Ben and Terri were worried about their brother, Spencer. Recently, Spencer claimed the government was after him, as evidenced by the helicopter flying over his house that had sprayed a cancer-producing substance over his property. Over the past few months Spencer had accumulated an arsenal of weapons – guns, knives, even a machete. Alternately, he expressed fear that someone was trying to kill him and a desire to end his own life. Can Ben and Terri successfully commit Spencer for treatment against his will based on his mental health?

The Process for Seeking Involuntary Mental Health Commitment

The Affidavit Ben and Terri will need to make an application to the court with an affidavit stating their personal knowledge of the disturbing behaviors that Spencer has exhibited reflecting his mental condition. The application and affidavit should state that they believe Spencer is mentally ill, that he evidences a substantial risk of harm to himself or others and that this risk is imminent if he is not restrained immediately. The affidavit should also include a description of the specific recent acts, behavior or threats upon which their opinion is based. 

2. Order by the Court

A judge will review the application and affidavit and, if convinced an emergency exists, will order Spencer’s immediate detention. This order will give a peace officer the authority to escort Spencer to a mental hospital or other facility where treatment can be arranged. 

3. Doctor’s Examination

The law requires that a doctor must examine Spencer within 24 hours after being detained, unless the period begins on a Saturday, Sunday or legal holiday. In that case, the exam must take place by 4:00 pm. the following business day. Based on the doctor’s recommendation in a Certificate of Medical Examination, Spencer will either be released or retained by the mental health facility based upon an Order for Protective Custody (OPC).

Spencer’s Rights in the Process

4. The Hearings

Spencer will be entitled to a probable cause hearing before a judge or magistrate within 72 hours after the issuance of the OPC. At this hearing, Ben and Terri have to show probable cause why Spencer should remain in protective care until a commitment hearing. If Spencer is held, within 7 to 10 days of the issuance of the OPC, he will be entitled to a second hearing called a commitment hearing. At the commitment hearing, a judge or, if Spencer requests one, a jury will determine whether he will be committed to a mental health facility for 90 days.

5. Evidence

The evidence presented at the probable cause hearing is usually the Certificate of Medical Examination and any affidavits filed with the application. At the commitment hearing, evidence of the examination by a second doctor with a second Certificate of Medical Examination is required. The examining doctor together with Ben and Terri (because they signed and filed the affidavit) or some other person with personal knowledge must be present and testify at the commitment hearings.

6. Representation

Spencer will have the right to hire his own attorney to represent him at these hearings. However, if he does not, the court will appoint a lawyer for him, within 24 hours after Ben and Terri have filed the application for court-ordered mental services.  

Results of Commitment Hearing

Depending upon the findings at the commitment hearing, Spencer will either be released or committed for up to 90 days in a mental health facility. Ben and Terri should be aware, however, that the commitment process is a temporary solution to the problem. According to a recent document prepared by the Houston Bar Association Elder Law Committee, it is rare for a patient to be held the entire 90 days before being discharged by a treating physician.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives and practices in beautiful Somervell County, near Chalk Mountain.