Involuntary commitment of individuals directly to the State Hospital. Section 20-47-210; 20-47-208. Q1) In the event a family member brings the respondent directly to the State Hospital, and the State Hopsital finds ground to detain that individual, may the family file a petition in Pulaski County

_ STATE OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL 201 EAST MARKHAM STREET dt . eens wT jlos STEVE CLARK HERITAGE WEST BUILDING (501) 371-2007 ATTORNEY GENERAL LITTLE ROCK, ARKANSAS 72201 APINION NO, 86-234 - 7 a April 28, 1986 «+ The Honorable Max Howell . State Senator Arkansas State Capitol Little Rock, AR 72201 Dear Senator Howell: This is in response to your opinion request wherein you posed the following inquiries relating to the involuntary ' commitment of individuals directly to the State Hospital. — CO Po 1; In the event a family member ‘brings -the respondent - directly to the State Hospital, and the State Hospital finds grounds to detain that individual, may the family file a petition in Pulaski County Probate Court to , initiate involuntary commitment in this county? 2). In’ the event - a law. enforcement official in another county physically restrains the respondent, and . oe transports him to the State Hospital, and the State ““Hospital finds grounds to detain the person, may ee “-representatives of. the respondent's family, or . . ‘representatives of the State Hospital, file a petition oo LOL involuntary commitment | Ain Pulaski County Probate | — Court?.. an ee De . 3e Under the: ‘circumstances outlined . in Questions 1 and . -2 above, does the. State Hospital representative, or = '. family member, have 72 hours from first contact with the. patient to file the “original petition?"; and, is there .~ an additional 72 hours allowed, subsequent to filing the original petition, . in which to. conduct an "initial hearing?" . CO x ‘ we ‘N . Senator Max Howell ony April 28, 1986 : Page 2 4, May the Office of the Prosecutor Coordinator, pursuant to Section 1413, and Section 1406, assuming individuals in that office are properly deputized by the Pulaski County Prosecuting Attorney's Office, prosecute . such "initial hearings?" It is the opinion of this Office that the answer to both of the questions contained in your first inquiry is yes. Pertinent to this inquiry are, Ark. Stat. Ann, §59-1404.A and Ark. Stat. Ann. §59-1406(a) which provide as follows: §59-1404.A. Written Petition - Venue. Any person having reason to believe that a person is homicidal, suicidal or gravely disabled as defined by this Act [§§59-1401 - 59-1424] may file a verified petition with the Clerk of the Probate Court of the county in which an. alleged mentally ili person resides or is initially detained. 59-1406.(a) Immediate confinement - Initial evaluation and treatment. Whenever it appears that a person is a) homicidal, suicidal, or gravely disabled, as defined in _ . Section 1. [59~5401].-of this. Act, and immediate... . |. confinement appears. to. be necessary to avoid harm to. such person or others, an interested citizen may take said person to a hospital or community mental health ‘ center or clinic or state mental health facility. If no . Other safe.means..of. transporting. such individual is cavailable, it shall be the responsibility of the ‘sherift ‘of the county in which the individual is physically “present to transport the individual. A petition as. “provided in. Section 4[§ 59-1404) of this Act shall be filed, in-~the_Probate._ Court of the county in which the. person ‘resides “or. ts detained) within seventy-two (€72)" ““"“ho¥s, and a héarifig’as provided in Section 5(a) (1). ts 59 1405(a)(1)] of this Act shall be held. These two sections make clear. that the Pulaski: County a Probate Court.is the proper location to initiate involuntary | commitment proceedings for an- individual brought to the 7 State hospital by family members, The above statutory provisions are also pertinent to your. ~ second inquiry. The distinction created by your second - ee inquiry. is. the fact ‘that the individual is’ detained | at. ‘the’ ao " Senator Max Howell April 28, 1986 Page 3 place where he is physically restrained by a law enforcement officer. Under Ark. Stat. Ann. §59-1404.A, if the initial detention is not in Pulaski County an argument could be presented that the petition for involuntary commitment should be filed where the individual was first detained. Ark. Stat. Ann. §59+*1406(a), however, would allow the petition to be filed.by either family members or the State Hospital once the individual was detained in Pulaski County. In order to read these two statutes together, a liberal interpretation is required. Such an interpretion would allow the filing of a petition in Pulaski County after an individual is brought there by law enforcement officials. The overriding concern is that the individual is afforded procedural due process which requires the filing of the petition within 72 hours regardless of the county in which filing takes place. It is the opinion ‘of this Office that the answer to your third inquiry is no. Again, pertinent to this inquiry is the requirement in Ark. Stat. Ann. §59-1406(a) which stipulates that the petition be filed within 72 hours of the time an individual is detained and the requirement that a hearing be held as provided in Ark. Stat. Ann. §59-1405(a)(1). This latter statutory . provision requires that the initial hearing be held within . three days of the filing of the original petition, Thus, it might appear that authorities have 72 hours in which to file the original petition and a'subsequent 72 hours in which ‘to . conduct the initial hearing. . = “ott: is ‘the opinion ‘of this Office that a six- day period would wa “L:not be consistent with an individual's substantive due ..0) = “process rights. For direction in reaching this. conclusion, a -, attention has been focused on the case of Wessel v. Pryor, - 461 F.Supp. 1144 (B.D. Ark. 1978). In that case, the State 3 0°. .% --. agreed to certain constitutionally accepted procedures. to be o-. . followed pending legislative action which ultimately gave rise to the statutes referred to above. In that opinion.no . reference is ever made to a period longer than 72 hours... - -Hencé, this Office must: conclude that to interpret. Arkansas! ‘involuntary. commitment .laws to allow six days prior to an. ‘individual. being provided a hearing would raise serious © constitutional questions, ~~ Senator Max Howell April 28, 1986 Page 4 7 It.is the opinion of this Office that the answer to your fourth inquiry is yes. Ark. Stat. Ann. §59-1413 provides that the prosecuting attorney's office in the county where the petition is filed must represent the petitioner at all hearings held before the probate court. This Office can see no reason why an individual in the Office of the Prosecutor Coordinator could not be deputized by the Prosecutor to perform this function. The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General C. Randy McNair III. Sincerely, STEVE CLARK Attorney General ny