AOT Procedural Questions about Court Hearing Process
Who is responsible for the filing of a petition if an individual is currently in the hospital?
This may vary among counties. Each LGU has developed a protocol with the community hospitals to determine whether or not the hospital will act as petitioner and provide the examining physician and hospital attorney or whether the county will retain that responsibility.
Who is responsible for the filing of a petition if an individual is currently in a state psychiatric facility?
It has been agreed with many county directors that state psychiatric centers will accept responsibility for pursuing initial petitions for appropriate candidates who are receiving inpatient treatment. The state psychiatric center will provide the examining physician and the local Assistant Attorney General will provide legal representation. Several counties, however, have chosen to act as petitioner even when the patient is currently on the inpatient service of an OMH facility. In these instances, the county and the OMH facility work cooperatively toward pursuit of an AOT order. In either case, all hospitals need to notify the DCS of intended AOT petitions.
What specifically needs to be filed with the court to begin the process?
The petition, which is a formal statement of facts demonstrating that the person meets the criteria for AOT, must be accompanied by the affidavit of an examining physician. The affidavit must show that the physician examined the person within 10 days of the filing of the petition, and that he or she meets the criteria for AOT. A proposed treatment plan needs to be among the documentation submitted to the court in every case in with the LGU is the petitioner. Several other procedural forms must also be filed and standard fees must be paid at the time of filing. All necessary forms are available online: http://www.omh.ny.gov/omhweb/Kendra_web/Kforms.htm.
What if the subject of the petition has refused examination?
The physician’s affidavit must state that attempts at examination were made but were unsuccessful in that the subject of the petition refused or somehow avoided the examination. Further, the physician’s affidavit must indicate that he/she believes the individual meets the AOT criteria. The court may request that the subject consent to an examination by a physician assigned by the court. If the subject still refuses and the court finds reasonable cause to believe the allegations in the petition are true, the court may order peace or police officers to transport him/her to a hospital for examination (not to exceed 24 hours) to determine his/her eligibility for AOT.
Who gets copies of the petition?
People who need to be served legal process include:
- The person who is the subject of the petition;
- The nearest relative;
- Mental Hygiene Legal Service or other counsel representing the subject;
- Any health care agent appointed by the person in a health care proxy, if known;
- The OMH AOT Program Coordinator at the Field Office in your region; and
- The appropriate county (or city of New York) mental health director.
If the subject is presently in your county but will be residing in a different county, it is strongly recommended that the receiving county mental health director and OMH AOT Program Coordinator also be served.
What happens at the court hearing?
The court is required to set a hearing date that is no more than 3 days after the court receives the petition. (The hearing may be adjourned to an alternate date if the court finds good cause for doing so.) The court will hear testimony of the physician whose affidavit was filed with the petition, and may also consider testimony of the petitioner and the subject of the petition. Other forms of admissible evidence may be considered as well. If the court determines by clear and convincing evidence that the criteria for AOT are met, and a written treatment plan has been filed with the court, an order for assisted outpatient treatment is issued. The initial order cannot exceed 6 months.
How long is the court hearing?
The hearing can last anywhere from a few minutes to several hours.
Can the court’s decision be appealed by either side?
Yes, either side can use the appeal process.
Do all petitions end up as court orders?
No. Some petitions are withdrawn prior to the hearing and some are denied following a hearing. If after hearing all relevant evidence, the court finds that the subject of the petition does not meet the criteria for assisted outpatient treatment, the court shall dismiss (deny) the petition.