36-540

36-540. Court options

A. If the court finds by clear and convincing evidence that the proposed patient,
as a result of mental disorder, is a danger to self, is a danger to others, is
persistently or acutely disabled or is gravely disabled and in need of treatment, and is
either unwilling or unable to accept voluntary treatment, the court shall order the
patient to undergo one of the following:

1. Treatment in a program of outpatient treatment.

2. Treatment in a program consisting of combined inpatient and outpatient
treatment.

3. Inpatient treatment in a mental health treatment agency, in a veterans
administration hospital pursuant to article 9 of this chapter, in the state hospital or
in a private hospital, if the private hospital agrees, subject to the limitations of
section 36-541.

B. The court shall consider all available and appropriate alternatives for the
treatment and care of the patient. The court shall order the least restrictive treatment
alternative available.

C. The court may order the proposed patient to undergo outpatient or combined
inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2 of this
section if the court:

1. Determines that all of the following apply:

(a) The patient does not require continuous inpatient hospitalization.

(b) The patient will be more appropriately treated in an outpatient treatment
program or in a combined inpatient and outpatient treatment program.

(d) The patient will not likely become dangerous or suffer more serious physical
harm or serious illness or further deterioration if the patient follows a prescribed
outpatient treatment plan.

2. Is presented with and approves a written treatment plan that conforms with the
requirements of section 36-540.01, subsection B. If the treatment plan presented to the
court pursuant to this subsection provides for supervision of the patient under court
order by a mental health agency that is other than the mental health agency that
petitioned or requested the county attorney to petition the court for treatment pursuant
to section 36-531, the treatment plan must be approved by the medical director of the
mental health agency that will supervise the treatment pursuant to subsection E of this
section.

D. An order to receive treatment pursuant to subsection A, paragraph 1 or 2 of this
section shall not exceed three hundred sixty-five days. The period of inpatient
treatment under a combined treatment order pursuant to subsection A, paragraph 2 of this
section shall not exceed the maximum period allowed for an order for inpatient treatment
pursuant to subsection F of this section.

E. If the court enters an order for treatment pursuant to subsection A, paragraph 1
or 2 of this section, all of the following apply:

1. The court shall designate the medical director of the mental health treatment
agency that will supervise and administer the patient's treatment program.

2. The medical director shall not use the services of any person, agency or
organization to supervise a patient's outpatient treatment program unless the person,
agency or organization has agreed to provide these services in the individual patient's
case and unless the department has determined that the person, agency or organization is
capable and competent to do so.

3. The person, agency or organization assigned to supervise an outpatient treatment
program or the outpatient portion of a combined treatment program shall be notified at
least three days before a referral. The medical director making the referral and the
person, agency or organization assigned to supervise the treatment program shall share
relevant information about the patient to provide continuity of treatment.

4. During any period of outpatient treatment under subsection A, paragraph 2 of
this section, if the court, on motion by the medical director of the patient's outpatient
mental health treatment facility, determines that the patient is not complying with the
terms of the order or that the outpatient treatment plan is no longer appropriate and the
patient needs inpatient treatment, the court, without a hearing and based on the court
record, the patient's medical record, the affidavits and recommendations of the medical
director, and the advice of staff and physicians or the psychiatric and mental health
nurse practitioner familiar with the treatment of the patient, may enter an order
amending its original order. The amended order may alter the outpatient treatment plan or
order the patient to inpatient treatment pursuant to subsection A, paragraph 3 of this
section. The amended order shall not increase the total period of commitment originally
ordered by the court or, when added to the period of inpatient treatment provided by the
original order and any other amended orders, exceed the maximum period allowed for an
order for inpatient treatment pursuant to subsection F of this section. If the patient
refuses to comply with an amended order for inpatient treatment, the court may authorize
and direct a peace officer, on the request of the medical director, to take the patient
into protective custody and transport the patient to the agency for inpatient
treatment. When reporting to or being returned to a treatment agency for inpatient
treatment pursuant to an amended order, the patient shall be informed of the patient's
right to judicial review and the patient's right to consult with counsel pursuant to
section 36-546.

5. During any period of outpatient treatment under subsection A, paragraph 2 of
this section, if the medical director of the outpatient treatment facility in charge of
the patient's care determines, in concert with the medical director of an inpatient
mental health treatment facility who has agreed to accept the patient, that the patient
is in need of immediate acute inpatient psychiatric care because of behavior that is
dangerous to self or to others, the medical director of the outpatient treatment facility
may order a peace officer to apprehend and transport the patient to the inpatient
treatment facility pending a court determination on an amended order under paragraph 4 of
this subsection. The patient may be detained and treated at the inpatient treatment
facility for a period of no more than forty-eight hours, exclusive of weekends and
holidays, from the time that the patient is taken to the inpatient treatment facility.
The medical director of the outpatient treatment facility shall file the motion for an
amended court order requesting inpatient treatment no later than the next working day
following the patient being taken to the inpatient treatment facility. Any period of
detention within the inpatient treatment facility pending issuance of an amended order
shall not increase the total period of commitment originally ordered by the court or,
when added to the period of inpatient treatment provided by the original order and any
other amended orders, exceed the maximum period allowed for an order for inpatient
treatment pursuant to subsection F of this section. If a patient is ordered to undergo
inpatient treatment pursuant to an amended order, the medical director of the outpatient
treatment facility shall inform the patient of the patient's right to judicial review and
to consult with an attorney pursuant to section 36-546.

F. The maximum periods of inpatient treatment that the court may order, subject to
the limitations of section 36-541, are as follows:

1. Ninety days for a person found to be a danger to self.

2. One hundred eighty days for a person found to be a danger to others.

3. One hundred eighty days for a person found to be persistently or acutely
disabled.

4. Three hundred sixty-five days for a person found to be gravely disabled.

G. If, on finding that the patient is gravely disabled, the court also finds that
the evidence indicates that the patient is or may be in need of guardianship or
conservatorship, or both, the court shall order an investigation concerning the need for
a guardian or conservator, or both, and shall appoint a suitable person or agency to
conduct the investigation. The appointee may include the mental health treatment agency
that is providing inpatient or outpatient treatment, a court-appointed visitor or the
public fiduciary if there is no person willing and qualified to act in that capacity.
The court shall give notice of the appointment to the appointee within three days of the
appointment. The appointee shall submit the report of the investigation to the court
within twenty-one days. The report shall include recommendations as to who should be
guardian or who should be conservator, or both, and a report of the findings and reasons
for the recommendation. If the investigation and report so indicate, the court shall
order the appropriate person to submit a petition to become the guardian or conservator,
or both, of the patient.

H. If, on finding that a patient is gravely disabled, the court also finds that the
patient is in need of immediate guardianship for the purpose of protection of the patient
or for the purpose of carrying out alternatives to court-ordered treatment, the court may
appoint as a temporary guardian a suitable person or the public fiduciary, if there is no
person qualified and willing to act in that capacity.

I. If, on finding that a patient is gravely disabled, the court also learns that
the patient has a guardian appointed under title 14, the court with notice may impose on
the existing guardian additional duties pursuant to section 14-5312.01.

J. The court shall file a report as part of the court record on its findings of
alternatives for treatment.

K. Treatment shall not include psychosurgery, lobotomy or any other brain surgery
without specific informed consent of the patient or the patient's legal guardian and an
order of the superior court in the county in which the treatment is proposed, approving
with specificity the use of the treatment.

L. The medical director or any person, agency or organization used by the medical
director to supervise the terms of an outpatient treatment plan shall not be held civilly
liable for any acts committed by a patient while on outpatient treatment if the medical
director, person, agency or organization has in good faith followed the requirements of
this section.

M. A peace officer who in good faith apprehends and transports a patient to an
inpatient treatment facility on the order of the medical director of the outpatient
treatment facility pursuant to subsection E, paragraph 5 of this section shall not be
subject to civil liability.

N. If a person has been found, as a result of a mental disorder, to constitute a
danger to self or others or to be persistently or acutely disabled or gravely disabled
and the court enters an order for treatment pursuant to subsection A of this section, the
court shall grant access to the person's name, date of birth, social security number and
date of commitment to the department of public safety to comply with the requirements of
title 13, chapter 31 and title 32, chapter 26.