Involuntary Commitment of Persons With Mental Conditions; Discharge; Procedure

Del. Code tit. 16, ch. 50
in effect

Del. Code tit. 16, § 5001 Definitions [For application of this section, see 85 Del. Laws, c. 253, § 23].

Except where the context indicates otherwise, as used in this chapter: (1) “Court” means the Superior Court or the Family Court of the State, both of which courts shall have jurisdiction and responsibility for the implementation of this chapter. (2) “Credentialed mental health screener” means an individual who is: a. A psychiatrist; or b. A licensed mental health professional who is credentialed by the Department to provide emergency screening services and evaluation of the need for involuntary observation and treatment for a mental condition; or c. An unlicensed mental health professional who works under the direct supervision of a psychiatrist and who is credentialed by the Department to provide emergency screening services and evaluation of the need for involuntary observation and treatment for a mental condition; d. A physician with a valid State of Delaware license to practice medicine and who is credentialed by the Department to provide emergency screening services and evaluation of the need for involuntary observation and treatment for a mental condition; or e. A physician with a valid license to practice medicine who works in a United States Department of Veterans Affairs medical center, located in the State, and who is credentialed by the Department to provide, for patients seen in the physician’s employment by the United States Department of Veterans Affairs medical center, emergency screening services and evaluation of the need for involuntary observation and treatment for a mental condition. (3) “Dangerous to others” means that by reason of mental condition there is a substantial likelihood that the person will inflict serious bodily harm upon another person within the immediate future. This determination shall take into account a person’s history, recent behavior and any recent act or threat. (4) “Dangerous to self” means that by reason of mental condition there is a substantial likelihood that the person will imminently sustain serious bodily harm to oneself. This determination shall take into account a person’s history, recent behavior, and any recent act or threat. (5) “Department” means the State of Delaware Department of Health and Social Services. “Department” shall also mean the Department of Services to Children, Youth, and their Families for individuals under the age of 18 or otherwise are in custody of the Department of Services to Children, Youth, and their Families or receiving financial assistance from the Department of Services to Children, Youth, and their Families. (6) “Designated psychiatric treatment facilities” means all facilities designated by the Secretary to provide psychiatric emergency care for individuals believed to have a mental condition and whose behavior is believed to be dangerous to self or dangerous to others; such facilities include psychiatric hospitals operated by the State of Delaware, privately operated psychiatric hospitals, any psychiatric emergency receiving facilities that provide mental health screenings, evaluations, treatment, and referral services, or other facilities as may be designated by the Department by regulation. (7) “Designated transport personnel” means such personnel as designated by the Secretary to transport persons with mental conditions to and from needed health-care services provided in hospitals and designated psychiatric treatment facilities, pursuant to this chapter; these personnel include peace officers, private ambulance staff, state employees and contracted transportation staff as approved by the Department. Any peace officer involved may mandate the manner and method of transportation of persons who require such transport when required to ensure public safety. (8) “Emergency detention” and “emergently detained” means the process whereby an adult who appears to have a mental condition, and whose mental condition causes the person to be dangerous to self or dangerous to others, and who is unwilling to be admitted to a facility voluntarily for assessment or care, is involuntarily detained for such evaluation and treatment for 24 hours in a designated psychiatric facility because other less restrictive, more community integrated services are not appropriate or available to meet the person’s current mental health-care needs. Emergency detention shall also mean the process whereby a minor who appears to have a mental condition, and whose mental condition causes the person to be dangerous to self or dangerous to others, and who is unwilling to be admitted to a facility voluntarily for assessment or care, is involuntarily detained for such evaluation and treatment for 24 hours unless the parent or legal guardian is unavailable to the Department during that 24-hour period; in such instances the time period may be extended to 72 hours. (9) “Hospital” means the Delaware Psychiatric Center and any hospital in this State which is certified by the Secretary of the Department of Health and Social Services as being an appropriate facility for the diagnosis, care and treatment of persons with mental conditions 18 years of age or older. “Hospital” shall also mean any hospital in this State which is certified by the Secretary of the Department of Services for Children, Youth and Their Families as being an appropriate facility for the diagnosis, care and treatment of persons with mental conditions under 18 years of age. (10) “Involuntary patient” means a person admitted pursuant to emergency detention, provisional admission, a complaint for involuntary civil commitment, a probable cause hearing or an involuntary inpatient commitment hearing to the custody of a designated psychiatric treatment facility or hospital for observation, diagnosis, care and treatment. (11) “Juvenile mental health screener” means a person authorized by the Department of Services for Children, Youth and Their Families to assess individuals under the age of 18 for emergency detention. Juvenile mental health screeners shall have the same duties, authority, rights, and protections, including the immunity provisions of this chapter, as “credentialed mental health screeners” when the term “credentialed mental health screeners” is utilized throughout this chapter. The Department of Services for Children, Youth and Their Families is authorized to establish regulations concerning the credentialing process and criteria for juvenile mental health screeners. (12) “Licensed independent practitioner” means employees of designated psychiatric treatment facilities, in addition to psychiatrists, who hold credentials and privileges to admit persons into care and write orders to treat said persons in that facility. Licensed independent practitioners can include but are not limited to staff that hold licenses as psychologists, advanced practices nurses, and physician associates or such other health-care providers as may be designated to work independently pursuant to the regulations of the Department. (13) “Mental condition” means a current, substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior, or capacity to recognize reality. Unless it results in the severity of impairment described herein, “mental condition” does not mean simple alcohol intoxication, transitory reaction to drug ingestion, dementia due to various nontraumatic etiologies or other general medical conditions, Alzheimer’s disease, or intellectual disability. The term “mental condition” is not limited to “psychosis” or “active psychosis,” but shall include all conditions that result in the severity of impairment described herein. (14) “Peace officer” means any public officer authorized by law to make arrests in a criminal case. (15) “Psychiatrist” means an individual who possesses a valid State of Delaware license to practice medicine and has completed an accredited residency training program in psychiatry. (16) “Secretary” means the Secretary of the State of Delaware Department of Health and Social Services. “Secretary” shall also mean the Secretary of the Department of Services to Children, Youth, and their Families for individuals under the age of 18 or otherwise are in custody of the Department of Services to Children, Youth, and their Families or receiving financial assistance from the Department of Services to Children, Youth, and their Families. (17) “Serious bodily harm” means physical injury which creates a substantial risk of death, significant and prolonged disfigurement, significant impairment of health, or significant impairment of the function of any bodily organ. (18) “Voluntary patient” means a person who voluntarily seeks treatment at, and is admitted to, a designated psychiatric treatment facility or hospital for inpatient treatment of a mental condition. (19) “Working day” means any day other than a Saturday, Sunday and legal holiday; and ”day” means a calendar day.

Del. Code tit. 16, § 5002 Determination of mental condition and of procedural compliance as prerequisites to involuntary hospitalization.

No person shall be involuntarily admitted to or confined as an involuntary patient at a designated psychiatric treatment or hospital, and no designated psychiatric treatment facility or hospital shall involuntarily admit or confine as an involuntary patient any person, unless such person is determined to be a person with a mental condition and found to be dangerous to self or dangerous to others in accordance with the procedures prescribed by this chapter, and unless the procedural requirements of this chapter are complied with. A person may not be admitted to or confined as an involuntary patient at a designated psychiatric treatment facility or hospital unless it is determined that such placement is the least restrictive intervention reasonably available and the person has declined voluntary treatment. No person shall be deemed “involuntarily committed” for any legal purpose until the court deems the person an “involuntarily committed” person at the conclusion of a probable cause hearing held pursuant to this chapter.

Del. Code tit. 16, § 5003 Voluntary admission procedure.

(a) The Department may establish, under the direction and supervision of the Delaware Psychiatric Center, criteria for voluntary admissions to designated psychiatric treatment facilities and hospitals that differ from the criteria for involuntary admissions to designated psychiatric treatment facilities and hospitals. (b) A psychiatrist or licensed independent practitioner who is credentialed and authorized by the Division of Substance Abuse and Mental Health may admit to a designated psychiatric treatment facility or hospital for observation, diagnosis, care and treatment any individual who is a person with an apparent mental condition or who has symptoms of a mental condition and who requests admission subject to the payment of charges for care, maintenance and support as provided in § 5020 of this title. (c) Prior to admitting a person on a voluntary basis, the designated psychiatric treatment facility or hospital must notify the person verbally and in writing of the legal consequences of voluntary admission in language that is understandable to the person, and reasonably believe that the person comprehends such consequences, including but not limited to: (1) The person will not to be allowed to leave the hospital grounds without permission of the treating psychiatrist; (2) If the person seeks discharge prior to the discharge recommended by the person’s treatment team, the person’s treating psychiatrist may initiate the involuntary inpatient commitment process if the psychiatrist believes the individual presents a danger to self or danger to others; and (3) Unless the involuntary commitment process is initiated, the person will not have the hospitalization reviewed by the court. (d) The attending psychiatrist shall discharge a voluntary patient when in-patient treatment is no longer clinically indicated. (e) A voluntary patient may make a written request to the attending psychiatrist to be discharged at any time. Upon the receipt of such request, the attending psychiatrist shall discharge the person within 72 hours from the receipt of the request, except if a psychiatrist or licensed independent practitioner certifies that the voluntary patient is currently demonstrating behaviors believed to be dangerous to self or dangerous to others and these behaviors are documented in the medical record, an emergency detention may be initiated for the person. No person may be involuntarily hospitalized unless in compliance with the emergency detention procedures set forth in § 5004 of this title. (f) If any applicant is under the age of 18 years old, the following provisions shall apply: (1) In the case of voluntary admission to a designated psychiatric treatment facility or hospital, consent to treatment may be given only by a parent, legal guardian, or, when the applicant is in DSCYF custody pursuant to Chapter 25 of Title 13, the Department’s Director or Deputy Director of the Division of Family Services, or the Director’s or Deputy Director’s designee. The request for admission to the designated psychiatric treatment facility or hospital must be signed by either the applicant’s parent, legal guardian, or, when the applicant is in DSCYF custody pursuant to Chapter 25 of Title 13, the Department’s Director or Deputy Director of the Division of Family Services. Services, or the Director’s or Deputy Director’s designee. (2) A voluntary patient or the voluntary patient’s parent, legal guardian, or, when the applicant is in DSCYF custody pursuant to Chapter 25 of Title 13, the Department’s Director or Deputy Director of the Division of Family Services, or the Director’s or Deputy Director’s Designee, may make a written request to the attending psychiatrist to be discharged at any time. a. The provisions of subsection (e) of this section shall apply in such instances, except that the voluntary patient’s discharge may be conditioned upon the consent of the voluntary patient’s parent, legal guardian, or, when the applicant is in DSCYF custody pursuant to Chapter 25 of Title 13, the Department’s Director or Deputy Director of the Division of Family Services, or the Director’s or Deputy Director’s designee. b. If the voluntary patient’s parent, legal guardian, or, when the applicant is in DSCYF custody pursuant to Chapter 25 of Title 13, the Department’s Director or Deputy Director of the Division of Family Services, or the Director’s or Deputy Director’s designee, requests the patient’s discharge from a treatment facility against the advice of the treatment team and administrator of the facility, the facility may initiate involuntary treatment procedures as provided for under this chapter. The provisions of this paragraph shall apply as if the patient had made the request. (3) Voluntary outpatient treatment. — A person between 14 and 18 years of age, who is in need of mental health treatment, may request voluntary outpatient treatment from a licensed treatment facility or community provider. If the individual in need of treatment is a minor under 14 years of age, a parent, legal custodian, or legal guardian shall make the request for voluntary outpatient mental health treatment and give written consent for treatment. a. If a minor is 14 years of age or over, then either the minor, or a parent, legal custodian, or legal guardian may give written consent to a licensed treatment facility or community provider for voluntary, outpatient treatment. b. Consent so given by a minor 14 years of age or over shall, notwithstanding the minor’s minority, be valid and fully effective for all purposes and shall be binding upon such minor, the minor’s parents, custodian, and legal guardian as effectively as if the minor were of full legal age at the time of giving such written consent. The consent of no other person or court shall be necessary for the treatment rendered such minor. c. A minor’s consent is not necessary when a parent, legal custodian, or legal guardian of an individual less than 18 years of age provides consent to voluntary outpatient mental health treatment on behalf of the minor. d. A minor, including those age 14 and older, may not abrogate consent provided by a parent, legal custodian, or legal guardian on the minor’s behalf. Nor may a parent, legal custodian, or legal guardian abrogate consent given by a minor age 14 and older on that minor’s own behalf. e. This section does not authorize a minor to receive psychotropic drugs without the consent of the minor’s parent, legal custodian, or legal guardian. Only a parent, legal guardian, or legal custodian may provide consent for the administration of such medication. (4) A psychiatrist designated by the Secretary of the Department of Services for Children, Youth and Their Families may conduct an independent review to determine whether an applicant who receives financial assistance from such Department or who is in the custody of such Department is appropriate for voluntary hospitalization. (g) Notwithstanding any other section of the Delaware Code, the Medical Director of the Department’s Division of Substance Abuse and Mental Health shall have the independent authority to discharge persons at the Delaware Psychiatric Center. (h) The Department will pay for a voluntary admission of a patient to a designated psychiatric treatment facility or hospital pursuant to the same Departmental criteria as an involuntary admission or community placement.

Del. Code tit. 16, § 5004 Emergency detention of a person with a mental condition; justification; procedure.

(a) Any person who believes that another person’s behavior is both the product of a mental condition and is dangerous to self or dangerous to others may notify a peace officer or a credentialed mental health screener or juvenile mental health screener and request assistance for said person. Upon the observation by a peace officer or a credentialed mental health screener or juvenile mental health screener that such individual with an apparent mental condition likely constitutes a danger to self or danger to others, such person with an apparent mental condition shall be promptly taken into custody for the purpose of an emergency detention by any peace officer in the State without the necessity of a warrant. Any such observation shall be described in writing and shall include a description of the behavior and symptoms which led the peace officer or credentialed mental health screener or juvenile mental health screener to such conclusion. The documentation required herein shall set forth any known relationship between the person making the complaint and any other connection to the person with an apparent mental condition and, if known, the name of the nearest known relative. (b) An emergency detention may only be initiated by a credentialed mental health screener or, if the individual is under the age of 18, by a juvenile mental health screener. An individual may be held on an emergency detention if it reasonably appears to a credentialed mental health screener or juvenile mental health screener that the person is acting in a manner that appears to be dangerous to self or dangerous to others. The credentialed mental health screener or juvenile mental health screener shall verify this finding in writing and complete the Department-approved emergency detention form; this documentation shall include the credentialed mental health screener or juvenile mental health screener’s rationale for the detention, including specific information regarding the alleged mental condition and dangerous behaviors observed. Once the emergency detention form is completed, designated transportation personnel shall be directed by the Department to transport the person to a designated psychiatric treatment facility to for an evaluation. The emergency detention does not start until the person is presented to a designated psychiatric treatment facility. (c) An emergency detention will result in admission to a designated psychiatric treatment facility for psychiatric observation, assessment, acute treatment, and any recommendations for referral for other services. Any referral for an emergency detention shall include a review of any advance health-care directive as set forth in this title or any other similar agreement relating to the person’s wishes regarding potential hospitalization, care, treatment, and notifications to others if known to the credentialed mental health screener and available for review at the time of such referral. (d) Individuals under the age of 18 may be emergently detained when the minor’s parent or legal guardian is unwilling to consent to the individual being admitted to a facility voluntarily for assessment or care, or whose parent or legal guardian cannot be identified and located. A psychiatrist designated by the Secretary of the Department of Services for Children, Youth and Their Families may conduct an independent review of a determination that a person under 18 years of age admitted to a designated psychiatric treatment facility or hospital pursuant to an emergency detention is dangerous to self or dangerous to others. (e) Once an individual is emergently detained in a designated psychiatric treatment facility pursuant to subsection (c) of this section, a psychiatrist shall review all documentation, conduct an examination of the individual, and document the findings of examination within the emergency detention time period both in the person’s medical record and the emergency detention findings form. If the examining psychiatrist finds that the individual with an apparent mental condition is not dangerous to self and is not dangerous to others the psychiatrist shall certify these specific findings in writing and the individual who has been emergently detained shall be discharged from custody forthwith. All documentation required by this section will be recorded and retained in the medical record of that individual and reported to the Delaware Division of Substance Abuse and Mental Health, or if the individual is a minor to the Division of Prevention and Behavioral Health Services, upon the discharge of the individual. (f) If, at any time, an individual who is emergently detained agrees to go to a designated psychiatric treatment facility for further observation, a voluntary admission will be sought to fulfill the needed evaluation and the emergency detention order will become void. If a physician affiliated with an emergency department has completed an emergency medicine health assessment, as determined solely by such physician, and refers the patient to a credentialed mental health screener or juvenile mental health screener, with or without consultation with a psychiatrist, such a referral constitutes an appropriate discharge plan and after such discharge the physician affiliated with an emergency department will have no further responsibility for the evaluation and disposition of the patient. (g) In the event that the psychiatrist at a designated psychiatric treatment facility determines that the person who has been emergently detained meets the criteria for further care and treatment and that such required care cannot be provided in an available, less restrictive, more community-integrated setting, such psychiatrist shall immediately initiate the provisional admission process as set forth in § 5005 of this title. Any such determination must be based upon observed and evaluated behavior and, if available, reliable information provided by other sources regarding the person’s mental condition. Any involuntary commitment of said person shall be only to a hospital designated by the Secretary to provide such care and treatment. (h) A designated psychiatric treatment facility that receives a minor on an emergency detention shall promptly make a reasonable and good-faith effort to contact that person’s parent or legal guardian. (i) All professional personnel employed by the State or private providers are mandated to disclose any potential or apparent conflicts of interest regarding their participation in the emergency detention of any individual with an apparent mental condition to any psychiatric facility. Such conflicts of interest shall be disclosed on the emergency detention form and may include, but are not limited to, employment by a privately operated psychiatric facility, a personal relationship with the individual being detained or committed involuntarily, a relationship with family or significant others of the individual being detained or committed involuntarily, or being the victim of a crime by the person being detained or committed involuntarily. (j) No person will be detained or otherwise involuntarily committed to a designated psychiatric treatment facility unless a credentialed mental health screener or juvenile mental health screener determines that such detention or commitment is the least restrictive and most community-integrated means to adequately treat the person that is immediately available. (k) The Department is authorized to establish regulations consistent with this chapter. These regulations shall include rules regarding the disclosure by credentialed mental health screeners and juvenile mental health screeners of potential conflicts of interest.

Del. Code tit. 16, § 5005 Provisional hospitalization by psychiatrist’s certification.

(a) No person will be involuntarily admitted to a hospital as a patient until the person is detained for observation pursuant to the procedure set forth in § 5004 of this title. At the completion of the emergency detention period, the person shall not be admitted to a hospital except pursuant to the written certification of a psychiatrist that based upon the psychiatrist’s examination of such person: (1) Appears to be a person with a mental condition; (2) The person has been offered voluntary inpatient treatment and has declined such care and treatment or lacks the capacity to knowingly and voluntarily consent to such care and treatment; (3) As a result of the person’s apparent mental condition, the person poses a present threat, based upon manifest indications, of being dangerous to self or dangerous to others; and (4) Less restrictive alternatives have been considered and determined to be clinically inappropriate at the present time. (b) The psychiatrist’s certificate shall state with particularity the behavior and symptoms upon which the psychiatrist’s opinion is based, shall include (where available) the name and address of the spouse or other nearest relative or person of close relationship to the alleged person with a mental condition, and shall state that such person is not willing to accept hospital care and treatment on a voluntary basis or that the person is incapable of voluntarily consenting to such care and treatment. The certificate shall also set forth the date of the psychiatrist’s determination. The hospital shall thereupon advise the involuntary patient of the patient’s rights under this chapter in language that is understandable to the individual. Upon completion of the psychiatrist’s certificate, the individual shall be detained for an additional 48-hour period. (c) If the examining psychiatrist at the hospital determines that the involuntary patient no longer meets the criteria for provisional admission, the psychiatrist shall so certify in writing and the hospital shall immediately discharge the person. Prior to such discharge, the hospital shall provide the person with a copy of the certificate stating that the person was not involuntarily committed for any legal purpose. (d) If the person seeks voluntary care and treatment after being provisionally admitted under this section, the provisional admission will terminate and the person shall be voluntarily admitted to a hospital without delay. (e) The 48-hour observation period prescribed in this section shall be referred to as “provisional admission.” An individual who is provisionally admitted pursuant to this chapter shall not be considered “involuntarily committed” for any legal purpose.

Del. Code tit. 16, § 5006 Duties of hospital upon provisional admission.

During the 48-hour period of provisional admission: (1) The hospital shall try to evaluate the involuntary patient to assess the person’s psychological and physical needs, and may provide treatment to the involuntary patient as clinically appropriate and consistent with the State’s Mental Health Patients’ Bill of Rights pending the involuntary patient’s probable cause hearing; (2) A psychiatrist designated by the Secretary of the Department of Services for Children, Youth and Their Families may, at any time prior to the commencement of judicial proceedings to determine the mental condition of a minor or an individual over the age of 18 who is receiving financial assistance or is in the custody of the Department, conduct an independent review of a determination that such a person is a person with a mental condition. If the psychiatrist determines that such person is not a person with a mental condition, the Department may withhold financial assistance for the diagnosis, care or treatment of such person; (3) The hospital shall document in the patient’s medical record whether or not the involuntary patient can afford counsel and an independent psychiatrist or other licensed mental health professional to serve as an expert witness on the individual’s behalf.

Del. Code tit. 16, § 5007 Procedural rights of involuntary patients.

When a designated treatment facility, hospital or outpatient treatment provider seeks to require an individual to be involuntarily hospitalized pursuant to a probable cause hearing or an involuntary inpatient commitment hearing, or seeks to have the individual placed on involuntary outpatient treatment over objection, or engage in a specific mode of treatment without the individual’s consent, the individual shall be entitled: (1) To notice, including a written statement, of the factual grounds upon which the proposed hospitalization, outpatient treatment over objection, or treatment without consent is predicated and the reasons for the necessity of such course of action. (2) To hearings before the court and to judicial determinations of whether or not the individual satisfies the requirements for a probable cause hearing, involuntary inpatient commitment, outpatient treatment over objection, or treatment without consent pursuant to the criteria set out in the relevant sections of this chapter. Such hearings shall be without jury and not open to the public, shall be preceded by written notice to the individual, and the individual shall be entitled to be present at all such hearings. (3) To be represented by counsel at all judicial proceedings, such counsel to be court-appointed if the individual cannot afford to retain counsel; and to be examined by an independent psychiatrist or other qualified medical expert and to have such psychiatrist or other expert testify as a witness on the individual’s behalf, such witness to be court appointed if the involuntary patient cannot afford to retain such witness. (4) To conduct discovery, to summon and cross-examine witnesses, to present evidence on the person’s own behalf and to avail the individual’s own self of all other procedural rights afforded litigants in civil causes. The privilege against self-incrimination shall be applicable to all proceedings under this chapter. (5) To have a full record made of the proceedings, including findings adequate for review. All records and pleadings shall remain confidential unless the court for good cause orders otherwise. (6) To be notified in writing of the right to appeal a decision made by the court pursuant to § 5014 of this title.

Del. Code tit. 16, § 5008 Probable cause complaint.

(a) If an involuntary patient has not been discharged by the hospital by the end of the 48-hour provisional admission period, the hospital shall file a verified complaint for involuntary civil commitment in the Superior Court or in the Family Court if the involuntary patient would otherwise be amenable to Family Court jurisdiction under other provisions of law. The complaint shall set forth in detail facts to show that the hospital, as petitioner, reasonably and in good faith believes that the involuntary patient (who shall be named as respondent) is a person who meets the standard for involuntary inpatient commitment set forth in § 5011 of this title, and who should be continued as a patient at the hospital pursuant to this chapter until the patient is determined no longer to meet the criteria for involuntary inpatient hospitalization. The complaint shall also aver that the involuntary patient has been advised of the patient’s rights under this chapter. Copies of the emergency detention certificate and the provisional admission certificate shall be attached to the complaint. A notarized affidavit indicating that a hospital official has reviewed each complaint shall be filed, with the original copy sent to the court to be maintained in the patient’s file. (b) The hospital’s affidavit filed with the complaint shall indicate whether the involuntary patient is able to afford counsel and whether the patient requested an independent psychiatric witness.

Del. Code tit. 16, § 5009 Probable cause hearing.

(a) Upon the filing of the probable cause complaint the court shall forthwith: (1) Schedule a probable cause hearing to determine whether probable cause exists for the involuntary patient’s confinement, and, where necessary, appoint counsel to represent the involuntary patient. Such probable cause hearing shall be held as soon as practicable, but no later than 8 working days from the filing of the complaint. Hearings may be conducted using electronic means, such as video conferencing. (2) Direct that notice of the probable cause hearing and copies of the pleadings be supplied to the involuntary patient, the patient’s counsel and to the involuntary patient’s spouse, other relative, close personal friend of the patient or any other person identified by the patient, provided that the patient is given the opportunity to agree, prohibit, or restrict the disclosure. (3) Enter such other orders as may be appropriate, including an order authorizing the continued provisional confinement of the involuntary patient until further order of the court. (b) (1) If, pursuant to the probable cause hearing, the court determines that probable cause does not exist for involuntary inpatient commitment, the involuntary patient shall be immediately discharged. (2) If the court determines that probable cause does exist for involuntary inpatient commitment, it shall schedule an involuntary inpatient commitment hearing, pursuant to § 5011 of this title, for the earliest practicable date, and no later than 8 working days after the probable cause hearing; and where necessary, it shall appoint an independent psychiatrist or other qualified medical expert to examine the involuntary patient and act as an expert witness on the involuntary patient’s behalf. Notice of the hearing shall be given to the involuntary patient and the patient’s counsel. (c) If the court determines that probable cause does not exist for involuntary inpatient commitment, but finds that an individual meets the criteria for outpatient treatment over objection, the court may order that an individual be placed on outpatient treatment over objection, pursuant to § 5013 of this title, and the next hearing shall be scheduled for 3 months after the probable cause hearing. The court may only place an individual on outpatient treatment over objection at a probable cause hearing if the issue has been appropriately noticed. (d) For good cause shown, the court may order that judicial proceedings under this chapter take place in the court in and for a county other than the county in which the action was initiated. (e) For purposes of this chapter and for any other legal purpose, no person shall be considered “involuntarily committed” until the court so orders following a probable cause hearing held pursuant to the requirements of this chapter. (f) If the court makes a determination under paragraph (b)(2) of this section or subsection (c) of this section, the court shall order an individual subject to a determination under paragraph (b)(2) of this section or subsection (c) of this section to relinquish any firearms or ammunition owned, possessed, or controlled by the individual. (g) The court may do any of the following through an order of relinquishment issued under subsection (f) of this section: (1) Require the individual subject to a determination under paragraph (b)(2) of this section or subsection (c) of this section to relinquish to a law-enforcement agency receiving the court’s order any firearms or ammunition owned, possessed, or controlled by the individual. (2) Allow the individual subject to a determination under paragraph (b)(2) of this section or subsection (c) of this section to relinquish firearms or ammunition owned, possessed, or controlled by the individual to a designee of the individual. A designee of the individual must not reside with the individual and must not be a person prohibited under § 1448 of this title. The court must find that the designee of the individual will keep firearms or ammunition owned, possessed, or controlled by the individual out of the possession of the individual. (3) Prohibit the individual subject to a determination under paragraph (b)(2) of this section or subsection (c) of this section not to reside with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair or limit the rights, under the Second Amendment to the United States Constitution or article I, § 20 of the Delaware Constitution, of an individual who is not the subject of the court’s order of relinquishment. (4) Direct a law-enforcement agency having jurisdiction where the individual resides or the firearms or ammunition are located to immediately search for and seize firearms or ammunition of the individual subject to a determination under paragraph (b)(2) of this section or subsection (c) of this section if the Department of Justice shows that the individual has ownership, possession, or control of a firearm or ammunition. (h) An individual subject to an order of relinquishment under subsection (f) of this section may seek relief from the order under § 1448A( l ) of Title 11.

Del. Code tit. 16, § 5010 Discharge by the hospital.

Notwithstanding the pendency of the action or any order previously entered by the court, if at any time after the complaint is filed the hospital determines that the involuntary patient no longer meets the criteria for provisional admission or involuntary inpatient commitment, the hospital shall so certify in writing and immediately discharge the person and advise the court of its determination and the discharge. Upon receipt of such certification, the court shall dismiss the action. A person involuntarily hospitalized pursuant to the emergency detention, provisional admission or involuntary commitment sections of this chapter may be discharged pursuant to this section without further order of the court.

Del. Code tit. 16, § 5011 Involuntary inpatient commitment hearing and procedure.

(a) An individual shall be involuntarily committed for inpatient treatment only if all of the following criteria are met by clear and convincing evidence: (1) The individual is a person with a mental condition; (2) Based upon manifest indications, the individual is: a. Dangerous to self; or b. Dangerous to others; (3) All less restrictive alternatives have been considered and determined to be clinically inappropriate at the time of the hearing; and (4) The individual has declined voluntarily inpatient treatment, or lacks the capacity to knowingly and voluntarily consent to inpatient treatment. When evaluating capacity, the court shall consider an individual’s ability to understand the significant consequences, benefits, risks, and alternatives that result from the individual’s decision to voluntarily request or decline inpatient treatment. (b) The court shall set out specific findings of facts and conclusions of law which address each of the required criteria for involuntary commitment and which support its decision to involuntarily commit or discharge the individual. (c) If the court determines that an individual meets the criteria for involuntary commitment, the court shall enter an order of disposition which shall not exceed 3 months based upon the court’s individualized assessment of the facts and circumstances at the time of the hearing. (d) Upon the expiration of the court order pursuant to subsection (c) of this section, if the individual has not been discharged by the hospital, and the hospital believes that the individual continues to require involuntary commitment, the court shall schedule a subsequent hearing which will be held in compliance with § 5007 of this title and this section. The individual shall be entitled to at least 14 working days’ notice of any subsequent hearings. As long as an individual receives involuntary inpatient treatment, the court must convene a hearing in compliance with § 5007 of this title and this section at least once every 3 months to review whether continued involuntary inpatient treatment is necessary. (e) An individual, if represented by counsel, may waive, orally or in writing, any hearing under this section. The waiver must be submitted in writing to the court or be orally presented in open court.

Del. Code tit. 16, § 5012 Waiver of rights; voluntary hospitalization.

(a) An involuntary patient may waive any of the rights provided by this chapter if: (1) The court determines that such waiver is voluntary and with the involuntary patient’s knowing and intelligent consent; or (2) Where the involuntary patient is incapable of knowingly and intelligently consenting, the court, upon application by counsel and after appropriate inquiry and finding of facts, approves such waiver for good cause shown. If the hearing provided for in § 5011 of this title is waived, the court shall enter an order of disposition in accordance with § 5011(c) of this title. (b) If prior to any hearing the court determines that the involuntary patient has knowingly and voluntarily applied for, and has been accepted for hospitalization pursuant to § 5003 of this title, the action shall be dismissed, and § 5003 of this title shall govern. (c) A legal guardian may not waive any right of an adult, including any right related to admission and judicial review, under this chapter.

Del. Code tit. 16, § 5013 Involuntary outpatient treatment over objection.

(a) A person shall be involuntarily committed by the court for outpatient treatment over objection only if all of the following criteria are satisfied by clear and convincing evidence: (1) The person is 18 years of age or older. (2) The person has a documented mental condition. (3) The person is reasonably expected to become dangerous to self or dangerous to others or otherwise unlikely to survive safely in the community without treatment for the person’s mental condition. (4) The person is currently refusing to voluntarily participate in the treatment plan recommended by the person’s mental health treatment provider or lacks the capacity to determine whether such treatment is necessary. (5) The person has a documented history of lack of adherence with recommended treatment for the mental condition, or poses an extreme threat of danger to self or danger to others based upon recent actions, that has either: a. Resulted in a deterioration of functioning that was observed to be dangerous to the individual’s personal health and safety; or b. Resulted in a deterioration of functioning that was observed to be imminently dangerous to self or dangerous to others, including but not limited to suicidal ideation, violent threats, or violence towards others. (6) All less restrictive treatment options have been considered and have either been determined to be clinically inappropriate at this time or evidence is offered to show that the person is not likely to adhere to such options. (b) The court shall set out specific findings of facts and conclusions of law which address each of the required criteria for involuntary outpatient treatment over objection and which support its decision to involuntarily commit or discharge the individual. (c) If the court determines that an individual meets the criteria for involuntary outpatient treatment over objection, the court shall enter an order of disposition which shall not exceed 3 months based upon the court’s individualized assessment of the facts and circumstances at the time of the hearing. (d) The Department is responsible for ensuring the provision of all necessary services and supports to fully implement the court order, or for informing the court as quickly as possible if such services are not available and providing the court with an explanation of why such services are not available and when they are anticipated to become available. (e) Notwithstanding an order entered by the court pursuant to this section, an individual may be discharged by the individual’s treating psychiatrist at any time if the treating psychiatrist determines that the individual no longer meets the clinical criteria for involuntary outpatient commitment. Upon such determination the psychiatrist shall so certify in writing and advise the court of its determination and the discharge. Upon the receipt of such certification, the court shall dismiss the action. (f) An individual or the individual’s counsel may waive, orally or in writing, any hearing under this section. The waiver must be submitted in writing to the court or be orally presented in open court. (g) Should an individual committed by the court to involuntary outpatient treatment over objection engage in behavior in the community that is dangerous to self or dangerous to others, an emergency detention, consistent with § 5004 of this title, may be initiated. No individual may be involuntarily hospitalized unless the individual is initially emergently detained and is given the due process protections provided for in this chapter.

Del. Code tit. 16, § 5014 Appeal; habeas corpus; rules of procedure.

(a) Any party to the proceedings may appeal an order of disposition issued by a Commissioner to either a Superior Court Judge or Family Court Judge as appropriate within 10 days of the entry of such order. The appeal shall not operate as a stay of the order of disposition unless the Commissioner or Judge so directs. A decision by a Superior Court Judge or a Family Court Judge may be appealed to the Supreme Court within 30 days of the entry of such order. The appeal shall not operate as a stay of the order of disposition unless the court or the Supreme Court so directs. (b) After any order of disposition becomes final, the involuntary patient shall be entitled to petition the court for a writ of habeas corpus for release on the grounds: (1) That the proceeding which led to the patient’s commitment was illegal; provided, that that issue has not been previously determined; or (2) That although the original confinement was legal, continued confinement is not warranted. (c) The Superior Court and the Family Court shall adopt such rules of procedure as may be required to implement the procedural requirements of this chapter.

Del. Code tit. 16, § 5015 Enlargement of time.

The court may enlarge the time for the performance of acts by the hospital or respondent’s attorney pursuant to this chapter, and of scheduling hearings thereunder, for good cause shown, for a reasonable period, consistent with the rights of the respondent.

Del. Code tit. 16, § 5016 Payment of transportation and medical costs.

(a) The State Treasurer shall pay peace officers or other transportation providers under contract with the Department of Health and Social Services for transportation services under this chapter at an agreed-upon rate, including a custody fee and mileage traveled. (b) The State Treasurer shall pay third-party medical and dental providers at a contractually agreed-upon rate for services rendered for the medically necessary treatment of persons receiving mental health treatment and services pursuant to this chapter.

Del. Code tit. 16, § 5017 Immunity.

(a) Initial assessment. — No peace officer, medical doctor, credentialed mental health screener, juvenile mental health screener, or facility in which a medical doctor or credentialed mental health screener or juvenile mental health screener practices shall be subject to civil damages or criminal penalties for any harm resulting from the performance of their functions under this section unless such harm was intentional or the result of wilful or wanton misconduct on their part. This immunity is limited to the mental health assessment, resulting clinical decision, and involuntary hold necessary until the person is presented to a designated psychiatric treatment facility that is able to provide such psychiatric health-care services for the emergency detention described in § 5001(8) of this title. (b) Emergency detention. — After the person presents to the designated psychiatric treatment facility and during the emergency detention period described in § 5001(8) of this title, no medical doctor or designated psychiatric treatment facility shall be subject to civil damages or criminal penalties for any harm to the person with a mental condition resulting from the performance of functions under § 5004(e) of this title unless such harm was the result of negligent, reckless, wilful, wanton and/or intentional misconduct. (c) Subsequent care. — After the person is voluntarily admitted, provisionally admitted or involuntarily committed, no peace officer or medical doctor shall be subject to civil damages or criminal penalties for any harm to the person with a mental condition resulting from the performance of the officer’s or doctor’s own functions of this title unless such harm was the result of negligent, reckless, wilful, wanton and/or intentional misconduct on the officer’s or doctor’s own part. (d) Nothing in this section is intended to waive the State’s sovereign immunity or the privileges and immunities set forth at Chapter 40 of Title 10.

Del. Code tit. 16, § 5018 Discharge of patients from hospitals.

(a) Hospitals shall examine every involuntary patient and voluntary patient present in its facility as frequently as practicable, but not less often than every 3 months. If pursuant to such examination a person’s treating psychiatrist determines that a person no longer satisfies the criteria for involuntary hospitalization pursuant to the emergency detention, provisional admission or involuntary court commitment sections of this chapter, or as established for voluntary treatment under § 5003(a) of this title, the patient shall be discharged. A person involuntarily hospitalized pursuant to the emergency detention, provisional admission or involuntary court commitment sections of this chapter may be discharged pursuant to this subsection without further order of the court. (b) The certificate of discharge shall state the basis for the discharge. Prior to discharge, the hospital shall prepare a written continuing care plan developed in consultation with interdisciplinary staff, identified post-discharge community mental health providers and the patient, and, if the patient is a minor, with the patient’s parent or legal guardian. At a minimum, community-based services staff shall be consulted prior to the discharge of patients in hospitals. The continuing care plan shall be consistent with the discharge planning requirements set out in § 5161 of this title, the Mental Health Patients’ Bill of Rights. The continuing care plan shall include: a realistic assessment of the patient’s post-discharge social, financial, vocational, housing and treatment needs; identification of available support services and provider linkages necessary to meet the assessed needs; and identification and a timetable of discrete, predischarge activities necessary to promote the patient’s successful transition to the community-based services system or to another appropriate post-discharge setting.

Del. Code tit. 16, § 5019 Liability for maintenance of patient; collection remedies.

(a) Any adult committed to or placed in a designated psychiatric treatment facility or hospital shall be liable for the cost of care, treatment, or both to the extent authorized by § 7940 of Title 29. If a minor is committed to or placed in a designated psychiatric treatment facility or hospital, liability for costs of care, treatment, or both shall conform to § 9019 of Title 29. (b) The Department of Health and Social Services and Department of Services for Children, Youth and Their Families shall keep an account of the cost of care, treatment, or both and credit against the account all moneys received from the patient or other persons on the patient’s behalf. (c) In the event of nonpayment, the Department of Health and Social Services and Department of Services for Children, Youth and Their Families may pursue collection remedies authorized by §§ 7940 and 9019, respectively, of Title 29.

Del. Code tit. 16, § 5020 Expenses of examination and removal of indigent patients.

The expenses of the examination of an indigent person alleged to be suffering from a mental condition and the transportation of such person, by a peace officer or credentialed mental health screener or juvenile mental health screener to a designated psychiatric treatment facility or hospital able to provide further evaluation or care and treatment, shall be paid by the State Treasurer.

Del. Code tit. 16, § 5021 Veterans Administration hospitals.

The provisions in the Delaware Code pertaining to the admission, commitment, care and discharge of persons diagnosed with a mental condition at state institutions shall apply with the same force and effect to persons entitled to the services of hospitals for people with a mental condition operated by the Veterans Administration. Persons so entitled may be transferred from state institutions to such Veterans Administration hospitals subject to the statutory provisions affording interested parties the right to have the status of the person with a mental condition determined as provided by law.

Del. Code tit. 16, § 5022 Return of patients; order; notice; custody.

(a) If an inpatient of a state-operated hospital escapes or is on unauthorized leave, its director may issue an order for the patient’s immediate rehospitalization. The director or the director’s designee may notify such patient of the existence of a rehospitalization order by any reasonable means of communication open to the director. Such an order, irrespective of the patient’s actual receipt, shall authorize any peace officer to take the patient into custody for rehospitalization. (b) If an involuntarily committed inpatient or a person detained involuntarily under this chapter from a nonstate-operated hospital certified under § 5026 of this title escapes or is on unauthorized leave, that hospital’s director shall immediately notify the Director of the Division of Substance Abuse and Mental Health or the Director’s designee if the patient is 18 years of age or older or the Division of Prevention and Behavioral Health Services if the patient is under 18 years of age. Upon receipt of such notification, the Division Director or the Director’s designee may issue notice and a rehospitalization order in conformity with subsection (a) of this section. Such an order, irrespective of the patient’s actual receipt, shall authorize any peace officer to take the patient into custody for rehospitalization.

Del. Code tit. 16, § 5023 Unwarranted hospitalization in Delaware Psychiatric Center or denial of rights; penalties.

(a) Any person who wilfully causes, or conspires with or assists another to cause: (1) The unwarranted hospitalization of any individual in the Delaware Psychiatric Center under this chapter; or (2) The denial to any individual of any of the rights accorded to said individual under this chapter shall be punished by a fine not exceeding $500 or imprisonment not exceeding 1 year, or both. (b) The Superior Court shall have jurisdiction of offenses under this section.

Del. Code tit. 16, § 5024 Examinations of persons relative to parole, pardon or commutation of sentence in case of certain crimes.

Whenever the Director of the Division of Substance Abuse and Mental Health or the Director of the Division of Developmental Disabilities Services receives a request from the Commissioner of the Department of Correction, relative to parole, pursuant to § 4353 of Title 11, or relative to pardon or commutation of sentence, pursuant to § 4362 of Title 11, for psychiatric examination and psychological clinical studies, and a report containing an opinion of the prisoner’s condition and of the probability of the prisoner’s again committing crimes similar to the 1 for which the prisoner was incarcerated, or other crimes, the Director shall cause such examination and studies to be made at the correctional institution or the Delaware Psychiatric Center, and copies of the report shall be delivered to each member of the Parole Board or the Board of Pardons, as the case may be; and in cases of pardons and commutations of sentence, a copy to the Governor.

Del. Code tit. 16, § 5025 Minors.

(a) Except as otherwise provided, the provisions of this chapter pertaining to the care and release of persons age 18 and older shall apply with the same force and effect to persons under 18 years of age admitted to a designated psychiatric treatment facility or hospital, certified by the Secretary of the Department of Services for Children, Youth and Their Families as being appropriate for the diagnosis, care, and treatment of persons with mental illness under 18 years of age. (b) All substantive and procedural rights provided to individuals pursuant to this chapter shall automatically transfer to the individual’s parents or legal guardian if the individual is a minor, unless specifically stated otherwise in this chapter. Even when such a transfer of rights occurs, all reasonable efforts shall be made to ensure the relevant rights and procedures are explained to the minor in language understandable to the minor. (c) A psychiatrist or Emergency Detention of Juveniles Review Board designated by the Secretary of the Department of Services for Children, Youth and Their Families may conduct an independent review of a determination that a person under 18 years of age admitted to a designated psychiatric treatment facility or hospital pursuant to an emergency detention on the basis of the appearance of a mental condition, and whose mental condition causes the individual to be dangerous to self or dangerous to others. Such review may include an examination of the determinations made by juvenile mental health screeners in individual cases or in aggregate. The Department for Children, Youth and Their Families is authorized to establish regulations concerning the process and criteria for such determinations.

Del. Code tit. 16, § 5026 Additional facilities for adults.

The Secretary of the Department of Health and Social Services, upon voluntary application of a private or public hospital, may certify such hospital as an appropriate facility for the detention, diagnosis, care and treatment of adults with a mental condition under this chapter. If so certified, on a case-by-case basis, any such hospital shall be authorized to serve in addition to the Delaware Psychiatric Center under this chapter.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title16/c050/index.htmlFetched: 6/28/2026