Nebraska Mental Health Commitment Act …

1 I Nebraska Mental Health Board Self-Study Handbook In Compliance With: NEB. Rev. Stat. 71-916 206 Behavioral Health Services Chapter 8-00 Mental Health Board Training May 2011 Nebraska Mental Health Commitment Act Reference Manual 2011 In Compliance With: NEB. Rev. Stat. 71-916 Revised: January 2012 Division of Behavioral Health Nebraska Mental Health Commitment Act Reference Manual 2011 Page 1 of 187 i Nebraska DEPARTMENT OF Health & HUMAN SERVICES KERRY T. WINTERER CHIEF EXECUTIVE OFFICER SCOT L. ADAMS, DIRECTOR DIVISION OF BEHAVIORAL Health AA/ADA/EOE Nebraska Mental Health Commitment Act Reference Manual 2011 Page 2 of 187ii INTRODUCTION The Nebraska Mental Health Commitment Act serves a purpose in protecting those with a Mental illness who are not capable of caring for themselves in a safe manner.

2 It is a complicated law which if misused violates individuals civil rights. Undeniably, a Mental Health Commitment should only be enacted in situations when all other options have been exhausted. Under the leadership of the Department of Health and Human Services Division of Behavioral Health and the Regional Behavioral Health Authorities, Nebraska continues to decrease the number of individuals committed to Mental Health treatment. This is due to changes in the behavioral Health system that were implemented in 2004. These changes include community-based services such as crisis response services which are designed to therapeutically work with an individual experiencing a Mental Health crisis. Throughout the state, crisis response services are provided to individuals who are experiencing Mental Health crises by licensed Mental Health professionals.

3 In most cases, crisis response services are initiated by law enforcement and occur wherever the crisis is occurring. Recent data from the Division of Behavioral Health reports that when crisis response services were accessed, only 15% of individuals in a Mental Health crisis experienced an emergency protective custody hold. Whether having contact with a crisis response team or not, of all individuals who are placed in Emergency Protective Custody, only 11% went before a Mental Health Board for consideration of a Commitment to Mental Health treatment. This Reference Manual provides guidance for consumers, attorneys, judges, law enforcement, Mental Health professionals, court clerks, and advocacy organizations on how to appropriately utilize Nebraska s Mental Health Commitment Act.

4 The manual begins with an overview of the Act, followed by clinical information regarding Mental illness. In addition, guidance is given on determining dangerousness due to Mental illness or substance dependency. In Part 3, the manual describes the Mental Health Commitment Process. Relevant statutes are presented and then more description is provided to describe the role of the Mental Health Board in more detail. This process is presented in four stages: 1) Emergency Protective Custody and Mental Health Evaluation, 2) Mental Health Board Hearing, 3) Commitment to Treatment, and 4) Change in Treatment or Discharge. In conjunction with the Dangerous Sex Offender Commitment Act, the Mental Health Commitment Act is also utilized to commit individuals lawfully deemed sex offenders to sex offender treatment.

5 Part 4 of the manual describes that process. Finally, precedent-setting legal cases are presented in Part 5. The Division of Behavioral Health has created several forms for use by law enforcement, Mental Health professionals, and Mental Health Boards. Examples of these forms are found in the Appendix and are available on the Division s website at: Nebraska Mental Health Commitment Act Reference Manual 2011 Page 3 of 187iii ACKNOWLEDGEMENTS The January 2012 revision of the Nebraska Mental Health Commitment Act Reference Manual is funded through the US Department of Justice-Justice and Mental Health Collaboration Program grant. The Reference Manual builds upon previous versions of the manual. CURRENT CONTRIBUTORS INCLUDE: Susan Adams, MA, Division of Behavioral Health Carol Coussons de Reyes, Division of Behavioral Health Sarah Cox, MSW, Division of Behavioral Health Jim Harvey, LCSW, Division of Behavioral Health Paul Kaufmann, , , ABPP-CN, Department of Health and Human Services Attorney Vicki Maca, LMHP, LCSW, Division of Behavioral Health Mary O Hare, MEd, MPA, O Hare Professional Consultation Services Dan Powers, , Division of Behavioral Health Blaine Shaffer, , Chief Clinical Officer, Division of Behavioral Health PREVIOUS CONTRIBUTORS INCLUDE: Vicki B.

6 Blattert, , David Babcock, , Former Chief Legal Counsel, Nebraska Department of Health and Human Services Richard Fields*, , Fields & Associates, Atlanta, GA Elizabeth Fulton Howell, , Emory University, Atlanta, GA Sam Kaplan, J. D., Legal Counsel, Nebraska Department of Health and Human Services Alesia McKinlay, , ; Nebraska Advocacy Services *Richard A. Fields, received permission to use portions of training materials from Phillip J. Resnick, , Professor of Psychiatry and Director, Fellowship in Forensic Psychiatry at Case Western Reserve University. Nebraska Mental Health Commitment Act Reference Manual 2011 Page 4 of 187iv TABLE OF CONTENTS INTRODUCTION ..II ACKNOWLEDGEMENTS.

7 III PREFACE .. VII STIGMA IS A NICE WORD FOR DISCRIMINATION .. VII PREVENTION WORKS. TREATMENT IS EFFECTIVE. PEOPLE RECOVER.. IX TRAUMA-INFORMED ENVIRONMENTS .. XI PART 1. THE Nebraska Mental Health Commitment ACT OVERVIEW .. 1 PURPOSE OF Nebraska Mental Health Commitment ACT .. 1 POWERS, DUTIES, COMPENSATION OF Mental Health BOARDS .. 1 DEFINITIONS .. 2 NOTE .. 2 Mental Health BOARD TRAINING .. 2 Mental Health BOARD ROLES AND RESPONSIBILITIES .. 3 Mental Health Commitment PROCESS OVERVIEW .. 3 PART 2. CLINICAL OVERVIEW .. 8 Mental ILLNESS DIAGNOSIS .. 8 Mental Health PROFESSIONAL (MHP) CERTIFICATION .. 11 SUBSTANCE DEPENDENCE .. 12 CO-OCCURRING DISORDER (COD) .. 13 UNDERSTANDING DANGEROUSNESS DUE TO Mental ILLNESS OR SUBSTANCE 16 DETERMINING DANGEROUSNESS DUE TO Mental ILLNESS OR SUBSTANCE DEPENDENCE.

8 17 SUBSTANTIAL RISK OF SERIOUS HARM TO ANOTHER PERSON .. 19 SUBSTANTIAL RISK OF SERIOUS HARM TO SELF .. 21 FURTHER CONSIDERATIONS ON DETERMINING DANGEROUSNESS .. 25 RISK AND AGGRESSIVE BEHAVIOR ASSESSMENTS .. 26 DANGEROUS SEX OFFENDERS .. 26 PART 3. Mental Health Commitment PROCESS .. 28 EMERGENCY PROTECTIVE CUSTODY AND Mental Health EVALUATION .. 28 EMERGENCY PROTECTIVE CUSTODY (EPC) PROCESS .. 29 Mental Health BOARD PETITION, SUMMONS, HEARING .. 30 INDIVIDUAL PROCEDURAL RIGHTS .. 30 RIGHTS IN CUSTODY OR WHILE RECEIVING TREATMENT .. 33 DEVELOPMENTAL DISABILITIES COURT-ORDERED CUSTODY ACT .. 34 TRIBAL HOLD ORDERS/TRIBAL Commitment ORDERS .. 35 Mental Health BOARD HEARING .. 36 DETERMINATION OF LEAST RESTRICTIVE TREATMENT ALTERNATIVE.

9 37 ADDRESSING PERSONS BEFORE THE BOARD HEARING OCCURS .. 39 QUESTIONS TO BE ASKED AT A Mental Health BOARD HEARING .. 39 Nebraska Mental Health Commitment Act Reference Manual 2011 Page 5 of 187v Commitment TO 41 DETERMINATION OF Commitment .. 42 VOLUNTARY TREATMENT .. 43 OUTPATIENT TREATMENT Commitment .. 43 INPATIENT TREATMENT Commitment .. 44 TREATMENT ORDER APPEAL .. 45 DEVELOPMENT OF AN INDIVIDUALIZED TREATMENT PLAN .. 45 LINCOLN REGIONAL CENTER SERVICES .. 46 PROGRESS REPORTS .. 47 HANDGUN REGISTRATION REQUIREMENTS .. 47 CHANGE IN TREATMENT OR DISCHARGE .. 49 REVIEW HEARINGS .. 50 DISCHARGE FROM A REGIONAL CENTER OR TREATMENT FACILITY .. 50 INTERVENTION IN AN OUTPATIENT SETTING .. 51 POST RELEASE HEARINGS.

10 53 ESCAPE FROM TREATMENT 53 CHANGE IN TREATMENT ORDER .. 54 PART 4. SEX OFFENDER Commitment ACT .. 55 DANGEROUS SEX OFFENDER DEFINITION .. 55 CONVICTED SEX OFFENDERS .. 55 CIVIL Commitment OF DANGEROUS SEX OFFENDERS .. 56 EMERGENCY PROTECTIVE CUSTODY OF DANGEROUS SEX OFFENDERS .. 57 COMMUNITY 57 SEX OFFENDER REGISTRATION ACT .. 58 SEXUAL PREDATOR RESIDENCY RESTRICTION ACT .. 59 FISCAL RESPONSIBILITY OF 60 PART 5. PRECEDENT SETTING LEGAL CASES .. 61 NEW LAW CASES .. 62 PART 6. AFFIDAVIT OF COMPLETION OF TRAINING .. 64 APPENDIX A. Nebraska Mental Health Commitment ACT .. 66 APPENDIX B. Nebraska JUDICIAL AND REGIONAL BEHAVIORAL Health AUTHORITY MAPS .. 91 APPENDIX C. GLOSSARY OF TERMS .. 92 APPENDIX D.