TITLE 40.1
Behavioral Healthcare, Developmental Disabilities and Hospitals

CHAPTER 40.1-22
Developmental Disabilities

SECTION 40.1-22-10


§ 40.1-22-10 Discharges – Judicial review.

(a) Any resident over eighteen (18) years of age or married residents under eighteen (18), except any resident who is under court ordered restriction, shall be free to leave any public or private developmental disabilities facility at any time upon giving written or oral notice of the intention to the superintendent or other head of the facility. The superintendent or other head of the facility may restrict the right to leave the facility to normal working hours and weekdays and, in his or her discretion, may require that certain residents give three (3) days notice of their intention to leave the facility.

(b) Where persons are required to give three (3) days notice of an intention to leave the facility, an examination of the person may be conducted by a team to determine his or her suitability for discharge and to investigate other aspects of his or her case including his or her legal competency and his or her family, home, or community situation to the interest of discharging him or her from the facility.

(c) If, however, the superintendent or other head of the facility determines that discharge of a person who has given three (3) days notice would create a likelihood of serious harm to the person himself or herself or to other people by reason of the person's developmental disability, he or she shall forthwith petition the district court of the judicial district wherein the facility is located to order that the person be further retained as a resident. The superintendent or other head may retain the person until the hearing on the petition has been held.

(d) The court shall cause a notice, as defined in this chapter, of the time and place set for the hearing to be served upon the person and the nearest relative or guardian of the person and the superintendent or other head of the facility. In all hearings, the person shall be represented by legal counsel and may present independent clinical testimony. If the person is found by the court to be indigent, counsel shall be appointed by the court and an independent clinical examination, if requested by counsel for the person, may be provided by the court. The person shall be allowed not less than forty-eight (48) hours after the appearance of counsel on his or her behalf in which to prepare his or her case. The person or his or her representative may request either an open or closed hearing in any court proceedings and the court in its discretion may grant the requests.

(e) If the court finds after the hearing that the discharge of the person would create a likelihood of serious harm to the person himself or herself or to other people by reason of developmental disability, the court shall order that the person be further retained as a resident and the person may not, during the next six (6) month period, leave the facility except by permission of the superintendent or other head of the facility and no further court action shall be necessary to retain the person during the period. If the court does not so find, it shall order that the person be forthwith discharged.

(f) Any person aggrieved by the decision of a district court order for further residential care under the provisions of this section may appeal the findings and order of the district court de novo to the court having appellate jurisdiction wherein the facility is located. In an appeal to a court under the provisions of this section, the findings and order of the district court may be introduced into evidence by either party. If the appellate court finds after a hearing that discharge of the person would create a likelihood of serious harm to the person him or herself or to other people by reason of developmental disability, the court shall order that the person be further retained as a resident and as such may not, during the next six (6) month period, leave the facility except by permission of the superintendent or other head of the facility, and no further court order shall be necessary to retain the person during the period.

(g) As the basis for its order the appellate court shall make written findings as to the following:

(1) That the person is developmentally disabled and the evidence upon which this determination is based; and

(2) That, in accordance with the definition of "developmental disability" in 40.1-21-4.3(2) as indicated by the court, the discharge of the person would create a likelihood of serious harm to the person himself or herself or to other people by reason of the developmental disability and the evidence upon which this determination is based; and

(3) Any other issue or evidence, which the court deems relevant and necessary for inclusion in its findings. If the court finds that the person does not meet the definition of "developmental disability" in chapter 21 of this title such that there does not exist a likelihood of serious harm to the person himself or herself or to other people by reason of the developmental disability, it shall order that the person be forthwith discharged.

(h) If, at the end of any six (6) month period of retention, the person is still in need of care and treatment, he or she may, if he or she so desires, be admitted or transferred to other care and treatment in the same or another facility. If the person is unwilling to consent to continued residence, he or she shall be discharged; provided, however, that, if the superintendent or other head of the facility determines that the discharge would create a likelihood of serious harm to the person himself or herself or to other people by reason of developmental disability, he or she shall, prior to the expiration of the six (6) month period, petition the district court which made the earlier order to order, under the same procedures, that the person be further retained as a resident, and the person may not during the next one year period leave the facility except by permission of the superintendent or other head of the facility and no further court order shall be necessary to retain the person during the period. The order may be renewed by the court for additional one year periods on petition of the superintendent or other head of the facility under the same conditions and procedures and opportunity for judicial review as above. The superintendent or other head of the facility shall be immune from civil suit for damages for retaining a person and petitioning the court pursuant to the provisions of this section.

(i) Whenever a person before the district court appears to be developmentally disabled and the court determines either that the crime has not been committed or that there is not sufficient cause to believe that the person is guilty thereof, the court may order evaluation procedures as previously provided in this section, or after a hearing as provided in subsections (d) and (e), and in such a case the criminal action shall terminate.

History of Section.
(P.L. 1970, ch. 324, § 1; P.L. 1978, ch. 195, § 1; G.L. 1956, § 23-43.1-10; P.L. 1979, ch. 39, § 1; P.L. 1995 ch. 122, § 2.)