N.Y. Correction Law § 508: Removal of sick prisoners from jail

§ 508. Removal of sick prisoners from jail. 1. A sheriff, in his or

her discretion, may by written order permit incarcerated individuals

confined in a local correctional facility to receive medical diagnosis

and treatment in outside hospitals, upon the determination that such

outside treatment and diagnosis is necessary by reason of inadequate

facilities within the local correctional facility. Such incarcerated

individuals shall remain under the jurisdiction and in the custody of

said sheriff while in a hospital, other than a secure facility, as such

term is defined in paragraph b of subdivision two of this section, and

said sheriff shall enforce proper measures in each case to safely

maintain such jurisdiction and custody.

2. a. If a physician to a jail or in case of a vacancy a physician

acting as such and the warden or jailer certify in writing that a

prisoner confined in a jail, either in a civil cause or upon a criminal

charge, is in such a state of mental health that he or she is in need of

involuntary care and treatment and in their opinion should be removed to

a psychiatric hospital for treatment, the warden or jailer shall

immediately notify the director who shall have the responsibility for

providing treatment for such prisoner. If such director after

examination of the prisoner by an examining physician designated by him

or her shall determine that such prisoner is in need of involuntary care

and treatment, the director shall file an application for the

involuntary hospitalization of such prisoner pursuant to article nine of

the mental hygiene law in a hospital or secure facility, as defined in

paragraph b of this subdivision, operated by the office of mental health

or in the case of a prisoner confined in a jail in a city or county

which maintains or operates a general hospital containing a psychiatric

prison ward approved by the office of mental health to such prison ward

for care and treatment or to any other psychiatric hospital if such

prison ward is filled to capacity. Such application shall be supported

by the certificate of two physicians in accordance with the requirements

of section 9.27 of the mental hygiene law and thereupon such prisoner

shall be admitted forthwith to the hospital or secure facility in which

such application is filed, and the procedures of the mental hygiene law

governing the hospitalization of such prisoner. The jailer or warden

having custody of the prisoner shall deliver the prisoner to the

hospital or secure facility with which the director has filed the

application. If such jailer or warden shall certify that such prisoner

has a mental illness which is likely to result in serious harm to

himself, herself or others and for which care in a psychiatric hospital

is appropriate such jailer or warden shall effect the admission of such

prisoner to a hospital or secure facility forthwith in accordance with

the provisions of section 9.37 or 9.39 of the mental hygiene law and the

hospital shall admit such prisoner. Upon admission of the prisoner,

pursuant to section 9.37 or 9.39 of the mental hygiene law, the jailer

or warden shall notify the director, the prisoner's attorney, and his or

her family, where information about the family is available. While the

prisoner is in the hospital, other than a secure facility, he or she

shall remain in the custody under sufficient guard of the jailer or

warden in charge of the jail from which he or she came. When the

prisoner is in a secure facility, the jailer or warden may transfer

custody of the incarcerated individual to the commissioner of mental

health, pursuant to an agreement between such jailer or warden and such

commissioner. A prisoner admitted to a psychiatric hospital pursuant to

section 9.27, 9.37 or 9.39 of the mental hygiene law may be retained at

the hospital or secure facility pursuant to the provisions of the mental

hygiene law until he or she has improved sufficiently in his or her

mental illness so that hospitalization is no longer necessary or until

ordered by the court to be returned to the jail whichever comes first

and in either event, the prisoner shall thereupon be returned to jail.

The cost of the care and treatment of such prisoners in the hospital or

secure facility shall be defrayed in accordance with the provisions of

the mental hygiene law in such cases provided.

From the time of admission of a prisoner to a hospital under this

section the retention of such prisoner for care and treatment shall be

subject to the provisions for notice, hearing, review and judicial

approval of continued retention or transfer and continued retention

provided by article nine of the mental hygiene law for the admission and

retention of involuntary patients.

b. As used in this section, the following terms shall have the

following meanings:

(i) "Director" means (a) the director of a state hospital operated by

the department of mental hygiene, or (b) the director of a hospital

operated by any local government of the state that has been certified by

the commissioner of mental hygiene as having adequate facilities to

treat a person with a mental illness or (c) the director of community

mental health services or the designees of any of the foregoing. The

appropriate director to whom a jailer or warden shall certify the need

for involuntary care and treatment and who shall have the responsibility

for such care and treatment shall be determined in accordance with rules

jointly adopted by the judicial conference and the commissioner of

mental hygiene.

(ii) "Mental illness" shall mean an affliction with a mental disease

or mental condition which is manifested by a disorder or a disturbance

in behavior, feeling, thinking, or judgement to such an extent that the

person afflicted requires care and treatment.

(iii) "In need of involuntary care and treatment" shall mean that a

person has a mental illness for which care and treatment as a patient in

a hospital is essential to such person's welfare and whose judgement is

so impaired that he is unable to understand the need for such care and

treatment.

(iv) "Likelihood to result in serious harm" shall mean (1) substantial

risk of physical harm to himself as manifested by threats of or attempts

at suicide or serious bodily harm or other conduct demonstrating that he

is dangerous to himself or (2) a substantial risk of physical harm to

other persons as manifested by homicidal or other violent behavior by

which others are placed in reasonable fear or serious physical harm.

(v) "Secure facility" shall mean a facility operated or licensed by

the office of mental health that has been approved and designated by the

commissioner of mental health to receive and retain prisoners pursuant

to this section, based upon a determination by such commissioner that

the physical and internal security of the facility are sufficient to

protect the safety and security of staff and persons served by the

facility.

c. If at any time the hospital in which a prisoner is hospitalized

pursuant to this subdivision determines that the prisoner is not in such

state of mental health to be in need of involuntary care and treatment

the prisoner shall be returned to the jail forthwith.

d. If at any time the director of a hospital in which a prisoner is

hospitalized pursuant to this subdivision has reason to believe that the

prisoner may be an incapacitated defendant as defined in article seven

hundred thirty of the criminal procedure law he shall so notify the

court in which the criminal charges are pending and such court shall

thereupon issue an examination order pursuant to the provisions of

article seven hundred thirty of the criminal procedure law.

e. Nothing in this subdivision shall prevent the release of the

prisoner from custody where appropriate by recognizance, bail, or

otherwise as the court may direct.