mental illness is a substantial disorder of thought, mood, perception, psychological orientation or memory that significantly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life. 6 Risk of harm to self or others is also defined by statute. 7 PROTECTIVE CUSTODY Protective custody occurs when a law enforcement officer detains a person the officer reasonably believes is a person requiring treatment and requests that a licensed mental health professional ( LMHP ) conduct an emergency examination. 8 This typically occurs when a family member or other person calls law enforcement and advises them that a person they believe to be mentally ill is threatening suicide or threatening to harm someone else. The police officer will then ask some questions to determine if he or she believes the person should be taken into custody. If the police officer reasonably believes the person should be taken into protective custody, he must either obtain a third party statement from Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 421

the person or persons who observed the dangerous behavior of the individual or fill out a peace officer s affidavit setting forth what he personally observed. 9 Once a person is taken into protective custody, he must be transported by law enforcement to a facility designated by the Commissioner of Mental Health and Substance Abuse Services as appropriate for an emergency examination. 10 A list of designated facilities can be found in the Manual for Emergency Detention and Civil Commitment in Oklahoma published by the Oklahoma Department of Mental Health and Substance Abuse Services. Once at the designated facility, an LMHP must conduct an emergency examina- tion. 11 This emergency examination must take place within 12 hours of the time law enforcement first took the person into protective custody. 12 If the examination is not conducted within the 12-hour period, the person must be released and returned by law enforcement to the place where he was taken into protective custody, to his residence or to another location. 13 The initial examination by the LMHP is to determine if the person brought to the facility by law enforcement appears to the mental health professional to be a person requiring treatment such that emergency detention is warranted. 14 If after the initial examination the mental health professional does not believe the person is a danger to self or others as the result of a mental illness, the person must be released and returned by law enforcement to the place where he was taken into protective custody, to his residence or to another location. 15 However, if after the emergency examination, the LMHP believes the person is a danger to self or others as the result of a mental illness, If after the initial examination the mental health professional does not believe the person is a danger to self or others the person must be placed in emergency detention. 16 If the facility at which the emergency examination was conducted is not a facility designated by the Commissioner of Mental Health and Substance Abuse Services, law enforcement must transport the person to such a facility. 17 At this point, there is still no court order in place or required. EMERGENCY DETENTION The person who was originally taken into protective custody by law enforcement is no longer in protective custody at this point. The person is now in emergency detention. Or, as the folks in the mental health profession say, the person was ED d. Again, because there still has not been a court order, this is not an EOD. There is no such thing as an emergency order of detention. There has still been no court involvement in the process at this point. At this point, the person who is now in emergency detention has the right to contact a relative, a friend or an attorney. 18 However, the facility at which the person is being held cannot call anyone and notify them the person is in emergency detention unless the person signs a consent for release of information allowing such a disclosure. 19 A person can be held in emergency detention (ED) status for up to 72 hours, exclusive of weekends and holidays, without a court order. 20 During that 72-hour period, two LMHPs must conduct a full examination and evaluation to determine if the person is a person requiring treatment, i.e. a danger to self or others because of a mental illness. 21 One of these LMHPs must be a psychiatrist, a psychologist or a physician with specific mental health training. 22 422 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

If after the full examination and evaluation the two LMHPs determine the person does not need treatment beyond the 72-hour emergency detention period, the person is to be released. 23 The person is to be returned by law enforcement to the place where he was taken into protective custody, to his home or to an alternate facility. 24 If the person resides in a group home or nursing home, that facility cannot refuse the return of the individual. 25 If after the full examination the two LMHPs determine the person does need treatment beyond the 72-hour period, court involvement is required. 26 At this point, a petition for involuntary commitment should be filed unless the person agrees to voluntary commitment. 27 Accompanying the petition for involuntary commitment must be a certificate of evaluation signed by both LMHPs. 28 If only one of the LMHPs believes that additional treatment beyond the 72-hour period is required, that LMHP may file a petition for involuntary commitment. 29 However, there will be no certificate of evaluation attached. At that point the court must decide whether to order another evaluation or proceed to hearing without the certificate of evaluation. INVOLUNTARY CIVIL COMMITMENT treatment The petition for involuntary commitment will generally be filed by the director, or designee, of the facility in which the person was held in emergency detention. 30 The director or designee may also request the district attorney file the petition. 31 In addition to the district attorney or emergency facility director, the petition can be filed by a LMHP, certain relatives, administrators of hospitals licensed by the Joint Commission on Accreditation of Healthcare Organizations, the head of a correctional Once the petition for involuntary commitment is filed, the court must conduct a hearing to determine if involuntary is required facility or a peace officer where the person lives or was taken into protective custody. 32 The petition for involuntary commitment must be sworn to under oath by the person filing it. 33 If the petition is filed prior to a full examination and evaluation being conducted by two LMHPs, the court will order such an examination to take place before hearing the petition. 34 This evaluation will be conducted on an outpatient basis unless otherwise ordered by the court. 35 The petition can be filed in the county where the person resides, the county where the person was taken into protective custody or the county where the person is being held in emergency detention. 36 The person who is the subject of the petition for involuntary commitment is entitled to legal representation. 37 If the person does not have a private attorney, a public defender or court-appointed attorney must represent him. 38 The attorney appointed to represent the person who is the subject of the involuntary commitment petition must meet with him within one day of notification and must provide the person with a statement of his rights. 39 Once the petition for involuntary commitment is filed, the court must conduct a hearing to determine if involuntary treatment is required. 40 The hearing must be conducted within the 72-hour emergency detention period or the person must be discharged unless a pre-hearing detention order is entered prior to the end of the 72-hour period. 41 The reason for a court order at this point is that any further detention beyond the 72-hour period without such an order is considered a violation of the person s constitutional rights. However, before the court orders pre-hearing detention, it must determine if there is probable cause to detain the person until a hearing Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 423

on the issue of involuntary commitment can be conducted. 42 To make this determination, the court should review the certificate of evaluation completed by the two LMHPs. If the court does not believe there is probable cause to issue a pre-hearing detention order, the request for such an order should be denied and the person returned to the place where he was taken into protective custody. 43 The petition must contain a statement of the facts that the petitioner alleges are the basis for involuntary commitment. 44 It must show that the person is a danger to self or others as a result of mental illness. The petition, along with notice of the date, time and place of the hearing for involuntary commitment, must be served on the person who is the subject of the petition at least one day prior to the hearing. 45 In addition, the person who is the subject of the petition must receive a copy of the LMHPs certificate of evaluation, the third party statement or peace officer s affidavit and the pre-hearing detention order. 46 The person delivering these documents must explain them to the person who is the subject of the petition and must advise him of his habeas corpus rights. 47 The person s attorney and the facility in which the person is being held in emergency detention must also receive copies of these items. 48 The notice of hearing must include the definitions of mental illness and person requiring treatment as set forth in 43A O.S. 1-103. 49 Additionally, the notice must contain the following: a statement that the person has a right to request a jury trial, a statement that the petitioner may present witnesses at the hearing and the person who is the subject of the petition has a right to cross-examine those witnesses, notification that counsel has been appointed by the court and will be paid for if the person is indigent, that if the person is found to be a person requiring treatment the court will hear further evidence as to the competency of the person to refuse medication. 50 Additionally, if an examination was not conducted prior to the filing of the petition and the The notice of hearing must include the definitions of mental illness court has ordered such an evaluation, the notice must advise the person of such order of evaluation. 51 The hearing on the petition should be closed to the public and may be conducted at the facility in which the person is being detained. 52 Of course, the person who is the subject of the petition has the right to be present and to call witnesses. 53 The person may also be called as a witness himself. 54 However, nothing the person says at the hearing can be used for any purpose except the proceeding to determine if involuntary commitment is appropriate. 55 Indeed, the statute is incredibly clear that: No such statement, admission or confession may be used against such person in any criminal action whether pending at the time the hearing is held or filed against such person at any later time directly or in any manner or form. 56 If a district attorney represents a state-operated mental health facility in an involuntary commitment proceeding against an individual and later prosecutes that same individual, the district attorney must use extreme caution not to bring in any information learned from the individual at the mental health hearing. If the attorney does not follow this rule, he is not only ignoring the law, he is violating the individual s rights. If the hearing is in front of the judge, the LMHPs do not have to be present. Rather, the judge can act upon the affidavits of the LMHPs who evaluated the person and prepared the certificate of evaluation. 57 However, if a jury trial is demanded, those persons must be present at the hearing as they are subject to crossexamination by the attorney for the person who is the subject of the petition for involuntary commitment. 58 Once the hearing is concluded, the judge is required to determine by clear and convincing evidence whether the person has a mental illness and whether the person is a person requiring treatment. 59 Once he has reached a 424 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

decision, the judge must enter an order outlining his ruling in the case. 60 If the judge determines the person is not a person requiring treatment, the judge shall dismiss the petition and order the person discharged from detention. 61 If the judge determines the person is a person requiring treatment, the judge must determine if inpatient treatment is the least restrictive alternative. 62 Indeed, the judge may not order inpatient treatment without a thorough consideration of available treatment alternatives. 63 If the judge finds that treatment other than inpatient treatment is appropriate, the judge may order the patient to receive whatever treatment, such as outpatient treatment on a regular basis, as the court finds appropriate. 64 During the time the person is receiving alternative treatment, the court retains jurisdiction over the individual. 65 If the judge finds that there is no less restrictive treatment which is appropriate, the judge must order the person committed to the custody of the Department of Mental Health and Substance Abuse Services or a private facility that is willing to accept the person for treatment. 66 Once the person has been involuntarily committed, treatment must begin Once the court has determined that inpatient treatment is necessary, the court must then make a finding as to the person s competency to consent to or refuse the treatment ordered, including the person s ability to refuse medication. 67 If the judge determines that the person is not competent to refuse medication, the order should reflect such a finding. Once the person has been involuntarily committed, treatment must begin. The goal of involuntary commitment is not to lock up a person but to ensure he gets treatment. Thus, once treatment is successful and the person is no longer a danger to self or others as a result of a mental illness, the person must be discharged. Within 48 hours after discharge, the court is to be notified of such discharge so that it can close its file. Prior law required notification prior to discharge. However, because a person cannot be lawfully confined if he is not a person requiring treatment, it made no sense to notify the court in advance of the release as the court cannot order further detention without violating the person s constitutional right to liberty. CONCLUSION This is a very brief overview of the civil commitment process for adults in Oklahoma. As indicated previously, the Oklahoma Department of Mental Health and Substance Abuse Services publishes a Manual for Emergency Detention and Civil Commitment in Oklahoma. A copy of that manual can be obtained free of charge from the department or can be downloaded from its Web site at www.odmhsas.org. It is recommended that any attorney involved with any stage of the civil commitment process obtain a copy of that manual, which goes into much more detail than this article. 1. 43A O.S. 5-207. 2. 43A O.S. 5-208. 3. 43A O.S. 5-410 et seq. 4. 43A O.S. 5-208, 5-415. 5. 43A O.S. 1-103 (13). 6. 43A O.S. 1-103 (3). 7. 43A O.S. 1-103 (18). 8. 43A O.S. 5-207. 9. 43A O.S. 5-207. 10.. 43A O.S. 5-707(D) 11. Id. and 43A O.S. 5-208. 12. 43A O.S. 5-208(A)(1). 13. 43A O.S. 5-208. 14. Id. 15. 43A O.S. 5-208(A)(2). 16. 43A O.S. 5-208(A)(3). 17. 43A O.S. 5-207(D). 18. 43A O.S. 5-201. 19. 43A O.S. 1-109. 20. 43A O.S. 5-208(A)(3). 21. 43A O.S. 5-208(A)(4). 22. 43A O.S. 5-414. 23. 43A O.S. 5-208(C). 24. Id. 25. 43A O.S. 5-208(A)(2). 26. 43A O.S. 5-208(D). 27. 43A O.S. 5-208(C). 28. 43A O.S. 5-410(B)(3). 29. 43A O.S. 5-410(A)(2). 30. 43A O.S. 5-208(D). 31. Id. 32. 43A O.S. 5-410. 33. 43A O.S. 410(B)(1). 34. 43A O.S. 5-414(A). 35. 43A O.S. 5-414(A)(1). 36. 43A O.S. 1-107. 37. 43A O.S. 5-411(A)(2). 38. Id. 39. 43A O.S. 5-411(D)(1). 40. 43A O.S. 5-415(A). 41. 43A O.S. 5-413(A). 42. 43A O.S. 5-413(C)(2). 43. 43A O.S. 5-413(B). 44. 43A O.S. 5-410. 45. 43A O.S. 5-412(A). 46. Id. 47. 43A O.S. 5-412 (C). 48. 43A O.S. 5-412(D). 49. 43A O.S. 5-412(B). Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 425

50. Id. 51. Id. 52. 43A O.S. 5-411(A)(3). 53. 43A O.S. 5-411 (A)(5) & (6). 54. 43A O.S. 5-415(B)(3). 55. 43A O.S. 5-411(C). 56. Id. 57. 43A O.S. 5-415(C)(2). 58. 43A O.S. 5-415(C)(3). 59. 43A I.S. 5-415(C). 60. 43A O.S. 5-415. 61. 43A O.S. 5-415(D). 62. 43A O.S. 5-415(E). 63. 43A O.S. 5-415(E)(1). 64. 43A O.S. 5-415(E)(2). 65. Id. and 43A O.S. 5-416(B). 66. 43A O.S. 5-415(E)(3). 67. 43A O.S. 5-416(A). ABOUT THE AUTHOR D. Renée Hildebrant is the trial court administrator for Oklahoma County. Prior to going to work for the Oklahoma County District Court, Ms. Hildebrant was deputy general counsel for the Department of Mental Health and Substance Abuse Services. She graduated from Oklahoma City University School of Law in 1994. She previously worked in civil litigation and has represented both plaintiffs and defendants. Ms. Hildebrant is a member of the Oklahoma Bar Journal Board of Editors and is on the Oklahoma Bar Foundation Board of Trustees. OBA member discount: Get a $100 discount by using the OBA Program Promotor Discount Code of PP01. 426 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

Law Office Management & Technology Section Spring Retreat March 4-6, 2005 The Bunkhouse at Western Hills Guest Ranch, Wagoner 3 hours of free CLE Every two years, the section holds a planning/social retreat for our members. This year the retreat will be held at the Western Hills Guest Ranch located near scenic Wagoner in Eastern Oklahoma. We have reserved the Bunkhouse for our gathering. We will have a great time together and invite all to attend. The cost will be $50 for section members and non-members. Advanced registration is necessary. For more information and to register contact: Donna Lynn Dirickson, ddirick@swbell.net, (580) 772-3207 or John Brewer, johnb@jnbrewer.com (405) 606-8424 Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 427

428 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

MENTAL Health Emergency Detention and Civil Commitment of Children in Oklahoma By Dewayne Moore and Durand Crosby In 2003, the Oklahoma Legislature made significant changes to the laws pertaining to the treatment of children suffering from mental illness. These changes were spurred primarily by two goals. First, the Legislature streamlined the process and made it similar to the civil commitment process for adults. Second, the Minor s Mental Health Act was amended so that children who were in the state s custody would be treated the same as those who were not. This article summarizes the emergency detention and civil commitment process for minors in Oklahoma. GENERAL A minor may be admitted to a facility for inpatient mental health treatment on a voluntary or involuntary basis only if the minor meets the definition of a minor in need of treatment. A minor in need of treatment means a minor who either has: 1. A demonstrable mental illness or who is drug or alcohol dependent and as a result of that mental illness or dependency can be expected within the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person, and has engaged in one or more recent overt acts or made significant recent threats which substantially support that expectation; or 2. A demonstrable mental illness or is alcohol or drug dependent of sufficient severity to cause substantial impairment or disability in at least two of the following major areas of functioning in the child s life: a. family relations, b. school performance, c. social interactions, d. ability to perform independently the basic tasks of personal hygiene, hydration and nutrition 1 or e. self-protection. 2 A minor in need of treatment does not mean a minor afflicted with epilepsy, a developmental disability, organic brain syndrome, physical handicaps, brief periods of intoxication caused by such substances as alcohol or drugs or who is truant or sexually active unless the minor also meets the criteria for a minor in need of treatment. 3 VOLUNTARY ADMISSION FOR MINORS UNDER 16 Upon application of a parent, 4 a minor who is under the age of 16 may be admitted to a mental health or substance abuse facility will- Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 429

ing to accept the minor as long as it is determined that the minor meets inpatient criteria. 5 The consent of the minor is not necessary if the minor is under the age of 16. 6 Following the application of the parent, a medical necessity review must be conducted by a licensed mental health professional. 7 A medical necessity review is an assessment of current or recent behaviors and symptoms to determine whether an admission for inpatient treatment or evaluation is the least restrictive level of care necessary. 8 The medical necessity review may occur on either an inpatient or outpatient basis. If the licensed mental health professional determines and states in writing that there is cause to believe that the minor is a minor in need of treatment, a mental health evaluation is then conducted. The mental health evaluation must also be conducted by a licensed mental health professional. The minor may only be admitted for inpatient care if the licensed mental health professional states in writing that the minor is a minor in need of treatment and: The minor and consenting parent must also be informed 1. the minor appears to have a mental illness or alcohol or drug dependency serious enough to warrant inpatient treatment and is reasonably likely to benefit from the treatment, 2. the minor is provided with a clinically appropriate explanation of the nature and purpose of the treatment, and 3. based upon the following, inpatient treatment is determined to be the least restrictive alternative that meets the needs of the minor: a. reasonable efforts have been made to provide for the treatment needs of the minor through the provision of less restrictive alternatives, and such alternatives have failed to meet the treatment needs of the minor, or b. after thorough consideration of less restrictive alternatives to inpatient treatment, the condition of the minor is such that less restrictive alternatives are unlikely to meet the treatment needs of the minor. 9 A copy of the written findings of the evaluation must be provided to the consenting parent, and the parent must be given the opportunity to discuss the findings with the licensed mental health professional conducting the evaluation. 10 The determinations and written statements of the evaluation are made a part of the minor s medical record upon admission. 11 The minor and consenting parent must also be informed in writing within five days of the minor s 16th birthday by the director of the facility that the minor may object to continued voluntary treatment after he or she turns 16. 12 Should the minor object to continued treatment, the facility must discharge the minor within 48 hours unless the district attorney is requested to file a petition alleging the minor to be a minor in need of treatment. 13 The Commissioner of Mental Health and Substance Abuse Services has prescribed forms for use in the emergency detention and civil commitment process. These can be found as part of the department s Emergency Detention manual, which is located on the department s Web site at www.odmhsas.org. Hard copies may be requested by contact ODMHSAS Resource Center, Shepherd Mall, Suite 82, Oklahoma City, OK 73107, (405) 522-3810. VOLUNTARY ADMISSION FOR MINORS AGE 16 AND OLDER Minors who are 16 years of age or older are given the right to object to inpatient treatment. Therefore, in order for a 16- or 17-year-old to receive voluntary inpatient treatment, a joint application and consent 14 of both the parent and minor is required. Following such a joint 430 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

application, a medical necessity review and evaluation must be conducted to determine whether inpatient treatment is appropriate. INVOLUNTARY ADMISSION Involuntary admissions are generally sought when: 1) a parent who originally applied for inpatient treatment of a minor later revokes his or her consent; 2) when a minor who is 16 years of age or older objects to inpatient treatment; or 3) when the state of Oklahoma has custody of a minor and is seeking inpatient treatment. 15 In such cases, a child may first be detained on an emergency basis for up to five days, excluding weekends or holidays, until a court determines whether inpatient treatment is necessary. 16 Once the minor is detained, he or she is evaluated by a licensed mental health professional Once the minor is detained, he or she is evaluated by a licensed mental health professional to determine whether the minor is a minor in need of treatment. If the licensed mental health professional determines the minor is not a minor in need of treatment, the minor must be immediately discharged. If the licensed mental health professional determines that the minor is a minor in need of treatment, the licensed mental health professional must submit a report to the district attorney within 48 hours, excluding weekends or holidays, of the detention or revocation of consent. 17 The report must include findings as to whether: 1. the minor appears to be a minor in need of treatment and is reasonably likely to benefit from the treatment, 2. the minor is provided with a clinically appropriate explanation of the nature and purpose of the treatment, and 3. based upon the following, inpatient treatment is determined to be the least restrictive alternative that meets the needs of the minor: a. reasonable efforts have been made to provide for the treatment needs of the minor through the provision of less restrictive alternatives, and such alternatives have failed to meet the treatment needs of the minor, or b. after thorough consideration of less restrictive alternatives to inpatient treatment, the condition of the minor is such that less restrictive alternatives are unlikely to meet the treatment needs of the minor. The district attorney then has three days to file a petition alleging that the minor is a minor in need of treatment. If the district attorney declines to file a petition, the minor must be discharged to the custody of his or her parent or to the agency having custody of the minor. If the district attorney files the petition, the petition must set forth the following: 1. the facts which bring the minor within the purview of the Inpatient Mental Health and Substance Abuse Treatment of Minors Act, 2. the name, age and residence of the minor, 3. the names and residences of the minor s parents, 4. if applicable, the name and residence of the minor s legal guardian, 5. the name and residence of the person or persons having custody or control of the minor, 6. the name and residence of the nearest known relative, if no parent or guardian can be found, 7. the relief requested and 8. an endorsement of witnesses intended to be called. 18 A report of the licensed mental health professional should also be attached to the petition. If the minor has been admitted to a facility, the facility must make sure that a proposed individual treatment plan for the minor is prepared and submitted to the court Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 431

at least 24 hours prior to the time set for the hearing. After the petition is filed, the court will appoint an attorney to represent the minor if the minor is not represented by counsel. The attorney appointed must consult with the minor at least 24 hours prior to the date set for hearing the petition. In addition, the court may also appoint a guardian ad litem as provided by Section 7003-3.7 of Title 10 of the Oklahoma Statutes. The court will also set a date for a hearing on the petition. The hearing date cannot be less than one day, or more than three days, excluding weekends and legal holidays, from the date the petition was filed. However, the attorney for the minor may request that the date of the hearing be extended once for up to an additional three days, excluding weekends and holidays. If the date of the hearing is more than five days after the minor was detained on an emergency basis, the court may enter a prehearing detention order authorizing the facility to hold the minor until the hearing date. The court must ensure that notice of the date, time, place and purpose of the hearing is given to the petitioner, the minor, the parent, parents or legal guardian of the minor, and the person in charge of the mental health or substance abuse treatment facility detaining the minor. If the minor is a ward of the court, or is in the custody of the Department of Human Services or the Office of Juvenile Affairs, notice must also be given to a public or private child care agency having legal custody of the minor, if any, or to the person at the Department of Human Services, the Office of Juvenile Affairs or the applicable juvenile bureau responsible for the supervision of the case. Notice must be given at least 24 hours prior to the date set for the hearing in such manner as directed by the court. Hearings Hearings are closed to the public unless otherwise ordered by the judge. 19 However, persons having a direct interest in the case will be The minor has a right to demand a trial by jury admitted. The minor has a right to remain silent during the hearings. 20 No statement, admission or confession made by the minor may be used against the minor for any purpose except for proceedings pursuant to the Inpatient Mental Health and Substance Abuse Treatment of Minors Act. The decision to determine a minor to be a minor in need of treatment must be based on sworn testimony, and the minor must have the opportunity for cross-examination unless the facts are stipulated. Where the facts are stipulated, the judge must ascertain from the minor if the minor agrees with the stipulation and understands the consequences of stipulating to the facts. The minor has the right to demand a trial by jury, which will consist of six persons. The court cannot commit a minor to a facility for inpatient treatment unless the court determines by clear and convincing evidence the following: 1. The minor has a demonstrable mental illness or is drug or alcohol dependent and, as a result of that mental illness or drug or alcohol dependence, can be expected within the near future to inflict or attempt to inflict serious bodily harm to himself or another person if services are not provided, and the minor has engaged in one or more recent overt acts or made significant recent threats which substantially support that expectation; or 2. That all reasonable efforts have been made to provide for the treatment needs of the minor through the provision of less restrictive alternatives to inpatient treatment and that such alternatives have failed to meet the treatment needs of the minor; or 3. After a thorough consideration of less restrictive alternatives to inpatient treatment, that the condition of the minor is such that less restrictive alternatives are unlikely to meet the treatment needs of the minor; and 432 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005

4. There are no comparably effective services available to the minor that are less physically intrusive or restrictive. 21 If the court finds that the minor is not a minor in need of treatment, the court shall dismiss the case and require that the minor be discharged. If the court determines that the minor is a minor in need of treatment, but does not require inpatient treatment, the court may order treatment or services through a less restrictive alternative to inpatient mental health or substance abuse treatment. This may include ordering the minor to take medication as prescribed by a physician and, upon a finding that it is in the best interests of the minor, the court may order the parents or other adult persons living in the home of the minor to comply with reasonable conditions relating to the treatment of the minor. 22 If the court finds that the minor is a minor in need of treatment and requires inpatient treatment in a mental health or substance abuse treatment facility, the court will order the commitment of the minor to a mental health or substance abuse treatment facility for up to 30 days. The court will also order the custodian of the minor to make arrangements for the admission of the minor to a public or private mental health or substance abuse treatment facility appropriate for the inpatient care and treatment of minors that is willing to admit the minor for treatment. The court will further set the matter for review not more than 30 days from the date of commitment and shall continue to review the matter at intervals of not more than 30 days until the minor is discharged from inpatient treatment. 23 The facility must submit a report regarding the minor s progress and treatment and also make recommendations as to whether the minor needs inpatient care at least three days prior to the review hearing. 24 Transportation Issues Law enforcement is responsible for transporting individuals to and from designated sites. Law enforcement is responsible for transporting individuals to and from designated sites or facilities for the purpose of examination, emergency detention, protective custody and inpatient services. 25 Law enforcement is not required to transport persons that are voluntarily committing themselves to a mental health facility. Taking a person into protective custody and transporting them to a designated facility can become a fairly heavy burden on law enforcement. In order to help deflect some of the costs associated with this responsibility, law enforcement is entitled to be reimbursed by the Department of Mental Health and Substance Abuse Services for transportation of minors and adults that require examination, emergency detention, protective custody and inpatient services. 26 Reimbursement for transportation will be made in accordance with the provisions of the State Travel Reimbursement Act. 27 Individualized Treatment Plan Discharge Plan Within 10 days after the admission of a minor for inpatient treatment, the person in charge of the facility in which the minor is being treated shall ensure that an individualized treatment plan has been prepared by the person responsible for the treatment of the minor. 28 The minor shall be involved in the preparation of the treatment plan to the maximum extent consistent with the ability of the minor to understand and participate. The parent or legal custodian of the minor shall be involved to the maximum extent consistent with the treatment needs of the minor. 29 The minor shall be discharged from the facility when the minor no longer meets the admission or commitment criteria, as determined by appropriate medical staff review after such persons have examined the minor and reviewed reports submitted by facility staff familiar with the condition of the minor. If not previously discharged, a minor committed by a court for inpatient treatment shall be discharged upon the expiration of Vol. 76 No. 6 2/12/2005 The Oklahoma Bar Journal 433

a court order committing the minor for inpatient treatment or an order of the court directing the discharge of the minor. Prior to the discharge of the minor from inpatient treatment, a discharge plan for the minor shall be prepared and explained to the minor and the parent or legal custodian of the minor, or, if the minor is in the custody or under the supervision of the Department of Human Services, a juvenile bureau or the Office of Juvenile Affairs, a designated representative of the agency. The plan shall include but not be limited to: 1. The services required by the minor in the community to meet the minor s needs for treatment, education, housing, and physical care and safety; 2. Identification of the public or private agencies that will be involved in providing treatment and support to the minor; 3. Information regarding medication that should be prescribed to the minor; and 4. An appointment for follow-up outpatient treatment and medication management. 1. The determination regarding the minor s ability to independently perform the basic tasks described in sub-part d above must be based upon the age of the minor and reasonable and appropriate expectation of the abilities of a minor of such age to perform said tasks. 43A O.S 5-502(2). 2. Id. 3. Id. 4. For the purposes of this act, a parent is defined as: 1) the biological or adoptive parent who has legal custody of the minor, including either parent if custody is shared under joint decree or agreement; 2) a person judicially appointed as a legal guardian of the minor; or 3) a relative within the third degree of consanguinity who exercises the rights and responsibilities of legal custody by delegation from a parent, as provided by law. 5. 43A O.S. 5-505. 6. Id. (See also Parham v. J.R., 442 U.S. 584 (1979)). 7. Licensed mental heath professional is defined as a person who has received specific training for and is experienced in performing mental health therapeutic, diagnostic or counseling functions and is not related by blood or marriage to the person being examined or does not have any interest in the estate of the person being examined, and who is: a. a psychiatrist who is a diplomate of the American Board of Psychiatry and Neurology, b. clinical psychologist who is duly licensed to practice by the State Board of Examiners of Psychologists, c. a licensed professional counselor as defined in Section 1902 of Title 59 of the Oklahoma Statutes, d. a person licensed as a licensed social worker pursuant to the provisions of the Licensed Social Workers Act, Section 1250 et seq. of Title 59 of the Oklahoma Statutes, e. a licensed marital and family therapist as defined in Section 1925.2 of Title 59 of the Oklahoma Statutes, f. a Doctor of Medicine who is duly licensed to practice by the State Board of Medical Licensure and Supervision, or a Doctor of Osteopathy who is duly licensed to practice by the Oklahoma Board of Osteopathic Examiners, or a qualified examiner as defined in Section 1-103 of this title.; g. a licensed behavioral practitioner as defined in Section 1931 of Title 59 of the Oklahoma Statutes, or h. an advanced practice nurse as defined in Section 567.3a of Title 59 of the Oklahoma Statutes specializing in mental health. 5-502(8). 8. 43A O.S. 5-502(14). 9. 43A O.S. 5-505 (B)(2). 10. 43A O.S. 5-505(B)(4). 11. 43A O.S. 5-505(C). 12. 43A O.S. 5-505(E). 13. 43A O.S. 5-505(F). 14. Consent means the voluntary, express, and informed agreement to treatment in a mental health facility by a minor 16 years of age or older and by a parent having custody of the minor. 43A O.S. 5-502(3). 15. See 43A O.S. 5-506 and 5-507. 16. Id. 17. 43A O.S. 5-506(B) and 5-507(C). 18. 43A O.S. 5-509(C)(2). 19. 43A O.S. 5-511. 20. Id. 21. 43A O.S. 5-512. 22. 43A O.S. 5-512(D)(2). 23. 43A O.S. 5-512(E). 24. 43A O.S. 5-512(F). 25. 43A O.S. 1-110(A) 26. 43A O.S. 1-110(B) 27. 43A O.S. 1-110(C) 28. 43A O.S. 5-513. 29. If the minor is in the custody of the Department of Human Services or the Office of Juvenile Affairs, the designated representative of the applicable agency must be involved in treatment plan. ABOUT THE AUTHORS Dewayne Moore is a deputy general counsel for the Oklahoma Department of Mental Health and Substance Abuse Services. He graduated from the OU College of Law in 1994. Mr. Moore began his career as an assistant district attorney for Oklahoma County. He previously taught the legal block for the Oklahoma Council of Law Enforcement Education and Training and has trained law enforcement officers throughout Oklahoma and at the FBI academy in Quantico, Va. Durand Crosby is general counsel for the Oklahoma Department of Mental Health and Substance Abuse Services. He graduated from the OU College of Law in 1992. Mr. Crosby has drafted several legislative bills amending Oklahoma mental health law and has authored manuals and provides training concerning emergency detention, civil commitment, treatment for individuals incompetent to stand trial and confidentiality of mental health records. 434 The Oklahoma Bar Journal Vol. 76 No. 6 2/12/2005