SISSETON-WAHPETON SIOUX TRIBE
CHAPTER 37
INVOLUNTARY TREATMENT OF MENTALLY ILL PERSONS
37-01-01 DEFINITIONS
37-01-02 Mental Health Professional mean:
1. A licensed psychiatrist;
2. A licensed clinical psychologist;
3. A psychiatric social worker with a master's degree from an accredited
program;
4. A registered nurse with a minimum of two years of psychiatric or
psychological clinical experience under the supervision of a qualified mental
health professional as defined by (1) and (2) above;
5. A licensed physician.
37-01-03 Mentally Ill Person - means an individual with an organic, mental, or emotional disorder which substantially impairs the capacity to use self-control, judgement, or discretion in the conduct of personal affairs and social relationships. "Mentally I11 Person" does not include a mentally retarded or mentally deficient person of significantly subaverage general intellectual functioning which originated with impairment in adaptive behavior. Drug addiction and alcoholism do not, per se, constitute mental illness, although persons suffering from these conditions may also be suffering from mental illness.
37-01-04 Persons Requiring Treatment - means either:
1. A person who mentally ill, and who, as a result of such condition can
reasonably be expected to inflict intentional or unintentional and imminent
serious physical harm on himself or another person, and who has engaged in an
act or acts that substantially support this expectation; or 2. A person who is
mentally ill, and who as a result of such condition is unable to attend to his
basic physical needs, such as food, clothing, or shelter; that, must be attended
to for him to avoid serious harm, and who has demonstrated that inability by
failure to meet those basic physical needs.
37-01-05 Person Requiring Emergency Treatment - means a mentally ill person in such condition that immediate treatment is necessary for the protection from physical harm of himself and others.
37-01-06 Counsel - means a licensed attorney or lay advocate.
37-02-01 PERSON ACTING IN GOOD FAITH NOT SUBJECT TO CIVIL OR CRIMINAL.
LIABILITY
Any person acting in good faith upon either actual knowledge or reliable
information, who shall make application for commitment pursuant to this Chapter,
shall not be subject to civil or criminal for such act. Any person, who without
probable cause shall make application for commitment, alleging that another
person is mentally ill, may be liable for prosecution.
37-03-01 TREATMENT PETITION
Proceedings for the involuntary treatment of an allegedly mentally ill
individual may be commenced by any person eighteen (18) years of age or older,
by presenting information necessary for preparation of an application in the
form of a petition. The petition shall contain the following information:
1. The name, address, and age of petitioner;
2. The name, address, age, marital status and occupation when known, of the
alleged person requiring treatment.
3. The name, address, when known, of said person's nearest relatives, or, if
none, of a friend of the person; and
4. The facts upon which the allegations are based, including statement by the
individual signing the petition, statement by Tribal Police or other person
having knowledge of his her illness, and a specification, where known, of the
nature of the mental illness.
REVIEW OF PETITION BY COURT
The Court shall review the petition to see if it meets the requirements of
Section 37-03-01. The Court shall determine whether the petition establishes
probable cause to believe that the respondent meets the criteria of a person
requiring treatment or a person requiring emergency treatment. If probable cause
has not been established, the petition shall be dismissed. If probable cause is
found to exist, the Court shall order a suitable person or person's to submit a
written background investigation upon which petition is based.
37-05-01 APPOINTMENT OF COUNSEL
If the person cannot employ his own counsel, a Tribal Judge shall appoint
suitable counsel. Assignment of counsel shall be made, within seventy-two (72)
hours prior to the hearing or immediately in the case of a person requiring
emergency treatment.
37-06-01 IMMEDIATE APPREHENSION OF ALLEGED MENTALLY ILL PERSON
After reviewing a petition for emergency treatment, and if probable cause is
shown, the court shall enter and order for immediate Apprehension and Detention
of the alleged ill person.
37-06-02 He or she may be detained at an appropriate facility, it may designate as long as necessary to complete the examination and hold a hearing but no longer than seventy-two (72) hours, excluding Saturdays, Sundays, and Holidays, if evaluation services are not available on those days.
37-07-01 PLACE OF HEARING
The hearing shall be conducted at such a place as the Court may designate as
proper and humane, with due regard to the comfort and safety of the alleged
mentally ill person and others.
37-08-01 PETITION TO BE ACCOMPANIED BY CERTIFICATE OF EXAMINATION
A petition for treatment shall be accompanied, where possible, with a
certificate of a qualified mental health professional. If no certificate
accompanies the petition, the petition must set forth the reasons that an
examination could not be secured.
37-09-01 CONTENTS OF CERTIFICATE OF EXAMINATION
The certificate of examination shall be based upon a personal examination of the
individual and shall be conducted within seventy-two (72) hours after the filing
of the petition. It shall contain the following information:
1. Evaluations of the respondent's physical and mental conditions;
2. A conclusion as to whether the respondent meets the criteria of a person
requiring treatment with a clear explanation of how that conclusion was derived
from the evaluation required;
3. If the report concludes that the respondent meets the criteria of a person
requiring treatment, a list of available forms of care and treatment that may
serve as alternatives.
4. The signature of the examiner who prepared the reports.
5. Record of all drugs, medication or other treatment prescribed to person
within seventy-two (72) hours.
NOTICE
Certified copies of the petition, and a summons of hearing shall 'be personally
served ow the alleged mentally ill person at least five.(5) days prior to the
hearing or immediately in the case of a person requiring emergency medical
treatment. .The summons of hearing shall include the following:
1. Notice of the time, date, and place of hearing and directing the alleged
mentally ill person to appear in person and notifying him that if he should fail
to do so, the Court may issue a warrant directing the Tribal Police to secure
the protective custody to said alleged mentally ill person and to cause his
personal appearance at said hearing.
2. Notice to the alleged mentally ill person of his right to be represented by
counsel or of counsel selected and appointed by the Tribal Judge to represent
him.
3. Notice to the alleged mentally ill person of his right to have witnesses
testify on his behalf and any other documentation that the person may have to
support his case.
4. Notice that the alleged mentally ill person must be examined by a qualified
mental healthy professional or physician, either by voluntarily appearing for
the examination within twenty-four (24j hours after service of the summons, or
by being apprehended by the Tribal Police and detained for examination upon
order of alleged mentally ill person to appear voluntarily.
5. Notice of the right of the alleged mentally ill person to obtain an
additional examination at his own expense. In a case requiring emergency
treatment, the notice shall state that this right may be exercised after
commitment for emergency treatment.
37-11-01 EXAMINATION BY COURT ORDER
In the event the respondent upon receiving notice of the hearing refuses to be
examined by a qualified mental health professional or a physician, the Court may
issue a warrant and detain the person at a facility it may designate as long as
is necessary to complete the examination, and hold a hearing, but in no event
longer than seventy-two (72) hours, excluding Saturdays, Sundays, and holidays,
if, evaluation services are not available on those days.
37-12-01 EXAMINER TO REPORT TO COURT
After an examination, the examining mental health professional or physician
shall transmit a certificate to the court and personally appear at the hearing.
The alleged mentally ill person has the right to obtain an additional
examination at his own expense, which may be placed in evidence before the
Court.
37-13-01 PRECAUTIONS AGAINST DRUGS HAMPERING DEFENSE.
The qualified mental health professional or physician treating the patient,
shall take all reasonable precautions to ensure that; at the time of the
hearing, the person al~alleged to be mentally ill shall not be so under the
influence of, or so suffer the effects of drugs, medication, or other treatment
as to be hampered in preparing for or participating in the hearing. The Court at
the time of the hearing shall be presented a record of all drugs, medication,
and other treatment such person has received during the seventy-two (72) hours
immediately prior to the hearing.
37-14-01 PRESENCE OF THE ALLEGED MENTALLY ILL PERSON AT HEARING
The alleged mentally ill person and his attorney shall be present at all
hearings unless the patient's attorney has agreed that the alleged mentally ill
person be excused; the reasons for which shall be noted in the record. The
alleged mentally ill person's attorney may subpoena and cross-examine witnesses
and present evidence.
37-15-01 CLEAR AND CONVINCING EVIDENCE REQUIRED FOR FINDING OF MENTAL
ILLNESS
If the Court finds by clear and convincing evidence that the respondent is
mentally ill and that treatment is necessary in order to prevent the respondent
from endangering himself or others, the Court, by written findings, may order
him to undergo either inpatient or outpatient treatment at an appropriate mental
health facility.
37-16-01 ALTERNATIVES TO HOSPITALIZATION MUST HE EXHAUSTED
Before ordering inpatient treatment, the Court shall assess the availability and
appropriateness for the respondent of a treatment program other than
hospitalization.
37-16-02 Observation - Upon completion of all testimony at the
hearing, if the Court is in
doubt whether such person is mentally ill and in need of treatment, the Court
may order such a
person to undergo observation, examination, and treatment at an appropriate
mental health facility, a private hospital, or such facility as the Indian
Health Service may designate, for a period of fourteen (14)~ days. The Court may
adjourn the hearing until the end of said fourteen (14) day period and take
final action based on the reports of the physician or mental health professional
of the particular facility observing and treating the individual.
37-17-01 FILING AND ISSUANCE OF FINDINGS AND ORDER
The findings and order of the Court shall be filed with the Clerk of Court who
shall have certified copies served upon the respondent, and the Indian Health
Service Unit Director, or the Administrator of the Tribal or private facility
designated by the Tribe.
37-18-01 APPEALS FROM COURT'S DECISION
Appeals for the Court's decision shall be made to the Tribal Court of Appeals.
The respondent shall have the right to an expedited treatment. Otherwise, he has
the same rights as in a criminal appeal. The appeal shall be limited to a review
of the proceedings at the lower court and shall not be a de novo hearing, and
respondent may request a transcript of the hearing before the lower Court where
a stenographer is used or a copy of a tape recording of the hearing. If the
respondent is indigent, the Tribe will supply said material without cost to the
respondent.
37-19-01 TRANSPORTATION OF PATIENT
The Court shall appoint a suitable person to transport the patient to an
appropriate facility.
37-20-01 CARE PENDING ADMISSION TO FACILITY
If it shall be shown to the Court's satisfaction that any person found to be
mentally ill and a fit subject for custody and treatment as provided in this
title, cannot at once, be admitted to the designated facility and cannot, with
safety, be allowed to go at liberty, the Court shall require that such patient
shall be suitably and humanely provided for otherwise, until such admission can
be had, or until the occasion therefore no longer exists.
37-21-01 PATIENTS TO HE FREE FROM PHYSICAL RESTRAINT AND ISOLATION
Patients shall have the right to be free from physical restraint and isolation.
Except for emergency situations when it is likely that patients could harm
themselves or others and when less restrictive means of restraint are not
feasible, patients may be physically or chemically restrained or placed in
isolation only on a qualified mental health professional's written order, which
explains the rationale of such action. The written order may be entered only
after the qualified mental health professional has personally seen the patient
concerned and evaluated whatever episode or situation is said to call for
restraint or isolation.
37-21-02 Emergency use of restraints, or isolation shall be for no more than one (1) hour, by which time a qualified mental health professional shall have been consulted and shall have entered an appropriate order in writing. Such written order shall be effective for no more than-twenty-four (24) hours and must be renewed by the Court if restraint or isolation are to be continued. While in restraint or isolation the patient must be seen by qualified personnel who will chart the patient's physical and psychiatric condition at reasonable intervals.
37-22-01 TREATMENT BY SPIRITUAL MEANS
Nothing in this title or in any rule or regulation adopted pursuant thereto
shall be construed to deny treatment by spiritual means through prayer for any
person detained for evaluation or treatment who desires such treatment, or to a
minor if his parent, guardian, or conservator desires such treatment.
37-23-01 NONCOMPLIANCE WITH THE ORDER
If the individual ordered to undergo a program of treatment at any time does not
comply with the
order, the Court shall conduct a hearing for the sole purpose of determining or
noncompliance; and if noncompliance is determined, the Court may modify its
original order and direct the individual to undergo an alternative program of
treatment. At least five (5) days notice of the hearing shall be given to the
mentally ill person, and he shall be represented by counsel.
37-24-01 MONTHLY STATUS REPORT
The Tribal court shall request a status report when needed from IHS or other
appropriate mental health professionals on all persons ordered to be treated
involuntarily until such time as such treatment is no longer required.
37-24-02 Review Hearing - The Tribal Court shall conduct a review hearing at ninety (90) day intervals on all persons remaining under an order for involuntary treatment. The place of said review hearing shall be determined by the Court. The patient shall have the right to be present at that hearing, to be represented by counsel, and to subpoena and cross-examine witnesses. At the review hearing, the Court shall require the presentation of a report on the status of the mentally ill person, and on the need for continuing treatment. The report shall be prepared by a mental health professional and presented at the review hearing by the preparer.
37-25-01 RECORD
A record shall be made of all hearings before the Court. Such record may be
either by stenographic or tape recordings.
37-26-01 RECORDS OF COURT
All record and papers of the Court concerning any case shall be filed with the
Clerk of Court who shall keep a separate and complete file of all findings and
orders and transactions of the Court. .
37-27-01 CONFIDENTIALITY OF RECORDS
The records and papers of the Court concerning any case involving the treatment
or commitment for treatment of any mentally ill person shall be available for
inspection by the mentally ill person or his legal representative or guardian,
or upon petition to Court, stating the reason such record is needed.
37-28-01 SEVERABILITY
If any clause, sentence, paragraph, section, or part of this code shall, for any
reason be adjudicated by any Court of competent jurisdiction, to be invalid or
unconstitutional, such judgement shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section, or part thereof directly involved in the
controversy in which the judgement shall have been rendered.