Every living human being is equipped with the equivalent of an electrochemical supercomputer capable of operating your basic bodily functions such as respiration and digestion, operating heavy machinery like your automobile in rush-hour traffic and pondering inchoate problems like what to have for dinner (taking into account the current contents of your refrigerator and determining if you need to stop at the grocery store on your way home) all at the same time. It is no wonder that such a complex organ can be subject to a variety of physical and behavioral conditions that can cause it to produce unexpected results.

Unfortunately, mental health is an area of human life that is heavily loaded with stigma. The prevailing thought seems to be that any mental illness is the equivalent of absolute disability, even though we know of a great number of accomplished people, present and past, who have dealt with and managed bipolar disorder, depression and even schizophrenia. This is probably because there is so much that we do not know about mental health, and the little that we do know is vastly misunderstood. A person may be grappling with a mental health issue without even being aware they are doing so. There are few cures presently available, but there are many effective treatments that can lessen or eliminate the negative effects of mental illness. Again, just like any other medical condition, there is no way to get this relief if one does not first seek treatment.

It is not uncommon for those who should seek treatment for mental health issues to resist. This is not peculiar to the realm of mental health issues. The constitutional right to refuse medical care includes the right to refuse even life-saving measures, if intelligently and clearly expressed.¹ However, because mental health issues may impair a person’s ability to clearly determine if they wish to undertake medical care, it is possible in certain specific circumstances to legally require the person to submit to care.²

VOLUNTARY MENTAL HEALTH TREATMENT

The first and best way to help one who may be suffering from a mental health issue is to get them to agree to seek help voluntarily. One of the most common concerns among those who may need to seek mental health assistance is that they will somehow be determined to be “crazy,” and they will have their fundamental rights denied as a result. This fear is not entirely unfounded. Until recently, the black letter law held many provisions regarding “lunatics” and other pejorative terms for the mentally ill. Indeed, the now-defunct Title 35 of the Oklahoma Statutes continues to be titled “Insane and Feeble-Minded Persons,” which held the Lunacy Law of 1917 among others. The appropriate statutes regarding the care of the mentally ill have been relocated to Title 43A “Mental Illness.” Advancements have been made both in society and the law over recent years to treat those suffering from a mental illness with a much broader degree of respect.

In seeking to persuade one to seek mental health treatment, it may be helpful to show them that the federal HIPPA law prevents the sharing of mental health records with the same level of protection of any other medical records, but with one key exception. If a mental health provider believes a patient presents a serious and imminent threat to the health or safety of a person (including the patient) or the public, that provider may contact the appropriate individuals or law officials and inform them. The vast majority of people who have mental health issues are not violent and are in no danger of having such referral made. A person who is interested in maintaining their privacy would best accomplish this by voluntarily seeking mental health treatment, rather than allowing a condition to escalate.

FORCED MENTAL HEALTH TREATMENT/INVOLUNTARY COMMITTAL IN OKLAHOMA

The process to place a person involuntarily into mental health treatment is found at 43A O.S. §§5-410 et seq. In these proceedings, the district court will determine if the subject individual is a “person requiring treatment” and, if that determination is made, the least restrictive appropriate treatment required.

Typically, the process is begun as the result of some action on the part of the individual that causes those around them fear for the safety of the individual or other people and law enforcement is summoned to the scene. Any person who appears to be or states they are mentally ill to a degree that immediate emergency action is necessary may be taken into protective custody and detained by law enforcement personnel, also referred to as emergency detention.³

While in emergency detention, the individual must be evaluated within 12 hours by a mental health provider.⁴ The purpose of this evaluation is to determine if the individual should be held in emergency detention. While the individual is held in emergency detention, they retain the right to refuse medical treatment. An individual may be held in emergency detention for a period of five days or 120 hours, excluding weekends, unless a court order provides for a different time period pending a hearing.⁵

The legal process to require an individual to submit to mental health treatment is initiated by the filing of a verified petition for an order requiring treatment in the district court by one of a specified group of persons, which includes immediate members of the individual’s family.⁶ If the individual is being held in emergency detention, the court must be so notified along with the petition, along with a copy of the medical evaluation made while in detention.⁷

A request for pretrial detention may be included with the petition, regardless of whether the individual is presently in emergency detention. Pretrial detention will be ordered if the court finds that there is probable cause to detain the individual prior to a hearing on the petition.⁸ Upon such a finding, the court sets a hearing on the petition and the individual is ordered to be detained up to three days or 72 hours, excluding weekends, prior to the hearing.⁹ Absent such a finding, the individual is immediately released if in emergency detention.¹⁰ Pretrial detention may be extended by order of the court, including any orders for continuances of the hearing.¹¹ The individual retains the right to refuse medical treatment during pretrial detention. Notice of the hearing must be provided at least one day prior to the hearing to the individual, the person who filed the petition, the individual’s attorney or court-appointed attorney, a treatment advocate or immediate family member of the individual and, if the individual is in emergency detention, the institution where the individual is being held.¹² At the hearing, the court hears evidence and makes findings of fact regarding the individual’s competency to consent to or refuse medical treatment, including medication.¹³

THE HEARING ON THE PETITION

By default, the hearing on the petition is a bench trial. If deemed necessary by the court or if demanded by the individual, a jury trial before a panel of six jurors is held on the petition, but a jury trial may delay the proceedings an additional five days.¹⁴

At the hearing, the court is required to determine if the individual is a “person requiring treatment” by clear and convincing evidence.¹⁵ A “person requiring treatment” is defined as a person who because of their mental illness or drug or alcohol dependency: 1) poses a substantial risk of immediate physical harm to self as manifested by evidence or serious threats of or attempts at suicide or other significant self-inflicted bodily harm, 2) poses a substantial risk of immediate physical harm to another person or persons as manifested by evidence of violent behavior directed toward another person or persons, 3) has placed another person or persons in a reasonable fear of violent behavior directed towards such person or persons or serious physical harm to them as manifested by serious and immediate threats, 4) is in a condition of severe deterioration such that without immediate intervention, there exists a substantial risk that severe impairment or injury will result to the person or 5) poses a substantial risk of immediate serious physical injury to self or death as manifested by evidence that the person is unable to provide for and is not providing for their basic physical needs.¹⁶

It should be noted that the overarching requirement is the threat of physical harm, or actual physical harm, to the individual or another person. The mere fact that a person has mental processes that are impaired by reason of advanced years, dementia or Alzheimer’s disease, or is a person with an intellectual or developmental disability, a person with a seizure disorder, a person with a traumatic brain injury or a homeless person is expressly insufficient of themselves to sustain a finding that the individual is a person requiring treatment.¹⁷ Adult individuals have the “right to be foolish” and make decisions that are not in keeping with the mainstream of society. Unless their actions form some sort of threat of implied or actual harm to another individual or themselves, there is insufficient basis for a finding that the individual must submit to mental health treatment. In those situations where those near the individual fear that the individual may be incompetent but not violent, they may wish to consider whether obtaining guardianship over the person or the property of the individual is available or appropriate.

If the hearing is held as a bench trial, the court may receive as evidence and act upon the affidavits of the licensed mental health professionals who evaluated the person and the mental health evaluation itself.¹⁸ If the hearing is conducted as a jury trial, the petitioner and any witness on behalf of the petitioner are subject to cross-examination by the attorney for the person alleged to be a person requiring treatment.¹⁹ Likewise, in a jury trial, the person alleged to be a person requiring treatment may also be called as a witness and cross-examined.²⁰ If the individual is not found to be a person requiring treatment, the petition is dismissed and the individual is discharged from any detention.²¹

ORDERED TREATMENT AND CONTINUING JURISDICTION

If the individual is found to be a person requiring treatment by clear and convincing evidence, the court must next determine the least restrictive means of treatment consistent with the treatment needs of the individual and the safety of the individual and others.²² After reviewing the options available, the court may order the individual receive treatment other than hospitalization for a period of time set by the court²³ The court has continuing jurisdiction over the individual as a person requiring treatment during this treatment.

If the court determines that hospitalization is required, then custody of the individual is given to the Department of Mental Health and Substance Abuse Issues for placement in a facility.²⁴ The individual will remain hospitalized until such time as the person no longer requires treatment as determined by the executive director of the facility where the individual is placed.²⁵ The involuntary nature of the individual’s treatment is subject to review by the Department of Mental Health and Substance Abuse Issues every three months.²⁶ The individual, or the attorney for the individual, may request a court review of the order for treatment at any time to be heard within 30 days of the request for review.²⁷

COURT AND NICS RECORDS

Court records regarding these proceedings are not open to public inspection but are available to the individual and their authorized representatives, Department of Mental Health and Substance Abuse Issues personnel and people having a “legitimate interest” including bonded abstractors.²⁸

Court clerks are required to report when a court orders the involuntary commitment of a person due to mental illness to the Federal Bureau of Investigation or its successor agency for the sole purpose of inclusion in the National Instant Criminal Background Check System (NICS) database and to the Oklahoma State Bureau of Investigation.²⁹ Inclusion in the NICS database will cause the record of the involuntary commitment to prevent the individual from passing a background check necessary for the legal purchase of a firearm. It should be noted that anything short of involuntary commitment will not be referred for inclusion in the state of Oklahoma. Other states may use a different standard.

CONCLUSION

The recent COVID-19 crisis has created massive disruptions in our society and will no doubt give rise to expanded mental health concerns in the general public. Anyone concerned about the mental health of another should seek to open a dialogue with that person, encouraging them to seek mental health treatment. Of course, any threat of harm to others or the individual themselves should be treated as credible and law enforcement should be immediately informed.

A person who voluntarily receives mental health treatment can avoid being “adjudicated mentally defective” or being “committed to a mental institution,” either of which designations may have a detrimental effect in the future. Their treatment records are protected by HIPPA. Merely receiving mental health services is not enough under Oklahoma law to merit inclusion in the NICS database. While there is no “black letter” law to this effect, one can argue that an individual who seeks out necessary mental health services displays enhanced responsibility and stability, despite their mental illness.

ABOUT THE AUTHOR

John Wylie is a 1997 graduate of the OU College of Law. He is an of counsel attorney with Tombs Maxwell LLP, a firm dealing with issues involving tort settlements, estate planning, probates and guardianship issues across the Southwest.

---

Endnotes

1. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).
2. Washington v. Harper, 494 U.S. 210 (1990).
3. 43A O.S. §5-207(A).
4. 43A.O.S. §5-208(A).
5. 43A O.S. §5-208(A)(3).
6. A treatment advocate as defined in Section 1-109.1 of this title: 1) The father, mother, husband, wife, grandparent, brother, sister, guardian or child, over the age of 18 years, of an individual alleged to be a person requiring treatment; 2) A licensed mental health professional; 3) A person in charge of any correctional institution; 4) Any peace officer within the county in which the individual alleged to be a person requiring treatment resides or may be found; or 6) The district attorney in whose district the person resides or may be found. 43A O.S. §5-410(A).
7. 43A O.S. §5-410(B)(3).
8. 43A O.S. §5-413.
9. 43. O.S. §5-413(A).
10. Id.
11. 43A O.S. §5-413(A)(2).
12. 43A O.S. §5-412(B).
13. 43A O.S. §5-415(C).
14. 43A O.S. §5-415(B).
15. 43A O.S. §5-415(C).
16. 43A O.S. §1-103(13)(a).
17. 43 O.S. §1-103(13)(c).
18. 43 O.S. §5-415(C)(2).
19. 43 O.S. §5-415(C)(3).
20. Id.
21. 45 O.S. §5-415(D).
22. 45 O.S. §5-415(E).
23. 45 O.S. §5-415(E)(2).
24. 45 O.S. §5-415(E)(3).
25. 45 O.S. §5-415(E)(6).
26. 45.O.S. §5-420(A).
27. 45 O.S. §5-420(B).
28. 45 O.S. §5-415(F).
29. 21 O.S. §1290.27(A).

Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 7 (September 2020)