Section 22-52-37


Published: 2015

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Section 22-52-37

Section 22-52-37Standards for conduct of civil commitment proceedings generally; minimum standards for civil commitment; appeals from orders of probate courts as to commitment.

(a) Any civil commitment proceedings are to be conducted in accordance with the following constitutional due process standards:



(1) Adequate notice of the hearing and its purpose shall be given sufficiently in advance of the scheduled proceedings to permit a reasonable opportunity to prepare therefor.



(2) The person to be committed shall have the right to attend the hearing unless the court, after appropriate inquiry, determines that he or she is so mentally or physically ill as to be incapable of attendance.



(3) The subject of the hearing shall be informed of his right to counsel and to the appointment of counsel if indigent. Where the commitment of a presently confined patient is sought, a guardian ad litem who is an attorney shall be appointed.



(4) The guardian ad litem shall be entitled to a reasonable fee as compensation for services rendered for time in court and out of court, to be determined by the judge hearing the case. The decision of the judge as to the reasonableness of the fee shall be final, and the fee shall be payable, initially, by the Department of Mental Health and Mental Retardation. Such compensation shall, within 90 days, be reimbursed to the Department of Mental Health and Mental Retardation by the county from which the patient was originally committed by the circuit court acting pursuant to its powers in Sections 15-16-21, 15-16-22, 15-16-24 and 15-16-40 or the county from which the patient was originally sentenced to the state penitentiary before transfer by the Governor pursuant to the provisions of Article 4 of this chapter.



(5) Any expenses incurred in carrying out the provisions of this section shall be reasonable as determined by the judge hearing the case, and his decision shall be final. Such expenses shall be payable, initially, by the Department of Mental Health and Mental Retardation. Such expenses shall, within 90 days, be reimbursed to the Department of Mental Health and Mental Retardation in the same manner as provided in subdivision (a)(4) of this section.



(6) Commitment hearings are to be conducted in surroundings as noncoercive as possible, and appropriate street dress made available to each subject, if not already available.



(7) No person shall be committed unless the judge finds the following minimum standards for civil commitment have been met:



a. That he is mentally ill;



b. That he poses a real and present threat of substantial harm to himself or to others;



c. That the danger has been evidenced by some factual basis to support the facility staffs' recommendation that recommitment, commitment or continued custody is necessary for the person's health and well-being. In order for a person to be committed or recommitted to the custody of the Department of Mental Health and Mental Retardation, the evidence presented must clearly and convincingly lay a factual basis for the conclusion that continued custody is necessary;



d. That there is treatment available for the illness diagnosed or that confinement of the dangerous but untreatable individual is necessary for his and the community's safety and well-being; and



e. That commitment or recommitment is the least restrictive alternative necessary and available for treatment of the person's illness.



(8) The necessity for commitment must be proved by evidence which is clear, unequivocal and convincing.



(9) At the hearing, the subject shall have the right to offer evidence, to be confronted with the witnesses against him and to cross-examine them and shall have the privilege against self-incrimination. The rules of evidence applicable in other judicial proceedings in this state shall be followed in involuntary civil commitment proceedings.



(10) A full record of the proceedings, including findings for adequate review, shall be compiled and retained by the probate court.



(11) The guardian ad litem shall not be limited with respect to his power to waive any of his client's rights when, in his judgment and in the judgment of the judge of probate or, as the case may be, the circuit judge, after appropriate findings of fact, waiver is in the best interest of the client.



(b) An appeal from an order of the probate court either granting or denying a petition seeking to commit a person to the custody of the Department of Mental Health and Mental Retardation lies to the circuit court of Tuscaloosa or Mobile Counties for a trial de novo of the case without a jury. Notice of appeal shall be given in writing to the judge of probate within five days of the granting or denying the petition. Upon the filing of a notice of appeal, the person sought to be committed to, recommitted to or continued in the custody of the Department of Mental Health and Mental Retardation shall remain in the custody of said department pending an adjudication of the case in the circuit court. Upon the filing of a notice of appeal, the judge of probate shall certify the record to the clerk of the circuit court. The petition shall be set for a hearing by the circuit court within 30 days of the date of filing the notice of appeal. The hearing shall not be continued except upon motion in writing by the person sought to be committed for good cause. The costs of the proceedings in circuit court shall be taxed in the manner as in the probate court. All the requirements relative to hearings in the probate court shall apply to appeals heard in the circuit court.

(Acts 1975, No. 1228, p. 2576, §8.)