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Focus on the Law: Mental Health Commitments

By Sharon Frankenberg,
Attorney at Law

“Commitment” is the common term used to describe the group of procedures for detaining or admitting someone who is mentally ill in Tennessee.  There are four basic procedures and they are covered in Tennessee Code, Title 33.  In summary, these procedures are as follows:

Voluntary Admission.  A person may apply for admission to a public or private facility for treatment of a mental illness or emotional disturbance if he or she is 16 years of age or older and has the capacity to make informed decisions;  if he or she is a parent, legal  custodian or guardian acting on behalf of a child;  a conservator appointed by the court expressly to apply for a person’s admission; a qualified mental health professional;  and attorney-in-fact acting under durable powers of attorney for health care.

Detention of Persons with Severe Impairments.  A person who is severely impaired may be detained up to 72 hours after two physicians have determined that the statutory requirements have been met.  “Severe impairment” means a condition in which an adult or emancipated child as a result of a mental illness or serious emotional disturbance is in danger of serious physical harm resulting from the person’s failure to provide for their own essential human needs of health or safety; or manifests severe deterioration in routine functioning; and is not receiving care essential for his or her health or safety.  If they need treatment beyond 72 hours, emergency involuntary commitment must be pursued.

Emergency Involuntary Commitment.  A person who poses an immediate substantial likelihood of serious harm because of mental illness or serious emotional disturbance may be involuntarily detained for roughly 20 days for emergency diagnosis, evaluation, and treatment. Two certificates of the need for treatment must be obtained from two physicians or designated professionals and then a court order must be obtained to detain the person for up to 5 days pending a probable cause hearing.  A person poses a “substantial likelihood of serious harm”  if they have threatened or attempted suicide or to inflict serious bodily harm on themselves;  if they have threatened or attempted homicide or other violent behavior;  if the person has placed others in reasonable fear of violent behavior and serious physical harm to them; or the person in unable to avoid serious impairment or injury from specific risks.   At the probable cause hearing, the court may order another 15 days based upon the court’s findings that there is a substantial likelihood that serious harm will occur unless the person is placed under involuntary treatment.  If they need further treatment, nonemergency involuntary commitment must be pursued.

Nonemergency Involuntary Commitment.  To initiate nonemergency commitment proceedings, someone must file a sworn complaint for commitment with the court accompanied by either two certificates of need for care or a sworn statement that the person has refused to be examined by a certifying professional.  If the person has refused to be examined, the court may find probable cause to issue an order to take the person into custody for up to 48 hours to be examined.  The court must hold a hearing within 20 days on the commitment complaint.  The defendant may demand a jury to hear this trial.  If the court, or jury if a jury is demanded, finds by clear, unequivocal, and convincing evidence that the person should be committed, the court will order the person committed to an appropriate facility.  Further, that person will have to be examined not less than every 6 months to see if they still need to be committed.

Many states have revised commitment laws to protect their citizens from perceived threats from mentally unstable individuals who may be found not guilty by a jury but likely to reoffend.  If a criminal defendant is acquitted of a charge on a verdict of not guilty by reason of insanity at the time of the commission of the crime, Tennessee Code Annotated Section 33-7-303(a) requires that the court order him or her diagnosed and evaluated on an outpatient basis.  If the charge was a felony offense against the person (such as, robbery, murder and rape) and the defendant is already detained at the time of the acquittal, the court may order that he or she remain detained to receive an outpatient evaluation to be completed within 30 days.  This evaluation serves to determine if the individual might be committable on a nonemergency involuntary basis.  The district attorney general is required to act consistently with the results of this evaluation to pursue commitment if there is a substantial likelihood of serious harm by that individual.

Obviously this article does not cover every issue which might arise.  You should always contact an experienced attorney to get advice and assistance with your unique situation.  My office number is (865) 539-2100.

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