N.Y. Correction Law § 402: Commitment of incarcerated individuals with a mental illness

§ 402. Commitment of incarcerated individuals with a mental illness.

1. Whenever the physician of any correctional facility, any county

penitentiary, county jail or workhouse, any reformatory for women, or of

any other correctional institution, shall report in writing to the

superintendent that any person undergoing a sentence of imprisonment or

adjudicated to be a youthful offender or juvenile delinquent confined

therein has, in his or her opinion, a mental illness, such

superintendent shall apply to a judge of the county court or justice of

the supreme court in the county to cause an examination to be made of

such person by two examining physicians. Such physicians shall be

designated by the judge to whom the application is made. Each such

physician, if satisfied, after a personal examination, that such

incarcerated individual has a mental illness and in need of care and

treatment, shall make a certificate to such effect. Before making such

certificate, however, he or she shall consider alternative forms of care

and treatment available during confinement in such correctional

facility, penitentiary, jail, reformatory or correctional institution

that might be adequate to provide for such incarcerated individual's

needs without requiring hospitalization. If the examining physician

knows that the person he or she is examining has been under prior

treatment, he or she shall, insofar as possible, consult with the

physician or psychologist furnishing such prior treatment prior to

making his or her certificate.

2. In the city of New York, if the physician of a workhouse, city

prison, jail, penitentiary or reformatory reports in writing to the

superintendent of such institution that a prisoner confined therein,

serving a sentence of imprisonment, in his or her opinion has a mental

illness, the superintendent of said institution shall either transfer

said prisoner to Bellevue or Kings county hospital for observation as to

his or her mental condition by two examining physicians or shall secure

two examining physicians to make such examination in his institution.

Each such physician, if satisfied after a personal examination and

observation that the prisoner has a mental illness and in need of care

and treatment, shall make a certificate to such effect. Before making

such certificate, however, he or she shall consider alternative forms of

care and treatment available during confinement in such correctional

facility, penitentiary, jail, reformatory or correctional institution

that might be adequate to provide for such incarcerated individual's

needs without requiring hospitalization. If the examining physician

knows that the person he or she is examining has been under prior

treatment, he or she shall, insofar as possible, consult with the

physician or psychologist furnishing such prior treatment prior to

making his or her certificate.

3. Upon such certificates of the examining physicians being so made,

it shall be delivered to the superintendent who shall thereupon apply by

petition forthwith to a judge of the county court or justice of the

supreme court in the county, annexing such certificate to his or her

petition, for an order committing such incarcerated individual to a

hospital for persons with a mental illness. Upon every such application

for such an order of commitment, notice thereof in writing, of at least

five days, together with a copy of the petition, shall be served

personally upon the alleged person with a mental illness, and in

addition thereto such notice and a copy of the petition shall be served

upon either the wife, the husband, the father or mother or other nearest

relative of such alleged person with a mental illness, if there be any

such known relative within the state; and if not, such notice shall be

served upon any known friend of such alleged person with a mental

illness within the state. If there be no such known relative or friend

within the state, the giving of such notice shall be dispensed with, but

in such case the petition for the commitment shall recite the reasons

why service of such notice on a relative or friend of the alleged person

with a mental illness was dispensed with and, in such case, the order

for commitment shall recite why service of such a notice on a relative

or friend of the alleged person with a mental illness was dispensed

with. Copies of the notice, the petition and the certificates of the

examining physicians shall also be given the mental hygiene legal

service. The mental hygiene legal service shall inform the incarcerated

individual and, in proper cases, others interested in the incarcerated

individual's welfare, of the procedures for placement in a hospital and

of the incarcerated individual's right to have a hearing, to have

judicial review with a right to a jury trial, to be represented by

counsel and to seek an independent medical opinion. The mental hygiene

legal service shall have personal access to such incarcerated individual

for such purposes.

4. The judge to whom such application for the commitment of the

alleged person with a mental illness is made may, if no demand is made

for a hearing on behalf of the alleged person with a mental illness,

proceed forthwith on the return day of such notice to determine the

question of mental illness and, if satisfied that the alleged person

with a mental illness has a mental illness and in need of care and

treatment, may immediately issue an order for the commitment of such

alleged person with a mental illness to a hospital for a period not to

exceed six months from the date of the order.

5. Upon the demand for a hearing by any relative or near friend on

behalf of such alleged person with a mental illness, the judge shall, or

he may upon his own motion where there is no demand for a hearing, issue

an order directing the hearing of such application before him at a time

not more than five days from the date of such order, which shall be

served upon the parties interested in the application and upon such

other persons as the judge, in his discretion, may name. Upon such day

or upon such other day to which the proceedings shall be regularly

adjourned, he shall hear the testimony introduced by the parties and

shall examine the alleged person with a mental illness, if deemed

advisable in or out of court, and render a decision in writing as to

such person's mental illness and need for care and treatment. If such

judge cannot hear the application, he may, in his order directing the

hearing, name some referee who shall hear the testimony and report the

same forthwith, with his opinion thereon, to such judge, who shall, if

satisfied with such report, render his decision accordingly. If it be

determined that such person has a mental illness and in need of care and

treatment, the judge shall forthwith issue his order committing him to a

hospital for a period not to exceed six months from the date of the

order. Such superintendent shall thereupon cause such person with a

mental illness to be delivered to the director of the appropriate

hospital as designated by the commissioner of mental hygiene and such

person with a mental illness shall be received into such hospital and

retained there until he is determined to be no longer in need of care

and treatment by the director of such hospital or legally discharged or

for the period specified in the order of commitment or in any subsequent

order authorizing continued retention of such person in said hospital.

Such superintendent, before delivering said person with a mental

illness, shall see that he is bodily clean. If such judge shall refuse

to issue an order of commitment, he shall certify in writing his reasons

for such refusal.

6. When an order of commitment is made, such order and all papers in

the proceeding shall be presented to the director of the appropriate

hospital at the time when the person with a mental illness is delivered

to such institution and a copy of the order and of each such paper shall

be filed with the department of mental hygiene and also in the office of

the county clerk of the county wherein the court is located which made

the order of commitment. The judge shall order all such papers so filed

in the county clerk's office to be sealed and exhibited only to parties

to the proceedings, or someone properly interested, upon order of the

court.

7. The costs necessarily incurred in determining the question of

mental illness, including the fees of the medical examiners, shall be a

charge upon the state or the municipality, as the case may be, at whose

expense the institution is maintained, which has custody of the alleged

person with a mental illness at the time of the application for his

commitment to the hospital under the provisions of this section.

8. During the pendency of such proceeding the judge may forthwith

commit such alleged person with a mental illness to a hospital for

persons with a mental illness upon petition and the affidavit of two

examining physicians that the superintendent is not able to properly

care for such person at the institution where he is confined and that

such person is in immediate need of care and treatment. Any person so

committed shall be delivered to the director of the appropriate hospital

as designated in the rules and regulations of the department of mental

hygiene.

9. Except as provided in subdivision two of this section pertaining to

prisoners confined in the city of New York, an incarcerated individual

of a correctional facility or a county jail may be admitted on an

emergency basis to the Central New York Psychiatric Center upon the

certification by two examining physicians, including physicians employed

by the office of mental health and associated with the correctional

facility in which such incarcerated individual is confined, that the

incarcerated individual suffers from a mental illness which is likely to

result in serious harm to himself, herself or others as defined in

subdivision (a) of section 9.39 of the mental hygiene law. Any person so

committed shall be delivered by the superintendent within a twenty-four

hour period, to the director of the appropriate hospital as designated

in the rules and regulations of the office of mental health. Upon

delivery of such person to a hospital operated by the office of mental

health, a proceeding under this section shall immediately be commenced.

10. If the director of a hospital for persons with a mental illness

shall deem that the condition of such person with a mental illness

requires his further retention in a hospital he shall, during the period

of retention authorized by the last order of the court, apply to the

supreme court or county court in the county where such hospital is

located, for an order authorizing continued retention of such person

with a mental illness. The procedures for obtaining any order pursuant

to this subdivision shall be in accordance with the provisions of the

mental hygiene law for the retention of involuntary patients.

11. If a person with a mental illness whose commitment, retention or

continued retention has been authorized pursuant to this section, or any

relative or friend in his behalf, be dissatisfied with any such order,

he may, within thirty days after the making of any such order, obtain a

rehearing and a review of the proceedings already had and of such order,

upon a petition to a justice of the supreme court other than the judge

or justice presiding over the court making such order. Such justice

shall cause a jury to be summoned and shall try the question of the

mental illness and the need for care and treatment of the person so

committed or so authorized to be retained. Any such person with a mental

illness or the person applying on his behalf for such review may waive

the trial of the fact by a jury and consent in writing to trial of such

fact by the court. No such petition for the hearing and review shall be

made by anyone other than the person so committed or authorized to be

retained or the father, mother, husband, wife or child of such person,

unless the petitioner shall have first obtained the leave of the court

upon good cause shown. If the verdict of the jury, or the decision of

the court when jury trial has been waived, be that such person does not

have a mental illness, the justice shall order the removal of such

person from the hospital and such person shall forthwith be transferred

to a state correctional facility, or returned to the superintendent of

the institution from which he was received if such institution was not a

state correctional facility. Where the verdict of the jury, or the

decision of the court where a jury trial has been waived, be that such

person has a mental illness, the justice shall certify that fact and

make an order authorizing continued retention under the original order.

Proceedings under the order shall not be stayed pending an appeal

therefrom, except upon an order of a justice of the supreme court, and

made upon notice and after hearing, with provision made therein for such

temporary care and confinement of the alleged person with a mental

illness as may be deemed necessary.

12. The notice provided for herein shall be served by the sheriff of

the counties of the state of New York, in which case the charges of such

sheriff shall be a disbursement in such proceeding, or by registered

mail on all persons required to be served, except that the

superintendent of a correctional facility or the director of a hospital

for persons with a mental illness, or their designees, shall be

authorized to personally serve notice upon an alleged person with a

mental illness or a person with a mental illness, as provided in this

section.

13. Notwithstanding any provision of law to the contrary, when an

incarcerated individual is being examined in anticipation of his or her

conditional release, release to parole supervision, or when his or her

sentence to a term of imprisonment expires, the provisions of

subdivision one of section four hundred four of this article shall be

applicable and such commitment shall be effectuated in accordance with

the provisions of article nine or ten of the mental hygiene law, as

appropriate.