Request By:
Joan C. Lee
Staff Attorney
Northern Kentucky Legal
Aid Society, Inc.
302 Greenup Street
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; Nancy S. Marksberry, Assistant Attorney General
This is in response to your request for an opinion interpreting the procedure for a seven-day involuntary commitment of an individual who is mentally ill and presents an immediate danger or threat of immediate danger to self or others if not restrained. In particular you are concerned with the continued detention, pending a hearing, of a person found to be free of mental illness by a physician.
The procedure for a seven-day involuntary commitment of an individual is set forth in KRS 202A.050. The process is initiated by a complaint or affidavit from one who has reasonable grounds to believe the individual presents an immediate danger or threat of danger to self or others. The requirement of "reasonable grounds" insures that a bare allegation of "mental illness" will not result in the arrest of the individual. Further assurance that the individual will not be unnecessarily incarcerated is provided by the necessity of a finding of "probable cause" by a circuit or district court judge prior to issuing a warrant for the arrest of the individual.
KRS 202A.050(2) further provides:
After the warrant and arrest have been executed, the named individual shall be taken to a physician for examination, or if facilities are available and an authorized staff physician agrees, the person may be lodged in a hospital rather than a jail pending a hearing. The court issuing a warrant under this statute shall hold a hearing within forty-eight (48) hours (excluding weekends and holidays) to determine whether the individual should be involuntarily committed to a hospital for a period of seven (7) days. (Emphasis added.)
This statute should be construed so that no part is meaningless or ineffective.
Brooks v. Meyers, Ky., 279 S.W.2d 764 (1955). Accordingly, the use of the mandatory "shall" requires an examination by a physician after the arrest of the individual and an involuntary commitment hearing within forty-eight (48) hours of his arrest. Pending the mandatory hearing, the individual is to be lodged in either the jail or a hospital if facilities are available and an authorized staff physician agrees to the admission of the person. The express language of KRS 202A.050(2) mandates the detention of the individual in either the jail or a hospital pending the hearing.
We disagree with your proposed analogy between the conclusiveness of the physician's examination required by KRS 202A.040 and the utilization of the physician's findings in the procedure set forth in KRS 202A.050. KRS 202A.040 provides for the detention of an individual without a warrant if a peace officer has reasonable grounds to believe the person mentally ill. Here the physician's examination furnishes "probable cause" to detain the person pending a hearing. Unless the physician finds the person mentally ill and presenting an immediate danger or threat of danger to self or others as a result of the illness and can reasonably benefit from treatment, and that hospitalization is the least restrictive alternative mode of treatment, there is no probable cause or basis for the continued detention of that person without a warrant.
In sharp contrast, KRS 202A.050(2) provides for a judicial determination of probable cause prior to the arrest of the person suspected of being mentally ill. Since the findings of the physician are made subsequent to a judicial determination of probable cause, the opinion that the individual is not mentally ill is not sufficient to negate probable cause. However, it is sufficient to decline admission to the hospital.
The problem of wrongful incarceration to which you refer is addressed in KRS 202A.990. Penalties include a fine not in excess of five thousand dollars ($5,000) and/or a term of imprisonment not to exceed five (5) years.
In summary, KRS 202A.050 provides that an involuntary hospitalization hearing must be held within forty-eight (48) hours, excluding weekends and holidays of the arrest of an individual suspected of being mentally ill. Pending the hearing, the statute requires that the individual be lodged in either the jail or a hospital, if facilities are available and an authorized staff physician agrees to such lodging.