Disabilities Guidebook: The Admission, Discharge and Transfer of Persons with Mental Illness

Disabilities Guidebook: The Admission, Discharge and Transfer of Persons with Mental Illness

Last updated: August 2010

(Chapter 11 Section 1 from Guidebook of Laws and Programs for People with Disabilities)

 


The Mental Health and Developmental Disabilities Code: Chapter III

What Is It? This is an Illinois law which governs the procedures for the admission, transfer and discharge of persons with mental illness to and from mental health facilities.

What Is Its Purpose? To make sure that persons with mental illness receive appropriate care in the least restrictive setting.

Who Can Benefit? Illinois residents with mental illness.

I. Your Legal Rights

The Mental Health and Developmental Disabilities Code (MHDD Code) is an Illinois law which governs the procedures by which a person may be admitted to and discharged from mental health facilities. The MHDD Code also contains procedures to protect the rights of persons living in mental health facilities.

The term "mental health facility" means a hospital, institution or other facility which provides treatment to people with a mental illness. This includes both state and privately operated facilities.

Types of Admission to a Mental Health Facility
1. Voluntary Admission. If you are a person with a mental illness, you can be admitted as an inpatient to a mental health facility at your own request. This is called voluntary admission or informal admission.

2. Involuntary Admission. You can be admitted to a facility against your wishes when a court finds that you need inpatient care. This is called admission upon court order. In an emergency, you might be admitted against your wishes for a short period even without a court order. This is called emergency admission by certification. Finally, there are special rules governing the admission of children under age 16.

This section of the guidebook will explain your rights in connection with each of these types of admission procedures. These rules govern both state- operated mental health facilities and private hospitals and other mental health institutions.

Rules Which Apply to All Types of Admissions

In order to make sure that all recipients of mental health treatment are aware of their rights, the MHDD Code requires that certain steps be taken upon admission.

Notice of Your Rights
At the time that you are admitted, the facility must give you a written summary of your rights. For more information on your rights under the MHDD Code, see the section in this Chapter titled "Rights of Recipients of Mental Health and Developmental Disabilities Services."

Notice of the Availability of Assistance from the Guardianship and Advocacy Commission
Whenever a person age 12 or over is admitted, the facility must give him or her the address and phone number for the Guardianship and Advocacy Commission (GAC). The GAC is an organization that advocates for the rights of people with disabilities. If you request, the facility must help you to contact the GAC. For more information about the GAC, see the section of this guidebook titled "Legal Advocacy for People with Disabilities" in Chapter 16, Miscellaneous Rights.

Change in Status
The facility must let you know whenever they seek to change the legal status of your admission. It must give you a copy of legal papers relating to the change of status, and notify you that the GAC may assist you.
Example: If you voluntarily admit yourself, but the facility then tries to get a court order to force you to remain in the facility, the facility must give you this information.

Notice in Your Own Language
Whenever the facility is required to inform you of your rights or of some legal action, it must give you the notice in your own language, if you do not communicate in English. You will receive court pleadings and related documents only in English.

Treatment Plan Upon Admission.
Within 3 days after you are admitted, the facility must establish an individual services plan to make sure that you are receiving appropriate care.

The term "individual services plan" means a written plan which includes an assessment of your treatment needs, a description of the services you will receive, the goals of each type of service, the role of your family in implementing the plan, the amount of time that you will need services to meet your goals, and the name of the person or persons who are responsible for providing the services required by the plan.

The facility must review and update the individual services plan on a regular basis to make sure that it continues to meet your needs.

Voluntary Admission and Discharge of Adults

Voluntary Admission of Adults
You have the right to voluntarily seek inpatient admission to a mental health facility. You may seek admission if you believe that you are in need of this type of treatment. However, it is very important to understand that after you are admitted, you may not be able to walk out at any time you wish. This is explained more below.

The vast majority of admissions to mental health facilities are voluntary. However, in many such cases, a person agreed to "voluntarily" enter the facility only because the person was threatened by police, family members, doctors, or others, with being involuntarily admitted.

You have some rights to prevent doctors from improperly pressuring you into voluntarily admitting yourself. It is unlawful for a doctor to threaten to have you involuntarily admitted if you refuse to admit yourself, unless:

  • The doctor truly intends to take steps to have you involuntarily admitted; and
  • The doctor informs you that you will be entitled to a court hearing to fight the involuntary admission, and the right to be represented by a lawyer at the hearing.

To be voluntarily admitted, you must complete a written application on the form provided by the facility. If you so request, another adult acting on your behalf may complete the application.

If you are age 16 or 17, you have the right to seek voluntary admission as an adult. However, the law requires that the facility notify your parents or legal guardians immediately if you are admitted.

Determination of Need for Residential Mental Health Care
A facility will admit you only if it is determined that you need inpatient treatment. In privately operated mental health facilities, the staff at the facility makes this determination.

If you seek admission to a state operated mental health facility, the process of determining whether you require inpatient care is handled differently. In many parts of the state, the Illinois Department of Human Services (IDHS) has entered into an agreement with a local community mental health center. If IDHS has such an agreement with the community mental health center in your area, the facility may admit you only if staff at the community mental health center has personally examined you within the 3 day period before your admission and they certify that you need inpatient mental health treatment.

Discharge Following Voluntary Admission
If you are voluntarily admitted to a facility, you can ask at any time to be discharged. You must make your request for discharge in writing. Upon receiving your request, the facility must discharge you at the earliest appropriate time, not to exceed 5 days, excluding Saturdays, Sundays, and holidays.

The facility does not have to discharge you if, within 5 days of your request for discharge, they have filed a court petition alleging that you are "a person subject to involuntary admission" (see the definition of this term below). If this occurs, there will be a court hearing (see below). The facility may continue to hospitalize you while waiting for this hearing. Therefore, it is not unusual for a "voluntarily admitted" patient to be involuntarily hospitalized for two or more weeks after requesting discharge.

Informal Admission of Adults

"Informal Admission" is another way that you can voluntarily enter a mental health facility. It operates much the same as a "Voluntary Admission," but it differs in that you have the right to be discharged much more quickly. All of the above rules relating to Voluntary Admissions apply, except that:

  • You do not need to make a formal application for admission;
  • Once admitted, you have the right to request that you be discharged immediately at any time during normal daytime business hours.

If you request an "informal admission," but the facility decides to admit you pursuant to the "voluntary admission" process instead, the facility must document in your records why informal admission is not appropriate for your care. It is very important that you make sure that you know whether your admission is "informal" or "voluntary."

Involuntary Admission of Adults

Involuntary Admissions -- In General
You should not be forced to enter a mental health facility against your wishes unless you are a "person subject to involuntary admission." This is true whether you are hospitalized due to an Emergency Certification or a Court Order (see below).

The term "person subject to involuntary admission" means:
A person with mental illness who, because of that illness, is expected to cause serious harm to himself or to others in the near future; or
A person with mental illness who, because of that illness, is unable to take care of his physical needs so as to cause a risk of serious harm.

The Process of Emergency Admission By Certification
If you need immediate hospitalization to protect yourself or others from physical harm, you may be admitted pursuant to the "Emergency Admission by Certification" process. The following steps must be taken:

The Petition. First, someone must present a Petition to the director of a mental health facility in the county where you live or are now located. A person age 18 or over must sign and swear to the petition. Among other things, the petition must explain how you are a "person subject to involuntary admission." It should include the time and place of any threats or dangerous actions. The person who is filing the petition must state whether he or she has any legal or financial involvement with you.

The Certificate. The person filing the Petition should attach a written statement, called a "certificate," from a doctor or other highly trained mental health professional. The doctor must have personally examined you within the past 72 hours before preparing the certificate. The certificate must state that you are a person subject to involuntary admission and that you need immediate hospitalization. It should describe the facts relied on by the doctor in making this decision.

Admission With No Certificate. If it is impossible to get a certificate because no doctor can be found who has or will examine you, you can be involuntarily admitted upon the filing of the petition alone without the certificate. After reviewing the petition, a judge can issue an order which allows law enforcement officers to take you to a facility to be examined. In this case, the facility must release you after 24 hours of your admission, unless a certificate has been filed within that time. It is a very common practice to involuntarily admit patients without first obtaining a certificate.

If your admission is sought to a state operated mental facility. If IDHS has entered into an arrangement with the community mental health center in your area, the person presenting the petition for involuntary admission should present it to the mental health center. You may be admitted to the state facility only if staff at the mental health center has personally examined you within the 3 day period before your admission and certifies that you need inpatient mental health treatment. If you need immediate admission and the mental health center has not yet had the opportunity to examine you, you can be admitted at once. Staff from the mental health center must come to examine you within 24 hours of your admission.

Being Taken Into Custody. Once the petition and certificate are filed with the facility director (or the petition alone if a certificate cannot be obtained), the county sheriff or other law enforcement officers are legally authorized to take you into custody and arrange to have you transported to the mental health facility.

Examination Upon Admission. Within 24 hours of your admission, not counting Saturdays, Sundays and holidays, the facility must have you examined by a psychiatrist or other highly trained mental health professional. This is to determine whether you are a person subject to involuntary admission. If no certificates accompanied the petition for admission, then you must be evaluated by two separate examiners. The examiners cannot be the same people who signed the certificate for your admission.

The examiner must clearly explain to you that the purpose of the examination is to determine whether you need immediate admission to protect yourself or others from harm. The examiner must inform you that you do not have to say anything at the exam, and that anything that you do say may be disclosed at a court hearing.

The facility must release you if two certificates are not issued within 24 hours after your admission.

Beginning Treatment. The facility may begin treatment procedures immediately upon your admission. However, if you were admitted without a certificate, the facility can begin treatment only after the facility receives a doctor's certificate for admission. They must inform you of your right to refuse to take medications. If you refuse medications, the facility can administer them to you only if this is necessary to prevent serious harm to yourself or others.

Notifications. Within 12 hours of your admission, the facility must provide you with a copy of the petition and must provide you with the address and phone number for the Guardianship and Advocacy Commission. The facility must ask you whether you want anyone to be notified of your admission, and they must notify at least two of the people you name. If you have a guardian or lawyer, the facility must send them a copy of the petition within 24 hours of your admission. The facility must also allow you to make and complete at least 2 phone calls to any person you choose.

Starting Legal Proceedings. Within 24 hours of your admission, not counting Saturdays, Sundays and holidays, the facility director must file a copy of the petition and the certificate(s) with the court in the county where the facility is located. There should be a court hearing within five days of the filing of the petition, not counting Saturdays, Sundays and holidays. Notice of the time and place of the hearing must be sent to you, your spouse, your parents if you are under 18, and to the other people that you told the facility to notify upon your admission. The court hearing procedures are explained below.

The Process of Admission by Court Order When You are Not Already Admitted by Certification
In cases where someone seeks to have you involuntarily admitted, but you do not pose an immediate danger to yourself or others, you are entitled to have a court hearing before you are admitted.

The Petition. In these cases, someone must file the petition directly at the court in the county where you reside or where you are located. A person age 18 or over must sign and swear to the petition. Among other things, the petition must explain how you are a "person subject to involuntary admission." It should include the time and place of any threats or dangerous actions. The person who is filing the petition must state whether he or she has any legal or financial involvement with you. If a certificate has already been prepared by a doctor or other mental health professional, it is filed with the petition.

Mental Health Examination or Hearing. Upon the filing of the petition and any certificates, the judge will review the documents. If the petition is accompanied by at least two certificates, the judge will schedule a hearing to be held within 5 days, not counting Saturdays, Sundays and holidays. If only one certificate was filed with the petition, the judge will order you to submit to an examination by a psychiatrist or other mental health professional. If no certificates are with the petition, the court will order you to submit to two examinations.

You are entitled to receive a copy of the petition and the court order requiring you to submit to an exam at least 36 hours before the examination. If you have a guardian or an attorney, a copy must be provided to them as well.

When you go to the examination, you are entitled to be accompanied by a relative, friend or attorney. In general, you are entitled to remain in your home while you are waiting for the examination. However, if you refuse to voluntarily attend the exam, the judge can order that you be taken to a mental health facility by law enforcement officers and held there to be examined. Even if you have not been asked to attend an exam, the court, based on the facts alleged in a petition, may issue an order to have you picked up by a police officer and taken to a facility for an examination. In this case, the facility cannot hold you for more than 24 hours of your admission unless a certificate has been filed within that time.

The examiner must clearly explain to you that the purpose of the examination is to determine whether you meet the definition of "a person subject to involuntary admission." The examiner must inform you that you do not have to say anything at the exam, and that anything that you do say may be disclosed at a court hearing.

If you are admitted to a mental health facility for the purpose of an exam, the facility must release you within 24 hours. However, the facility is not required to release you if, as a result of the information obtained by the exam, they believe that you pose an immediate threat of harm to yourself or others. In that case, they should start emergency proceedings to admit you by certification.

Scheduling a Court Hearing. The judge will schedule a court hearing on the petition as soon as two certificates are filed which indicate that you are "a person subject to involuntary admission." The hearing will be held within five days after the filing of the second certificate, not counting Saturdays, Sundays and holidays. Notice of the hearing must be sent to you, your lawyer and guardian if any, your spouse, and your parents if you are under 18.

Following the examination, you have the right to return to your home until the time of the hearing. However, in actual practice, almost all persons are involuntarily admitted following the examination, and they remain in the facility while they are awaiting the hearing. If you are permitted to return home while awaiting the hearing, the judge can order a law enforcement officer to take you to the hearing if the judge thinks this is necessary for your safety or to make sure you attend.

Court Hearing Procedures for Involuntary Admission and Discharge

Involuntary admission to a mental health facility is a serious intrusion into your right to control your own affairs. Therefore, there are rules governing the court proceedings to make sure that you receive a fair hearing.

In order to avoid the court proceedings, you have the right to ask that you be informally or voluntarily admitted for hospitalization. You can make this request at any time before a final order is entered in the court proceedings. However, even if you make this request, the judge or facility director may reject the request if they feel that court ordered hospitalization is necessary to provide all of the services that you will need.

Place of the Hearing
If you have already been admitted to a mental health facility as a result of emergency certification, the hearing will be held at that facility, if this is practical. However, you or any other party are entitled to ask that the hearing be held somewhere else. If your home is in a different county than the facility to which your admission is sought, you can ask that the hearing be held in your home county.

Time of the Hearing
The hearing is initially scheduled to be held within 5 days of the filing of the second certificate. However, you and the other parties have the right to ask that the hearing be postponed if more time is needed to prepare. The hearing cannot be postponed more than 15 days, except upon your request.

Public Access to the Hearing
In general, all court hearings are open to the public. However, the court hearings in these cases can be closed to the public, if you or any other party so requests. On the other hand, the hearing must be made open to the public if you so request. If the hearing is closed to the public, then all of the court documents and transcripts are sealed.

Representation at the Hearing
You are entitled to be represented by a lawyer at this hearing. If you cannot afford a lawyer, or if you are unable to hire a lawyer by the time of the hearing, the judge must appoint a lawyer to represent you. If you are unable to afford a lawyer, the judge will appoint a lawyer who is employed by the Guardianship and Advocacy Commission, if such a lawyer is available. If not, the judge may appoint a lawyer from the county Public Defender, and if none is available the judge may appoint a private attorney. The hearing may be postponed at your request in order to give your appointed lawyer time to prepare.

The judge will not allow you to represent yourself at the hearing unless you have first consulted with a lawyer. Even then, the judge will allow you to proceed without a lawyer only if the judge decides that you are able to make an informed decision about how to handle the case.

Independent Psychiatric Evaluation Before the Hearing
You are entitled to be examined by a psychiatrist or some other medical expert of your choice. This person can then submit a report to the court giving his opinion about whether you are "a person subject to involuntary admission." The state may pay for this exam if you are poor. If you cannot find a medical expert to perform the exam, the judge can appoint an independent expert.

The judge can order you to submit to further examinations by other mental health professionals selected by the judge. If this is done, they must file a report of their findings, and you are entitled to a copy of the report.

Hearing Procedures
You must personally attend the hearing, unless all of the following are true:

  • Your lawyer waives this right;
  • The judge determines that you are able to understand and rationally decide whether to attend the hearing; and
  • The judge decides that attending the hearing could cause you serious physical or emotional harm.

If you refuse to attend the hearing, the hearing will be held without you.

You are entitled to have the case decided by a 6 person jury, or you may choose to have the case decided by a judge. A transcript must be made of everything said at the hearing. You can be found to be "a person subject to involuntary admission" only if the judge or jury decides that there is clear and convincing evidence to support this conclusion.

The Court Order
If the judge or jury finds that you are "a person subject to involuntary admission," then the judge must enter a court order, called a disposition. This order indicates the type of treatment you should get and where it will be provided. The order must provide for the least restrictive form of treatment that is adequate for your needs.

Before the judge enters a disposition order which requires you to be hospitalized at a mental facility, the judge must consider whether it is possible to provide you with appropriate treatment in a non-institutional setting. This is called "alternative treatment."
Example: The judge could order you to attend intensive out-patient counseling, take certain medications, and require that you reside in the home of a relative or in some other supervised setting.

If you fail to comply with a court-ordered alternative treatment or if you are not getting the level of care you need, the judge can revoke the alternative treatment and require that you be admitted to a mental health facility. You are entitled to advance notice and an opportunity to respond if the judge decides to revoke an alternative treatment disposition.

If you are not satisfied with the terms of your alternative treatment, you may at any time file a motion in court asking the judge to change your treatment program.
Example: You could ask the judge to place you in a different alternative treatment program, place you in the custody of a different person, or admit you to a mental health facility.

How Long the Court Order Will Remain in Effect
The court disposition order can require you to be hospitalized or to receive alternative treatment for a period of up to 90 days. If the facility director believes that you continue to be "a person subject to involuntary admission" and need continued treatment for more than 90 days, the facility must file a new court petition and two new certificates. You will be entitled to another court hearing under the procedures explained above. The court can then authorize an additional 90 day period of involuntary treatment.

After the first two 90 days periods of involuntary treatment, the court can order further 180 day periods of involuntary treatment as many times as necessary. Before each order for further treatment is entered, the facility must file a new court petition and two new certificates, and you will be entitled to another court hearing under the procedures explained above.

If the facility does not file a new petition before the period covered by the current court order expires, they must release you from care.

The Treatment Plan
Upon your admission, the facility must prepare your "treatment plan." This plan must contain the following information:

  • An assessment of your treatment needs;
  • A description of the services you will receive and the goals of each type of service;
  • The role of your family in implementing the plan;
  • The amount of time that you will need services to meet your goals;
  • The name of the person or persons who are responsible for providing the services required by the plan;
  • An evaluation of your progress since you entered treatment;
  • A description of your behaviors or conditions and any other reasons which the facility believes demonstrate that you continue to be in need of involuntary treatment.

If the facility director is unable to supply any of the information required in the treatment plan, the facility must prepare a written explanation why the information is not provided, what steps are being taken to obtain the information, and when it is expected to be available.

Within 30 days after your admission to the mental health facility, the facility director must file a copy of the treatment plan with the court. The facility must send a copy to you and your attorney, your guardian (if any), and the State's Attorney.
The purpose for preparing and distributing the treatment plan is to allow all of these parties to have a better opportunity to determine that you are receiving proper care and that you are not unnecessarily hospitalized.

Review of the Treatment Plan
If you believe that your treatment plan lacks all of the required information, you or anyone acting on your behalf may file a request asking the judge to review the plan. Such a request to review your treatment plan can be made 30 days after the date of your initial commitment, 90 days after the date of your initial commitment, and 90 days after the date of any extension of your period of commitment. If the judge decides that the plan is lacking necessary information, he or she will order the facility to revise the plan to include the necessary information.

Court Hearing to Modify the Treatment Plan
If you disagree with your treatment plan in any way, you are entitled to have a court hearing to review the plan. At the hearing you can ask the judge to order that you receive different or additional forms of treatment. You may present evidence and have witnesses testify on your behalf at the hearing.

You can also ask the judge to order that an independent examination be performed on you by a psychiatrist or some other medical expert of your choice. This person can then testify about whether he or she believes that the treatment plan is appropriate for your needs. However, the judge is not required to order that this independent examination be performed unless you first convince the judge that it is not possible to effectively evaluate the treatment plan without the additional information.

Discharge Following Involuntary Admission
After a court disposition order has been entered which requires you to be hospitalized or to enter alternative treatment, there are two different ways that you can be discharged. First, a court can order that you be discharged. Second, you can be discharged by the facility director at any time that he or she determines that you no longer require care.

Discharge By Court Order. You may file a petition for discharge at any time. You may file the petition in the county where you now live. The petition must explain in detail when and why the initial disposition order was entered, and the reasons why you believe you are now entitled to be discharged.

You are entitled to have a court hearing within 5 days after the filing of your petition, excluding Saturdays, Sundays, and holidays. The same rules described above which apply to court hearings to have you admitted also apply to court proceedings for discharge. You have the right to be represented, to have an independent evaluation, and to have a trial by jury.

If the judge or jury finds that you are no longer "a person subject to involuntary admission," then the facility must release you from hospitalization or alternative treatment. If you have a legal guardian, the judge also has the authority to end the guardianship if he or she finds that you no longer need a guardian.

If the judge or jury finds that you continue to be "a person subject to involuntary admission," then the judge can require you to remain hospitalized, or the judge can require changes in your treatment plan, or can require you to enter a different form of alternative treatment.

Discharge by Facility Director. The director of the mental health facility or alternative care program may discharge you from treatment at any time that he or she determines that you are no longer "a person subject to involuntary admission." If the director believes that you could still benefit from treatment, the director must inform you of your right to remain in treatment as an informal or voluntary recipient of care.

The facility director must give you written notice of any decision to discharge you, at least 7 days in advance. The director also must give notice to your lawyer, your guardian if any, and your parents if you are under 18.

If the facility director decides to discharge you, he or she may notify the State's Attorney of the county where you lived before your admission and of the county where the court hearings were held. Those state's attorneys may take legal action to seek your continued hospitalization if they disagree with the facility director's decision to discharge you.

Special Rules Concerning the Admission and Discharge of Children

There are special rules governing the hospitalization of children. This is because a child's parents or legal guardian have a legal right to have input into whether a child is hospitalized.

Voluntary Outpatient Care for Minors
Any child age 12 or older may receive outpatient counseling and psychotherapy upon the child's own request. The child's parent or guardian must not be informed that the child is receiving treatment without the child's consent. However, the facility director may disclose the treatment to the child's parents if he or she believes that disclosure is necessary and the child is informed of the intention to notify the child's parents.

If the treatment has not been disclosed to the child's parents, a child under age 17 may receive no more than 5 treatment sessions lasting not more than 45 minutes each. A child's parents are not responsible for the costs of any treatment rendered without the parent's knowledge and consent.

Voluntary Admission of Minors Upon the Minor's Request
Any child age 16 or over may voluntarily admit himself to a mental health facility. The procedures are the same as those which apply to the voluntary admission of adults as described above. The facility must notify the child's parents or legal guardian of the admission.

Voluntary Admission of Minors Upon the Parent's or Guardian's Request
A child's parent or legal guardian may seek to voluntarily admit a child to a mental health facility for inpatient care. If the child does not have a parent or guardian, or the parents or guardian cannot be found, some other person who is providing for the care of the child can make the request for admission.

Certification Before Voluntary Admission of a Child
Before the child may be voluntarily admitted, the child must be personally examined by a psychiatrist, clinical psychologist, or clinical social worker. The examiner must certify in writing that the child has a mental illness or emotional disturbance of such severity that hospitalization is necessary and the child is likely to benefit from inpatient treatment. The examiner also must state the reasons for this conclusion and explain why a less restrictive form of treatment is not appropriate. This written statement is called a certificate.

Emergency Admission of Minors
In an emergency which requires the immediate hospitalization of a child, a minor can be admitted without first presenting the certificate described above.

The request for emergency admission may be made by the child's parent or legal guardian. If the child does not have a parent or guardian, or the parents or guardian cannot be found, some other person over age 18 who is providing for the care of the child can make the request for admission. Any police officer who has personally observed the child's behavior also can file the request for emergency admission.

If the child is admitted by someone other than the child's parents or guardian because they cannot be located, the facility must make diligent efforts to contact the parent or guardian. If the parents or guardians cannot be located within 3 days after admission, not counting Saturdays, Sundays and holidays, a court petition will be filed to have the child declared to be a ward of the State.

A child may be admitted in an emergency if the child's parents or legal guardian can be located but they refuse to consent to the admission. In this case some other person over age 18 can make the request for admission. The parent or guardian has the right to take legal action to seek the child's discharge. This is called an objection to admission (see below).

Certification After Emergency Admission of a Child
Whenever a child is admitted by the emergency admission procedure, a psychiatrist or other mental health professional must personally examine the child within 24 hours of admission. The examiner must prepare a written certificate which states that the child needs hospitalization. The facility must release the child if a certificate is not issued within 24 hours of admission.

Review to Determine Need for Continuing Treatment of a Minor
Within 30 days after the admission of a minor, the facility director must review the child's treatment record to determine whether the child still needs to be hospitalized. In making this decision, the facility director must consult with the child's parents or guardian or the person who admitted the child. If continued hospitalization is found to be necessary, the director must obtain the permission of the parent or guardian.

This same procedure must then be repeated every 60 days thereafter. If the child's parent or guardian refuses to give permission for continued hospitalization, then the facility must consider this to be a request for discharge. The rules concerning the discharge of a minor are explained below.

Admission to a Facility Just to Examine the Child
In cases where the extent or nature of a child's illness is not known or it is not clear that a child needs hospitalization, a child may be admitted to a mental health facility only for the purpose of performing an examination.

In order to admit a child for the purpose of examination, any of the following persons must file a petition in Illinois Circuit Court: the child's parents, guardian, or other person who is providing for the child's care. The judge will order that the child be admitted for the purpose of evaluation only if the evidence shows that it is not feasible to perform the needed evaluation in a less restrictive environment. The judge may order a law enforcement officer or other person to take the child into custody and to transport the child to a facility to be examined.

Objections to Admission of a Child
Whenever a child is admitted to a mental health facility, either with or without the consent of the child's parents or guardians, an objection and request for discharge can be filed.

An "objection" may be filed by:

  • The child, if she is age 12 or older;
  • The child's parent's or guardian, if the child was admitted without their consent;
  • Any other interested person over age 18. This may include some other person who has been providing for the child's care, or the child's doctor or counselor.

The person filing the objection must make it in writing and file it with director of the mental health facility. Upon receiving the objection, the facility must discharge the minor at the earliest appropriate time, but not later than 15 days of the date of filing the objection, not counting Saturdays, Sundays and holidays.

However, the facility is not required to discharge the minor if, within 15 days of the filing of the objection, the facility files a petition for review and two certificates in court. The petition for review is a request that a court determine whether the child needs to remain hospitalized. The rules governing the court proceedings are described below.

Request for Discharge of a Minor
Even if the parent or legal guardian of the child initially consented to the admission of a minor, they may file a request that the child be discharged at any time. They should make this request in writing and file it with the facility director. Upon receiving the request for discharge, the facility must discharge the minor at the earliest appropriate time, but not more than 5 days later, not counting Saturdays, Sundays and holidays.

The facility is not required to discharge the minor if, within 5 days after the filing of the request for discharge, the facility files a petition for review and two certificates in court. The child, or someone acting on his behalf if the child is age 12 or over, may file the petition.

A petition for review may be filed following the filing of an objection to admission or a request for discharge. In either case, the court proceedings are the same.

The judge will schedule a court hearing to be held within five days of the filing of the petition for review, not counting Saturdays, Sundays and holidays. The child may continue to be hospitalized while the court proceedings are pending.

The same rules described above which apply to court hearings for the involuntary admission of adults also apply to court proceedings in child cases. The judge will appoint a lawyer to represent the child. The child will be entitled to have an independent mental evaluation, and to have a trial by jury.

The judge must order that the child be discharged if the judge or jury finds that:
•The child does not have a mental illness or emotional disturbance which is so severe that hospitalization is necessary; or
•The child cannot benefit from inpatient treatment; or
•The child can be adequately cared for in a less restrictive setting.

If the court finds that the child is not eligible to be discharged, then the judge will authorize continued treatment. The judge may also order the child to enter into alternative treatment if the judge finds that this will adequately meet the child's needs.
Example: The judge could order the child to attend intensive out-patient counseling, take certain medications, and reside in the home of a relative or some other supervised setting.

Discharge From Treatment
A facility may discharge a child upon request if there is no objection. Also, a court, based on a Petition for Review, may order that a child be discharged. In addition, the facility director may discharge a child if he or she determines that the child no longer needs hospitalization.

Transfers Between State Operated Facilities

The following rules concerning transfers between state operated facilities apply to both adults and children receiving residential mental health care.

Transfers may be allowed but are sometimes prohibited, as follows:

•If you are a resident of a state operated mental health facility, you should not be transferred to another facility if doing so will have a negative effect on your treatment.

•If you have been a resident of a state operated mental health facility for 7 or more days, you cannot be transferred to another facility, unless you are given at least 14 days advance notice in writing.

Notice of the transfer must be given to your lawyer, your guardian, your spouse, and your parents if you are a minor. The notice must include the following:

  • An explanation of the reasons for the transfer;
  • Information about your right to appeal;
  • Information about the availability of assistance from the Guardianship and Advocacy Commission.

In an emergency, you may be transferred without advance notice, but notice of your rights must then be given within 48 hours after the transfer.

II. How to Protect or Enforce Your Rights

Right to Representation
As explained above, there are extensive legal procedures available to prevent unnecessary hospitalization and other inappropriate forms of care. The rules provide that in many cases you are entitled to be represented by an attorney in proceedings to protect your rights.

Equip for Equality and the Guardianship and Advocacy Commission are two agencies that advocate for the rights of recipients of mental health and developmental disability treatment and services. Both of these organizations may be able to provide you with the services of a lawyer to represent you in legal proceedings to protect your rights. For more information about Equip for Equality and the Guardianship and Advocacy Commission, see the section of this guidebook titled "Legal Advocacy for People with Disabilities" in Chapter 16, Miscellaneous Rights.

Appeals Concerning Denial of Admission, Involuntary Discharge, and Involuntary Transfers

Your Right to Appeal
You have the right to file an appeal if any of the following occur:
•If you are denied admission to a state-operated mental health facility because it is determined that you do not require inpatient care;
•If you disagree with a decision to discharge you from a state-operated mental health facility; or
•If you object to a proposed transfer from one state-operated facility to another.

When the Appeal Must be Filed
If you are appealing a denial of admission to a state-operated facility, you must make the appeal in writing within 14 days of the denial. If you are appealing a proposed discharge from a state-operated facility, you can file your appeal at any time up until the date of discharge. If you are appealing a transfer between state-operated facilities, you must file your appeal before the transfer, or within 14 days after an emergency transfer.

Where To File the Appeal
You must file all appeals in writing. You should file them with the director of the state-operated mental health facility.

The Appeal Hearing
Within 7 days of filing your appeal, a panel of mental health professionals called a Utilization Review Committee will conduct a hearing. The hearing is informal, but you have the opportunity to testify and present witnesses and other evidence to support your case. You are entitled to be represented at the hearing.

In cases involving the denial of admission. The program that denied your application for admission has the burden to prove that you do not need to be admitted because appropriate outpatient treatment is available and would meet your treatment needs.

In discharge cases. At the hearing, the facility director has the burden to prove the following:
•That you are no longer "a person subject to involuntary admission;" and
•That you are safely able to live independently, or that you will require assistance in your daily activities and suitable arrangements have been made to provide this assistance.

You cannot be discharged while you are waiting for the hearing or the decision on your appeal.

In transfer cases. At the hearing, the facility director has the burden to prove that the transfer will not negatively affect your treatment and that your treatment needs can be met at the new facility.

Within 3 days after the hearing, the Utilization Review Committee must prepare a written report indicating whether they vote to uphold or reverse the decision which you have appealed. The Committee sends a copy of this report to the director of the mental health facility.

Appeals to the Department of Human Services
Within 7 days after receiving the Committee's report, the facility director must give you a written decision about whether he or she has agreed to accept or reject the Committee's recommendation. If the Committee recommends in your favor and the program director disagrees, the program director may file an appeal to the Illinois Department of Human Services (IDHS). If the Committee's recommendation goes against you, then you may appeal to IDHS.

You must file your appeal to IDHS within 7 days of the program director's decision. You must make the appeal in writing, and you may send it either to the facility director or the Secretary of IDHS. Your appeal must state the reasons why you believe that the facility director's decision is incorrect. The Secretary of IDHS will not consider any new evidence, but will instead review all of the evidence considered by the Utilization Review Committee. The Secretary of IDHS will then send you a written decision within 30 days of your appeal.

Review of the IDHS Decision in Court
If the Secretary of IDHS upholds the decision which you appealed, you may file a complaint for administrative review in Illinois Circuit Court. You must file this Complaint within 35 days of the Secretary of IDHS's decision. You or your lawyer will have the opportunity to make written and oral arguments in support of your case. The judge will then decide whether the Secretary of IDHS fairly considered the facts and properly applied the law.

Appealing Court Orders

As explained above, you are entitled to a court hearing in Illinois Circuit Court if you disagree with your admission or discharge or with other issues in connection with your care.

Anytime the circuit court enters a final order, the order must be placed in writing and must include an explanation of the reason(s) that the order was entered. A copy of the order must be given to you and your lawyer. The judge must tell you and also give you a written statement explaining that you have the right to appeal the order and  that you have the right to have a lawyer appointed to represent you for free if you are poor.

Examples of final orders include:
• Disposition orders requiring you to be hospitalized or to enter alternative care;
• Orders denying your request for a change in your treatment plan;
• Orders denying your request for discharge; and
• Orders permitting your transfer.

The appeal from a final court order must be filed in the Illinois Appellate Court. You must file appeals no later than 30 days after the entry of the final court order.

III. Where to Go for More Information

Statutes and Regulations
The portion of the Mental Health and Developmental Disability Code which deals with admission, transfer, and discharge in connection with mental health facilities is found at 405 ILCS 5/3. The specific sections are as follows:
• Informal admission is found at 405 ILCS 5/3-300.
• Voluntary admission of adults is found at 405 ILCS 5/3-400.
• Admission of minors is found at 405 ILCS 5/3-500.
• Emergency admission upon certification is found at 405 ILCS 5/3-600.
• Admission upon court order is found at 405 ILCS 5/3-700.
• Court hearing procedures are found at 405 ILCS 5/3-800.
• Discharge and transfer are found at 405 ILCS 5/3-900.

The regulations concerning discharge planning and services after discharge from State operated facilities are found at 59 Ill.Admin.Code Part 125. Regulations concerning the Utilization Review appeal process are found at 59 Ill.Admin.Code 112.10. The regulations concerning discharge planning and services after discharge from State operated facilities are found at 59 Ill.Admin.Code Part 125.

The Illinois Guardianship and Advocacy Commission (GAC) has an excellent web site with many resources related to the MHDD Code. This includes a list of Illinois court decisions which interpret and apply the MHDD Code. The GAC web site is at Illinois Guardianship and Advocacy Commission.

For more information about your rights while you are a resident of a mental health facility, see the section in this Chapter titled "Rights of Recipients of Mental Health and Developmental Disability Services."

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