[HISTORY: Adopted by the Tribal Council of the Nottawaseppi Huron Band of the Potawatomi 2-15-2018 by Res. No. 02-15-18-09. Amendments noted where applicable.]
§ 7.6-16 Return of patient to hospital; conditions; notification of peace officers; protective custody; notice of opportunity to appeal.
The title of this code shall be the "Nottawaseppi Huron Band of the Potawatomi's (NHBP, Tribe, or Band) Mental Health Code." It may be referred to as the "Mental Health Code" or simply "the code."
Enrolled NHBP members, members of other federally recognized tribes, or other individuals subject to the Tribal Court's jurisdiction, shall receive involuntary mental health treatment only pursuant to the specific involuntary provisions of this code in conjunction with the Michigan Mental Health Code. The code is designed to provide NHBP Tribal Police, Health and Human Services and Tribal Court. the authority and jurisdiction to facilitate mental health examinations and treatment options, while protecting the safety and well-being of the NHBP community.
It is always preferable for someone to be hospitalized voluntarily, when possible. Anticipating crisis situations and developing a plan ahead of time may facilitate voluntary hospitalization.
This Code allows for an individual who is believed to be in danger of harming himself or herself or others to be taken into protective custody to be transported to a hospital for further examination and determination of further appropriate treatment.
If any provision of this code is found to be unconstitutional or unlawful by a court of competent jurisdiction, such provision(s) shall be struck, and the remainder of this code shall remain in full force and effect.
As used in this chapter, the following terms shall have the meanings indicated:
- ALTERNATIVE TREATMENT
- Medical products and practices that are not part of what medical doctors, doctors of osteopathy, and allied health professionals, such as nurses and physical therapists, practice.
- A person who is 18 years of age or older.
- CLINICAL CERTIFICATE
- The written conclusion and statements of a physician or a licensed psychologist that an individual is a person requiring treatment, together with the information and opinions, in reasonable detail, that underlie the conclusion, on the form prescribed by the NHBP Health and Human Services Department.
- COMPETENT CLINICAL OPINION
- The clinical judgment of a physician, psychiatrist, or licensed psychologist.
- The Nottawaseppi Huron Band of the Potawatomi Tribal Court.
- FORMAL VOLUNTARY HOSPITALIZATION
- Hospitalization of an individual based on both of the following:
- A. The execution of an application for voluntary hospitalization by the individual or by a guardian or conservator of the patient as designated under Title VII, Chapter 7.2, Guardianship and Conservatorship Code, to make mental health treatment decisions for the individual; and
- B. The determination that the individual is clinically suitable for voluntary hospitalization by a mental health professional.
- FUNCTIONAL IMPAIRMENT
- Both of the following:
- A. With regard to a serious emotional disturbance, substantial interference with or limitation of an individual's achievement or maintenance of one or more developmentally appropriate social, behavioral, cognitive, communicative, or adaptive skills.
- B. With regard to serious mental illness, substantial interference or limitation of role functioning in one or more major life skills, such as, but not limited to, maintaining a household, managing money, getting around the community, taking prescribed medication, and functioning in social, vocational, and educational contexts.
- HOSPITALIZATION or HOSPITALIZED
- Court-ordered placement of a person into an institution providing medical and surgical treatment and nursing care for sick or injured people.
- A member of the Nottawaseppi Huron Band of the Potawatomi or any member of another federally recognized Indian tribe, or a minor eligible for membership in a federally recognized Indian tribe, band or community.
- INDIVIDUAL ELIGIBLE TO FILE A PETITION/APPLICATION
- A mental health professional, peace officer, or qualified tribal employee who bases his/her assertions on reliable and trustworthy information. A mental health professional, peace officer, or qualified tribal employee may use hearsay in the petition/application if they can demonstrate the reliability and trustworthiness of the assertions.
- INDIVIDUAL PLAN OF SERVICES or PLAN OF SERVICES
- A written plan of service developed for a specific person and amended as needed.
- INVOLUNTARY MENTAL HEALTH TREATMENT
- Hospitalization, alternative treatment, or combined hospitalization and alternative treatment for an individual found to be a person requiring treatment.
- MENTAL HEALTH PROFESSIONAL
- An individual who is trained and experienced in the area of mental illness or developmental disabilities and who is a:
- MENTAL ILLNESS
- A substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
- NEAR FUTURE
- Very soon, within twenty-four (24) hours.
- NODÉSAT [NOH DEH SAAHT]
- To be short of something or, as used in this code, means an individual who is alleged to be, or whom the Court has found to be, a person in need of treatment.
- PEACE OFFICER
- An officer of the Nottawaseppi Huron Band of the Potawatomi Tribal Police Department or another law enforcement officer deputized by NHBP.
- PERSON REQUIRING TREATMENT
- Any one of the following:
- A. An individual who has mental illness and who, as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual, and who has engaged in an act or acts or made significant threats that would cause a reasonably prudent person to expect that the threats will be carried out.
- B. An individual who has mental illness and who, as a result of that mental illness, is unable to attend to those of his or her basic physical needs such as food, clothing, or shelter that must be attended to in order for the individual to avoid serious harm in the near future, and who has demonstrated that inability by failing to attend to those basic physical needs.
- C. An individual who has mental illness, whose judgment is so impaired that he or she is unable to understand his or her need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent clinical opinion, to result in significant physical harm to himself/herself, or others.
- D. An individual who has mental illness, whose understanding of the need for treatment is impaired to the point that he or she is unlikely to participate in treatment voluntarily, who is currently noncompliant with treatment that has been recommended by a mental health professional and that has been determined to be necessary to prevent a relapse or harmful deterioration of his or her condition and whose noncompliance with treatment has been a factor in the individual's placement in a psychiatric hospital, prison, or jail at least two (2) times within the last forty-eight (48) months or whose noncompliance with treatment has been a factor in the individual's committing one (1) or more acts, attempts, or threats of serious harm or danger to himself or to others within the last forty-eight (48) months.
- PETITION FOR HOSPITALIZATION
- A statement asserting that the person is a person requiring treatment as defined in this code, the facts that are the basis for the assertion, the names and addresses of any witnesses to the asserted facts, the name and address of the nearest relative, guardian, or friend of the person.
- PETITION FOR EXAMINATION
- A statement asserting that a petition for hospitalization has been executed by the petitioner, that the petitioner has been unable to have the individual examined, describing the efforts a petitioner has made to have an individual examined, and asking the Court to order an examination of the individual.
- PREADMISSION SCREENING UNIT or PSU
- A service component of a community mental health service program established under MCLA § 330.1409, which has signed a memorandum of understanding with NHBP.
- PRESENTING OFFICER
- The Prosecuting Attorney for the Nottawaseppi Huron Band of the Potawatomi or other person assigned the duties of the Presenting Officer for proceedings under this code through a resolution of the Tribal Council. The Presenting Officer shall be the attorney for the petitioner in all proceedings brought under this chapter.
- PROTECTIVE CUSTODY
- The temporary custody of an individual by a peace officer with or without the individual's consent for the purpose of protecting that individual's health and safety, or the health and safety of the public, and for the purpose of transporting the individual if the individual appears, in the judgment of the peace officer, to be a person requiring treatment or is a person requiring treatment. Protective Custody is civil in nature and is not an arrest.
- The transfer of an individual who is subject to an order of combined hospitalization and alternative treatment from a current treatment program to another in accordance with his or her individual plan of services.
- SERIOUS HARM OR DANGER TO HIMSELF OR TO OTHERS
- That there is substantial risk that physical harm will be caused by the alleged person requiring care upon himself or herself, or upon a third party, as evidenced by the alleged person requiring care's recent actions, threats, and attempts to cause physical harm.
- QUALIFYING EMERGENCY
- That unless the Court grants the relief requested, some irreparable harm will come to the person requiring treatment, other persons, or the NHPB community; or that the notice necessary to seek relief through other means will cause the harm that the petitioner seeks to prevent.
- SERVICES or TREATMENT
- Case management to provide care coordination. Service may include one or more of the following: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; vocational, educational, or self-help training or activities; assertive community treatment team services; alcohol or substance use disorder treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for an individual with a history of alcohol abuse or substance use disorder; supervision of living arrangements; and any other services within an individual plan of services developed under the code that are prescribed to treat the individual's mental illness and to assist the individual in living and functioning in the community or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide, the need for hospitalization, or serious violent behavior.
- SUBSTANCE ABUSE
- The taking of alcohol or other drugs at dosages that place an individual's social, economic, psychological, and physical welfare in potential hazard or to the extent that an individual loses the power of self-control as a result of the use of alcohol or drugs, or while habitually under the influence of alcohol or drugs, endangers public health, morals, safety, or welfare, or a combination thereof.
- SUBSTANCE USE DISORDER
- A chronic disorder in which repeated use of alcohol, drugs, or both, results in significant and adverse consequences. Substance use disorder includes substance abuse.
Jurisdictional statement. The jurisdiction of the NHBP Tribal Court shall extend, except as limited by federal statutory or NHBP tribal law, to:
All persons natural and legal of any kind; and to
All subject matters which, now and in the future, are permitted to be within the jurisdiction of any Tribal Court of a sovereign Indian tribe or nation; and to
All matters having to do with rights in or encumbrances to lands within or outside the Pine Creek Indian Reservation on lands held in trust by the United States for the Tribe or its members, in restricted fee by the Tribe, or lands held in fee by members of the Tribe located within the Pine Creek Indian Reservation; and tribal territorial jurisdiction shall extend, except as limited by federal law or NHBP tribal law, to all lands in trust or in fee, within the Pine Creek Indian Reservation and outside the Pine Creek Indian Reservation to lands reserved or obtained by the Tribe and its people for their use by any treaty or law or in any other manner, including but not limited to Court decision, purchase, established right of use, or gift.
Long-arm statute. It has been and continues to be the intent of the NHBP that the Tribal Court exercise long-arm jurisdiction to the extent consistent with the due process protections provided in 25 U.S.C. 1302 (8) and the limitations set forth in Subsection C of this section. Unless prohibited by federal statutory law or beyond the limitations of Subsection C of this section, a person, including any entity, who is a nonmember of the Tribe residing outside the Tribe's territorial jurisdiction and/or not present within such territory, submits to the jurisdiction of the Tribal Court by doing any of the following acts:
Transacting any business with the Tribe, its entities or instrumentalities, including, but not limited to, constructing or supplying services, tangible items or property transactions, or participation in any transaction or contract occurring in whole or in part within the Reservation or off-Reservation trust lands or restricted lands, and conveying any interest in property located within such tribal territory;
Committing tortious acts within the Reservation or other tribal property;
Owning, using, possessing, or having an interest in any property, whether real or personal, situated within tribal territory;
Contracting to insure any person, property, or risk located within the Reservation or other tribal territory at the time of contracting;
Living in a marital relationship subject to the Tribe's jurisdiction, notwithstanding subsequent departure from the tribal territory, so long as one party to the marriage continues to reside within tribal territory;
Is the parent, custodian, or other person with a legal interest in an Indian child subject to the jurisdiction of the Tribe;
Residence within the Tribe's service area for purposes of compelled process of the Tribal Court; or
Accepting or receipt of services or benefits from the Tribe, or entering into a consensual relationship or commercial transaction with the Tribe or tribal member, and this relationship substantially affects the self-governance interests of the Tribe.
Tribal immunity. The NHBP, its Tribal Council, its agencies, enterprises, its chartered organizations, corporations, or entities of any kind, and its officers, employees, agents, contractors, and attorneys, in the performance of their duties shall be immune from suit; except where the immunity of the Tribe or its officers and employees is expressly, specifically, and unequivocally waived by, and in an NHBP or federal statute, a duly executed contract approved by the Tribal Council, or a duly enacted law or resolution of the Tribal Council.
A nodsat has the right to an attorney at all proceedings. If a nodésat cannot afford an attorney, the Tribe will appoint an attorney at its own expense. If an attorney cannot be appointed prior to an initial hearing under this chapter, the Court must adjourn the proceedings until an attorney can be present for the hearing. The Court may order that the nodésat remain in protective custody pending the adjournment.
A nodésat has the right to be present at all proceedings either in person or via telephone or video conference.
A nodésat's choice of medical providers will be honored when possible; however, the nodésat remains responsible for the costs associated with the transportation to and from the provider and for the care he or she received from the provider. A nodésat's ability to choose his or her medical provider may be limited by reasonable factors, such as the nodésat's insurance restrictions, availability, cost, distance, or other factors that the Court determines detrimental to successful treatment of the nodésat.
A nodésat has the right to have his or her medical information kept confidential, and all proceedings under this chapter shall be closed to the general public. The Court has the discretion to allow additional people to attend hearings under this chapter consistent with the nodésat's best interests.
For all hearings under this chapter, the Court will direct notice of the date, time, and location of the hearing to the following people:
If a peace officer observes an individual 18 years of age or older conducting himself or herself in a manner that causes the peace officer to reasonably believe that the individual is a person requiring treatment as defined herein, the peace officer may take the individual into protective custody and transport the individual to the hospital or PSU for an evaluation.
Upon arrival at the hospital or the PSU, the peace officer shall execute a petition for hospitalization and/or petition for examination of the individual.
As soon as practicable, the peace officer will file the petition for hospitalization and/or petition for examination of the individual with the Court.
The hospital or the PSU will follow Michigan Compiled Laws on admission by medical certification, MCLA §§ 330.1423 through 330.1431, or as amended, which are incorporated by reference herein.
If a peace officer is taking an individual into protective custody, the peace officer may use the kind and degree of force that would be lawful if the peace officer were effecting an arrest for a misdemeanor without a warrant. In taking the individual into custody, a peace officer may take reasonable steps for self-protection. The protective steps may include a pat down search of the individual in the individual's immediate surroundings, but only to the extent necessary to discover and seize a dangerous weapon that may be used against the officer, other persons present, or the individual. These protective steps shall be taken by the peace officer before the individual is transported to a hospital.
The taking of an individual to a hospital is not an arrest; it is placing the person into protective custody. The peace officer shall inform the individual that he or she is being held in protective custody and is not under arrest. An entry shall be made indicating the date, time, and place of the protective custody, but the entry shall not be treated for any purpose as an arrest or criminal record.
A peace officer who acts in compliance with this act is acting in the course of official duty and is not civilly liable for the action taken. This does not apply to a peace officer who, while acting in compliance with this act, engages in behavior involving gross negligence or willful and wanton misconduct.
A peace officer is not financially responsible for the cost of care of an individual for whom the peace officer has executed an application of hospitalization or a court order for protective custody under this code.
A peace officer transporting an individual to a hospital either voluntarily or involuntarily shall notify NHBP Behavioral Health or the Michigan Department of Health and Human Services as soon as possible.
A peace officer presented with a court order to take a nodésat into protective custody shall serve a copy of the court order and a copy of the petition for examination and/or protective custody, along with all attached documents and exhibits, upon the nodésat. The peace officer will immediately take the nodésat into protective custody and transport the nodésat to a hospital for examination.
A petition for mental health treatment under this chapter must be made by an individual eligible to file a petition,
A petition for mental health treatment shall be made by sworn affidavit or on the record in open court.
A petition for mental health treatment shall contain the following information:
Statement(s) that the nodésat is a person within the jurisdiction of the NHBP Tribal Court;
Statement(s) of the reasons for alleging that the nodésat is a person requiring treatment;
Statement(s) explaining the results of a mental health examination or, if no examinations have been performed, explaining the steps that have been taken to get an examination for the nodésat prior to seeking a court order;
The name(s) of any interested persons;
Recommendation concerning the need for examination and/or mental health treatment, to include hospitalization.
A petition for hospitalization and/or a petition for examination that is filed with Court in accordance with§ 7.1-8 and which contains the information specified in§ 7.1-9C of this chapter, will be treated as any other petition for mental health treatment under this chapter.
The Court must immediately issue an order directing that a nodésat be placed into protective custody and be ordered to participate in mental health examinations by a psychiatrist and either a physician or a licensed psychologist if the petition establishes probable cause to believe that:
The nodésat is a person within the jurisdiction of the NHBP Tribal Court;
The nodésat is a person requiring treatment within the meaning of this code;
That reasonable attempts were made to secure an examination of the nodésat;
That the nodésat refuses to participate in a mental health examination;
An emergency exists in which the nodésat poses an immediate and serious harm or danger to himself or to others; and
The nodésat is in need of an examination to determine the need for further mental health treatment at a hospital.
The Court must immediately issue an order directing that a nodésat be hospitalized and examined by a psychiatrist if the petition establishes probable cause to believe that:
The nodésat is a person within the jurisdiction of the NHBP Tribal Court;
The nodésat is a person requiring treatment within the meaning of this code;
The nodésat has been examined by a physician or a licensed psychologist and the conclusion of the clinical certificate supports protective custody;
An emergency exists in which the nodésat poses serious harm or danger to himself or to others; and
The nodésat is in immediate need of protective custody and/or an examination for further mental health treatment at a hospital.
An ex parte order issued under this section shall direct the Tribal Police to take the nodésat into protective custody and transport him or her to a hospital for further mental health examination and/or appropriate treatment. If the nodésat cannot be immediately examined, the Court may place the nodésat into protective custody, in the least restrictive setting possible, pending an evaluation.
If the Court receives a report from either the psychiatrist, or the physician or a licensed psychologist, that a clinical certificate is not warranted, the Court may, in its sole discretion, dismiss the petition without a hearing or issue a sua sponte order that the nodésat participate in a third examination conducted by a psychiatrist or, if a psychiatrist is not available, by a physician or licensed psychologist.
If the third examination states that a clinical certificate is not warranted, the Court must dismiss the petition without a hearing and order that the nodésat be released.
If a nodésat is being held in protective custody or hospitalized, the Court must conduct a hearing on a petition for mental health treatment no later than one (1) business day following the nodésat's placement into protective custody.
If reasonable efforts were made to examine the nodésat but, due to noncompliance by the nodésat or other unforeseeable circumstances, the examinations could not be completed before the hearing, the Court may adjourn the hearing on the petition for mental health treatment for up to seven (7) days following proof of service upon the nodésat; however, the Court must hold a preliminary hearing to determine whether or not it is necessary for the nodésat to remain in protective custody during the adjournment.
If the nodésat is not in protective custody, the Court must hold a hearing on the petition for mental health treatment within seven (7) business days following proof of service upon the nodésat.
During the hearing on a petition for mental health treatment, the presenting officer must:
Upon finding that a person is a person in need of treatment, the Court may initially:
Order a nodésat to be hospitalized, for a period not to exceed sixty (60) days;
Order a nodésat to comply with an individual plan of services, for a period not to exceed one hundred eighty (180) days; or
Order a nodésat to comply with a combination of hospitalization, not to exceed sixty (60) days, and compliance with an individual plan of services, not to exceed one hundred eighty (180) days.
A hospital director may discharge a nodésat if the hospital director considers the nodésat suitable for discharge.
A hospital director must discharge a nodésat when the nodésat no longer meets the criteria of a person requiring treatment.
A hospital director must provide the Court with notice that the nodésat is being discharged twenty-four (24) hours before the discharge.
A person providing treatment may terminate that treatment if the nodésat is clinically suitable for termination of treatment.
A person providing treatment may terminate that treatment if the nodésat no longer meets the criteria of a person requiring treatment.
A person providing treatment must provide the Court with notice that the nodésat is being terminated from treatment twenty-four (24) hours prior to the termination from treatment.
If a nodésat has not been discharged from hospitalization or has not been terminated from treatment, the Court must review the need for continuing court jurisdiction at least fourteen (14) days prior to the expiration of its last order. The court will evaluate the following factors to determine if continued jurisdiction is necessary:
Does the nodésat still meet the definition of a person requiring treatment;
The nodésat's progress on his or her individual plan of services;
The nodésat's compliance with taking prescribed medication, if any;
The treatment facility's capacity to meet the nodésat's current needs;
The treating provider's recommendations;
Availability of less restrictive alternatives.
A second order for involuntary hospitalization shall not exceed 90 days.
Any orders for hospitalization consecutive to the second order for involuntary hospitalization shall not exceed one (1) year.
If a nodésat has been ordered to comply with an individual plan of services continuously and without interruption for less than two (2) years, the Court must review the case at least once every one hundred eighty (180) days to determine whether or not it is necessary for the Court to continue jurisdiction.
If a nodésat has been ordered to comply with an individual plan of services continuously and without interruption for two (2) years or more, the Court must review the case at least once every three hundred sixty-five (365) days to determine whether or not it is necessary for the Court to continue jurisdiction.
§ 7.6-16 Return of patient to hospital; conditions; notification of peace officers; protective custody; notice of opportunity to appeal.
A nodésat is subject to being returned to a hospital if both of the following circumstances exist:
The hospital director or facility director with a copy of the Court Order may notify peace officers that a nodésat is subject to being returned to the hospital. Upon being presented with a copy of the Court Order by the hospital director, a peace officer shall take the nodésat into protective custody and return the individual to the hospital unless directions have been given by the hospital director to transport the nodésat to an alternate facility.
An opportunity for appeal, and notice of that opportunity, shall be provided to a nodésat who objects to being returned from any authorized leave in excess of ten (10) days.
A nodésat shall be housed in the least restrictive environment to protect life and physical safety of the nodésat or members of the public; in this respect, prevention of significant injury to property may be considered.
A nodésat or proposed nodésat may be housed in a jail only if no mental health facility is available or if the available mental health facilities are inadequate to protect the nodésat and the public. As soon as a mental health facility becomes available or the situation has changed sufficiently that an available mental health facility is adequate for the protection of the nodésat and the public, then the nodésat shall be transferred from the jail to the mental health facility by an NHBP peace officer as soon as possible.
A nodésat placed in protective custody prior to involuntary mental health treatment may apply to the Court for immediate relief with respect to the need for protective custody or the adequacy of the facility being utilized for his or her protective custody.
Any person who believes he or she is being unlawfully held under this code may petition the Court to test the legality of his or her detention. This section is not meant to place any limitation on a nodésat's ability to seek other means of available relief.