Approved Ordinances for the Te-Moak Tribe of Western Shoshone
Last amended: 2003
TITLE 16 - INVOLUNTARY COMMITMENT PROCEDURES
See the enacting ordinance below.
Chapter 1. Involuntary Commitments, General Provisions
Section 16-1-1. Purpose
The purpose of this chapter is to provide procedures for the involuntary commitment and treatment of persons with mental health, drug, and alcohol problems, while protecting the rights of all Indian persons to due process of law.
Section 16-12. Construction
Section 16-1-3. Definitions
(1) Applicant: A person who makes an application for the admission of another into a treatment facility.
(2) Director: The administrator or other administrative officer of a treatment facility.
(3) Court: The Trial Court of competent jurisdiction.
(4) Treatment Facility: Any center for the treatment of mentally ill, drug or chemically dependent, and/or alcoholic persons, including a detoxification center, whether on or off the Reservation.
(5) Committable Person: Committable person shall mean any mentally ill Indian person, alcoholic Indian person or drug or chemically dependent Indian person who presents:
(a) a substantial risk of serious harm to another person or persons or unborn child within the near future as manifested by recent violent acts or threats of violence or by placing others in reasonable fear of such harm; or
(b) a substantial risk of serious harm to such person within the near future as manifested by evidence of recent attempts at, or threats of, suicide or serious bodily harm or evidence of inability to provide for such person's own basic personal needs, including food, clothing, shelter, essential medical care, or personal safety.
(6) Mentally Ill Person: A person with a mental or emotional disease or disorder which impairs the capacity to use self-control, judgment or discretion in caring for basic personal needs or conducting social relations.
(7) Alcoholic Person: A person who has a history of chronic, excessive drinking of alcoholic beverages and as a result of such drinking regularly and for significant periods of time loses powers by self-control, judgment or discretion in caring for fundamental personal needs or conducting social relations.
(8) Drug and Chemically Dependent Person: A person who has a history of chronic excessive use of drug or chemicals, and as a result of such drug or chemical use regularly and for significant periods of time loses powers of self-control, judgment or discretion in caring for fundamental personal needs or conducting social relations.
(9) Respondent: A person who is the subject of a formal application under this chapter for involuntary commitment.
(10) Patient: Any person who is under observation, care or treatment in a treatment facility.
(11) Probable Cause: A reasonable ground for belief.
Chapter 2. Involuntary Commitment Procedure
Section 16-2-1. Voluntary Admission
Any person may apply for voluntary admission to any public or private hospital, other facility or program for treatment of mental illness, alcoholism or drug abuse in accordance with the regulations of such facilities or programs governing such admissions. Any person admitted for voluntary in-patient or similar custodial treatment in such facility shall be entitled to be unconditionally discharged from the facility within forty-eight (48) hours after delivery of a written request made to any official of such facility, unless an application is filed under the provisions of this Code within forty-eight (48) hour period. Unless the voluntarily admitted person becomes the subject of an application for commitment, such person shall not be subject to the other provisions of this Code.
Section 16-2-2. Application for Involuntary Commitment
(1) Any health care professional, including the Director of any treatment facility, may submit to the Court an application to have any person subject to the jurisdiction of the Court involuntarily committed to a treatment facility for mentally ill, alcoholic, or drug or chemically dependent persons. Such application shall include:
(2) If a person who is not a health care professional believes that another person is committable, that person may request that the Director of the tribal health clinic initiate an investigation. The Director shall do so and if in the Director's sole discretion there is probable cause that the person is committable, the Director shall file an application for commitment.(a) The name, address and telephone number of the applicant, the respondent, and if known, the closest relative of the respondent; and
(b) The reason(s) why the applicant believes the respondent is a committable person;
(c) Any available supporting evidence, including~ affidavits or written statements from physicians, psychologist, other appropriate professionals or members of the community concerning the respondent;
(d) The petition shall also explain why involuntary commitment is the only available treatment alternative that will prevent harm to the respondent or other as described earlier in this Chapter.
Section l6-2-3. Review of Application for Involuntary Commitment
The Tribal Prosecutor shall review the petition immediately before it is filed. If the Prosecutor finds that the petition is insufficient to support a finding that the respondent is a committable person, the petition shall not be accepted for filing.
Section 16-2-4. Emergency Detention
(1) Any person who has reason to believe another person is a committable person may report such person to the law enforcement officer indicating why it is believed that the person is committable. A law enforcement officer receiving such a report shall promptly investigate the person alleged to be committable.
(2) Whether or not there is a report, a law enforcement or a physician may take into emergency detention any person subject to the jurisdiction of the Court whom the officer or licensed physician, following investigation, has probable cause to believe is a committable person, and the harm to self or otherwise is likely to occur before a final hearing can be held under these provisions. A physician or law enforcement officer who takes a person into emergency detention shall immediately make all reasonable efforts to notify the patient's closest relative.
(3) Where possible, such person shall be taken to a treatment facility on the Reservation. Where no on-Reservation treatment facility or health care facility can provide the emergency treatment or protection needed by the patient to protect him/her from imminent harm, a law enforcement officer or physician may place such person in an appropriate treatment facility off the Reservation. In no event shall emergency detention be continued beyond three (3) business days without a preliminary hearing. Upon taking a person into emergency detention, the law enforcement officer or physician shall immediately submit an application to the Trial Court under this chapter. Upon receiving such an application, the Court shall order the prompt examination of the patient by a psychiatrist, physician, psychologist or other appropriate health care professional.
(4) A person brought to a treatment facility shall be examined by a physician or other appropriate health care professional within thirty six (36) hours of the commencement of detention. If the physician or other professional determines that in his other professional opinion such person is committable, such person shall be admitted to the facility. Otherwise, such person be released and transported home. The Director shall as soon as practicable notify the Court of the admission or release of any respondent, and submit a report to the Court explaining why he/she concluded that the patient is or is not a committable person.
Section 16-2-5. Preliminary Hearing; Right to Counsel
(2) The Prosecutor shall make all reasonable attempts to notify, by telephone or other means, the respondent and the respondent's closest relative of the time and place of the preliminary hearing, and the respondent's right to:
(a) retain counsel at respondent's own expense;
(b) be present at the preliminary hearing;
(c) testify, present documentary evidence, call witnesses and ask questions of all witnesses.
(3) The preliminary hearing shall be conducted informally and shall be closed to the public unless the respondent or authorized representative requests otherwise and the Court so orders. If the Court determines, based on the evidence at the preliminary hearing , that there is probable cause to believe the respondent is a committable person, the Court may commit the respondent to an appropriate treatment facility pending a final hearing. Such final hearing shall be held within ten (10) calendar days of the preliminary hearing unless the respondent or the respondent , 5 authorized representative requests a postponement.
(4) If the Court does not find probable cause that the respondent is committable it shall dismiss the application and order the person released.
(5) A respondent has the right to be represented by counsel during all proceedings under this chapter. Counsel for a patient shall have full access to and the right to consult privately with the patient at all reasonable times. As soon as possible after a person is taken into emergency detention, or after the filing of a petition, whichever occurs first, the Court shall determine whether the individual is indigent individual.
Section 16-2-6. Placement After Finding of Probable Cause
Where the Court has found probable cause that the respondent is committable and a placement appropriate for a committed person becomes available that would likely be lost before a final hearing can be held, for example, placement in an alcohol treatment program that runs according a fixed time cycle, the Court may place the respondent in that program pending the outcome of the final hearing . Should the Court, at the final hearing, fail to find by clear and convincing evidence that the respondent is committable, or find that the respondent is not committable, the respondent shall be eligible for immediate release from the program.
Section 16-2-7. Final Hearings; Timing and Notice
(1) When a Final Hearing Shall be Held: The Court shall hold a final hearing as soon as possible after the application is filed, and immediately following receipt of detailed observations by a physician or other appropriate professional sufficient to enable the Court to make a determination as to whether the patient is commitable . The Court may order the respondent to be examined by a physician or other appropriate professional prior to the hearing. In no event shall the final hearing be held more that ten (10) days after the preliminary hearing or fourteen days after the application if there was no preliminary hearing, unless the respondent or the respondent's authorized representative request a postponement.
(2) Notice: The Court shall serve prior written notice of the date, time and place of the final hearing upon the respondent, any person designated by the respondent as his/her representative, and the spouse and parents and/or guardians of the respondent. Notice shall be served in person or, if such service is not successful, by posting the written notice on the door of the person's last known address. The notice to the respondent shall set for the rights described later in this Chapter.
Section 16-2-8. Final Hearings; Procedure
(1) The Prosecutor shall present the case to the Court. The respondent has the right to attend the hearing and cannot be excluded. The respondent is entitled to be represented by counsel, if the Tribe has funds available for this purpose.
(2) At the commencement of the hearing, the Court shall inquire whether the respondent has received the copy of the application and list of rights accorded him/her, and whether the respondent has read and understood them. If the respondent has not, the Court shall explain to the respondent any part of the application or list of rights which the respondent has not read or understood.
(3) Hearing shall be closed to the general public, unless a public hearing is requested by the respondent and the Court orders the hearing to be open. Where necessary, the hearing shall be held at the treatment facility. The Court shall require the testimony of an appropriate health professional, based on an examination of the respondent, presenting the facts and circumstances concerning the respondent's condition and dangerousness. The Court in consultation with the tribal health clinic shall determine the categories of professionals who are qualified to examine and testify concerning mentally ill, alcoholic, and drug or chemically dependent persons.
(4) The respondent may summon or produce such witnesses and evidence as they desire. The Court shall have the power to issue subpoenas to compel the testimony of witnesses or the production of books, records, documents or any other physical evidence related to the determination of the case and not an undue burden on the person possessing the evidence. In the absence of a justification satisfactory to the Court, a person who fails to obey a subpoena issued and served may be cited and held in contempt.
(5) A record shall be kept of the proceedings, including all documents entered into evidence. The oral proceedings shall recorded verbatim by either a qualified court reporter or by tape recording equipment. The Court shall make written findings in support of its decision.
Section 16-2-9. Order of Commitment
If the Court shall find, after final hearing, that there is clear and convincing evidence that the respondent is committable, and that involuntary Commitment is the only available treatment alternative that will prevent harm to the respondent or others, it shall enter an order directing the commitment and treatment of such person. Otherwise, the case shall be dismissed and the respondent, if in detention, shall be ordered to be release immediately.
Section 16-2-10. Lack of Available Treatment Facility
Where there is no appropriate treatment facility available for a person who has been ordered committed, the order of commitment shall remain in effect for a period of 14 days while an appropriate facility is sought. If a facility becomes available within that period, the Court shall order appropriate treatment personnel or a law enforcement officer to transport the individual to the facility.
Section 16-2-11. Rights of Respondents
The rights of the respondents are as follows:
(1) Right to written notice of the time and place of the final hearing, and the reasons alleged in the petition for the proposed commitment of the respondent.
(2) Right to be represented by counsel in all proceedings under this chapter, at the expense of the Tribe if the Tribe finds that funds are available for this purpose. Counsel for a patient shall have full access to and the right to consult privately with the patient at all reasonable times. As soon as possible after a person is taken into emergency detention, or after the filing of a petition, whichever occurs first, the Court shall determine whether the individual is indigent and shall arrange counsel as soon as possible.
(3) The right to be examined by an independent health professional, at the expense of the Tribe where the Tribe finds funds available for that purpose.
(4) The right to access, by the respondent and counsel, to the name of all witnesses expected to testify in support of the petition, access at all reasonable times for all witnesses and copying of all documents pertaining to the case, including reports of law enforcement agencies and health professionals, and access to records of any health facility, physician, or other health professional that has at any time treated the subject for a mental illness, alcoholism, or drug dependency, which are relevant to the issues of whether the individual is committable under the provisions of this Chapter. The Court may order further discovery in its discretion. The Prosecutor shall have the same access to such information.
(5) The right to liberal granting of continuances of the final hearing as requested by the respondent or counsel.
(6) The right to appear personally at the hearing, to present and cross examine witnesses and to present other relevant evidence and the right to request subpoena of witnesses and documents by the Court. Such requests shall be liberally granted in the Court's discretion. If the respondent is physically unable to attend, the Judge can waive this right with two physician's statements.
(7) The right to written findings by the Court in the event that the respondent is committed.
(8) The right to be free, during any period of detention prior to the final hearing, of such quantities of medication and other treatment as would substantially impair the respondent's ability to assist in the defense at the hearing.
(9) The rights, in the event respondent is committed, to petition for release.
(10) The respondent may waive rights granted by this section by failing to request or exercise the rights set forth in subsections (3), (4), and (5). As to the other rights, the respondent must affirmatively waive the right and the record must reflect that the waiver was made personally, intelligently, knowingly and voluntarily by the respondent or counsel or guardian if the respondent is incapacitated. If the Court determines that the respondent cannot waive the rights under the conditions set forth in this section, the respondent, a counsel shall have the discretion to waive the rights. If the respondent is not represented by counsel, these rights cannot be waived.
Section 16-2-12. Continued Jurisdiction of Required. Court; Reports
(1) The Court shall retain jurisdiction until such time as the patient is discharged from the treatment center. For detention to continue, the patient must receive regular care and treatment appropriate for the patient's illness. The director or other representative of the treatment center shall supervise preparation and implementation of an individualized treatment plan, record the patient's progress under the plan, and report such progress to the Court. The individualized treatment plan shall contain a description of the specific mental and physical problems and needs of the patient, a statement of the least restrictive treatment condition necessary to achieve the purposes of the Court's order of commitment, and a description of intermediate and long range treatment goals, with a projected timetable for their attainment. A copy of such plan shall be completed, filed with the Court for review and inclusion in the patient's Court file, and served upon the Prosecutor, patient and counsel and parent/legal guardian, if a minor or an incapacitated person, within five (5) working days after commitment to the facility.
(2) The treatment center, no less frequently than every 90 days and at least once during the period of commitment, shall file a progress report with the Court and shall serve copies of the report on the individual enumerated in subsection (1). Within the time limitations just enumerated, the Court shall have the discretion to fix the frequency of progress reports. Such reports shall outline the treatment being administered to the patient, the patient's progress toward recovery and the director's recommendation as to the need for continued detention.
Section 16-2-13. Petition for Release
(1) The patient or the patient's authorized representative may at any time petition the Court for release from the treatment facility. The petition shall be in writing, but need not be in any particular form. Grounds for release include the improved health of the patient such that the patient is no longer committable under the standards of this Chapter. Upon receipt of a petition for release, the Court shall review the petition, and serve a copy upon the Prosecutor, patient and director. The director shall respond to the petition within seven (7) calendar days. If, after consideration of the petition and director's response, the Court finds substantial evidence that the patient may no longer be committable, the Court shall order and hold a hearing on the matter, following the procedures set forth in this Chapter. The patient shall be present at the hearing.
(2) Where the Court finds the patient is still committable but that outpatient treatment would enable the patient to function without danger to self or others, the Court may order the patient released subject to receipt of outpatient treatment. If the treating professional reports to the Court that the patient is no longer accepting the outpatient treatment, the Court shall order the person immediately recommitted to an inpatient facility.
Section 16-2-14. Release by Treatment Facility
The director shall notify the Court at least seven (7) days in advance of the planned release of the patient. The Court, upon motion of the Prosecutor or on its own motion, shall conduct a hearing to determine whether the person is still committable. If the Court determines that the patient is still committable, the patient shall not be released from the treatment center.
Section 16-2-15. Annual Review
Whether or not the patient has filed a petition for release, the Court shall hold a hearing not less than once each year, following the procedures of this Chapter, to determine if the basis for the original detention still exists. If the Court finds that there is no longer clear and convincing evidence that the patient is committable, the Court shall order the patient immediately released.
Section 16-2-16. Confidentiality of Records
All records on any subject of an application under this Chapter shall remain confidential, expect as may be provided otherwise by law. Such records shall be accessible to the subject, the subject's counsel, the subject's parent's/guardians, the Court, person authorized by an order of the Judge or persons authorized by written permission of the subject. Upon application by the Prosecutor or by the director of the facility where the patient is in custody and upon showing of good cause, the Court may order that the records shall not be made available to the patient if, in the judgment of the Court, the availability of such records to the patient will adversely affect the patient's mental state and the treatment thereof.
Section 16-2-17. Preparation of Rules, Forms and Regulations
The Court shall adopt and enforce such forms, rules and regulations as may be necessary for the implementation of this section.
Chapter 3. Amendments
16-3-1. Amendments
This Ordinance may be amended by a majority vote of the Tribal Council members at a duly called and held meeting.
(1) Provided that the Tribal Council shall deliver, by personal service or return receipt mail, the proposed amendment to this Ordinance to each Band Council office for review and comment by the Band, at least ten (10) days but no more than forty-five (45) days before a vote is taken on such proposed amendment pursuant to Article 4, Section 20 (b) of the Constitution.
CERTIFICATION
I, the undersigned, of the Tribal Council of the Te-Moak Tribe of
Western Shoshone Indians of Nevada do hereby certify that the Te-Moak
Western Shoshone Council is composed of 11 members of whom 6 constituting
a quorum were present at a duly held meeting on the 27th day of
June, 1996, and that the foregoing Ordinance was duly adopted
at such meeting by an affirmative vote of 5 FOR, 0 AGAINST,
0 ABSTENTIONS, pursuant to the authority contain under Article
4, Section 3(n) of the Constitution of the Te-Moak Tribe of Western
Shoshone Indians of Nevada.
| s/s FELIX IKE, CHAIRMAN Te-Moak Tribe of Western Shoshone |
ORDINANCE OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIAN OF NEVADA
BE IT ENACTED BY THE TRIBAL COUNCIL OF THE TE-MOAK TRIBE OF WESTERN
SHOSHONE INDIANS OF NEVADA, AS FOLLOWS:
That in accordance with Article 4, Section 3 (n) of the Constitution of the Te-Moak Tribe, approved May 3, 1938, as amended on August 26 , 1982 , as organized under the Indian Reorganization Act of June 18, 1934, (48 Stat.), as amended by the Act of June 15, 1934, (49 Stat. 378).