‘Ask a Real Lawyer’ tackles tough questions

Answer provided by Brian T. Newman, Esq. from the law firm of Rubin, Glickman, Steinberg & Gifford, P.C.

Question: Our 28-year-old son is bipolar and has refused to take his medication. We are dealing with the aftermath of his second interaction with the police. Is it possible to get him admitted to a care facility without his cooperation?

Answer provided by: Brian T. Newman, Esq. from the law firm of Rubin, Glickman, Steinberg & Gifford, P.C.

From your question, I can tell you are good parents that truly care about your son’s well-being, but before taking action to force your son into mental health treatment, you should be aware of the process and possible consequences it can have.

One way to force treatment upon him is to have it ordered as part of his bail conditions. This is only an option if he was criminally charged after his police interaction and the charges are misdemeanor or felony charges. If he was, the judge he appears in front of for his preliminary arraignment can order a mental health evaluation as a condition of his bail. If this occurs, he would have two options: get mental health treatment or sit in jail until his case ends. In order for this to happen, the judge would have to be aware of his mental health issues. Meaning either someone informs the judge or the conduct your son is charged for implies mental health issues.

Brian T. Newman

If your son was not criminally charged, or a mental health evaluation was not ordered, the process is much harder. Since your son is an adult, the only way to force him into treatment is to have him “involuntarily committed.” This is a drastic action, with serious consequences in Pennsylvania. Your best option is to pursue a non-legal avenue, such as voluntary treatment (if possible). I would suggest speaking to an experienced mental health professional about methods that you and your family could use to convince your son to voluntarily enter treatment. There could be methods that you have not tried, and if these methods are successful, it would save you and your family a lot of hassle.

With that said, if you still believe involuntary treatment is your only option, you can take steps to have your son involuntarily examined and treated by professionals under Section 7302 of the Mental Health Procedures Act (commonly referred to as being “302’d”). To get this process started, you must file a petition. The petition is the document where you write out the allegations regarding your son’s mental health. In doing so, you should only provide information regarding behavior that you have personally witnessed in the past 30 days. The information that you provide must support the idea that your son is a clear and present danger to himself or others. Know that at some point you will be required to testify at a hearing regarding the allegations in your petition.

The petition goes to a County Mental Health Delegate (“CMHD”). CMHDs are professionals that are highly trained and educated about mental health issues and on the Mental Health Procedures Act. Based on the petition, if the CMHD believes that your son is severely mentally disabled and an immediate danger to himself or others, a warrant will be issued. If a warrant is issued, a mental health professional or the police will bring your son to have him undergo a psychiatric evaluation by a physician within a Montgomery County facility. The law mandates that he must be examined within two (2) hours of arrival at the facility.

The decision of whether or not to 302 an individual is made by a psychiatrist at Montgomery County Emergency Services. The decision is based on: 1) the Mental Health Procedure Act’s requirements; 2) the information contained within the petition; and 3) the results of the psychiatric evaluation mentioned above. If after reviewing this information the psychiatrist believes that the individual is a clear and present danger to himself or others, the person is involuntarily committed under Section 302. In Montgomery County, individuals that are 302’d are held at Montgomery County Emergency Services, and they can remain there for up to 5 days (or until it is decided that mental health treatment is no longer needed).

If your son is 302’d, and after 5 days the facility decides that your son needs additional mental health treatment, they can apply for an extension on his commitment under Section 303. The facility applies for this by filing a petition in the Montgomery County Court of Common Pleas. Prior to the extension being granted, a hearing is held. The statute mandates that this hearing occur in front of either a judge or mental health review officer. In Montgomery County, this hearing is usually held in front of a mental health review officer at Montgomery County Emergency Services. Attorneys are allowed at this hearing (one can be appointed). In my experience, if an extension is being requested, there is usually good cause, but if a person is being wrongfully held, this hearing would be the best place to fight it.

If the mental health review officer finds that further treatment is required, the involuntary commitment can be extended an additional 20 days (or until it is decided that mental health treatment is no longer needed). There are further commitment periods after that, but I don’t think your son would get to that point – it does not sound like he is violent or hurting anyone. But, you know him better than I do. If it sounds like he would meet the criteria for commitment under the Mental Health Procedures Act, and you believe it’s the only option, then take the above steps.

In doing so, it is important to be aware that not every petition results in a warrant, and not every warrant results in a commitment. Very strict standards are applied because forcing involuntarily treatment strips your son of his constitutional rights. In Pennsylvania, being 302’d also takes away an individual’s right to own a firearm. Since your son is currently suffering from mental health issues, that might sound good. But, it could come to haunt him in the future. The only way to get a 302 commitment off of your record is via a civil expungement, and that can only occur if the decision to commit him was wrong. It is also something that must be disclosed on a number of professional applications. For example, in applying for the Bar Exam, I had to answer whether or not I had been 302’d before. I am sure that if I answered yes, I would have had a difficult time obtaining my law license.

I hope my answer helps you. I also hope it gives you some context regarding the possible consequences the process would have on you, your son, and your family. This situation is not easy, and I hope everything has a happy ending.

To arrange a free consultation with attorney Brian T. Newman, Esq.click here to email a Montgomery Bar Association LRS advisor now (LRS@montgomerybar.org), or call 610-994-3656 during regular business hours (Monday-Friday, 9 AM-4PM). If contacting us by phone, please be sure to mention this attorney’s name and how you heard.about us. Automated referrals to other Montgomery Bar Association member-attorneys in your area offering free or deeply discounted consultations through our service are available Online anytime at RealLawyers.org.

More about this Montgomery Bar Association member-panelist (bio provided by this attorney prior to publication):

Brian T. Newman is an associate attorney at Rubin, Glickman, Steinberg & Gifford, P.C., a general practice firm, with a heavy concentration in criminal defense and personal injury, in Lansdale, Pennsylvania. He joined the firm after graduating magna cum laude from Temple University School of Law. Brian’s primary practice areas include criminal defense, civil litigation, and personal injury, but he also does unemployment compensation, landlord tenant, and collection work. Brian is admitted to practice in Pennsylvania, and is a member of both the Pennsylvania Bar Association and Montgomery Bar Association.

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