Legal processes
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Navigating the legal process
There are many legal processes that can help protect a person’s rights, and connect people to mental health care and support services when needed. For help navigating these processes, call NAMI Chicago’s Helpline at 833-626-4244.
Guardianship
Guardianship is a legal process where a guardian takes on responsibility for helping make decisions for a person with mental, physical or developmental disabilities. To begin the guardianship process, a judge must decide that the person is not able to make responsible decisions for themselves, in all or some areas of their life.
Advanced Directives
You have the right to make decisions about your health care, both now and in the future. Advance directives are written statements expressing how you would like medical decisions made for you in the future, during times when you may not be able to make those decisions yourself. Advance directives include mental health treatment preference declarations and healthcare power of attorney.
Involuntary or Court-Ordered Treatment
It is always best for a person to receive mental health treatment voluntarily. However, sometimes this may not be possible. In those situations, there are a few options to help a loved one get the mental health treatment they need.
Orders for Detention and Examination (Writ)
A writ allows a court to order that someone in crisis be transported to a hospital for a psychiatric evaluation. It is often used when there are immediate safety concerns and a need for assessment.
Petition for Administration of Psychotropic Medication
This legal process allows a court to authorize medication or treatment when someone is hospitalized and refusing care. It requires clinical documentation and a court hearing to determine if treatment is appropriate.
Orders of Protection
Orders of protection are legal tools used to help keep someone safe when there is a risk of harm. Different types of orders may apply depending on the situation and relationship between individuals.
Assisted Outpatient Treatment (AOT)
AOT is a court-ordered treatment plan that allows someone to receive care while living in the community. It is typically used when someone has struggled to stay engaged in treatment and needs additional structure and support.
Where to go?
A local courthouse in the county where either you or respondent reside.
Who can help?
The Center for Elder and Disability Law runs a help desk out of the Daley Center each day the court is in session. They accept walk-ins or you can call to schedule an appointment at 312-376-1880.
Illinois Guardianship and Advocacy Commission offers state-wide help at 1-866-274-8023.
Guardianship
Guardianship is a legal process where a guardian takes on responsibility for helping make decisions for a person with mental, physical, or developmental disabilities. To begin the guardianship process, a judge must decide that the person is not able to make responsible decisions for themselves, in all or some areas of their life.
The guardian should help promote the person’s wellbeing, encourage their independence, and protect them from abuse and neglect. Every guardianship case is different. A judge may grant the guardian the power to make decisions in some areas of a person’s life, but not others.
What a guardian may be responsible for
Limitations
A guardian cannot:
For more information, visit the Guardianship and Advocacy Commission Website, or call them at (866) 274-8023; TTY: 866-333-3362.
Advance directives
You have the right to make decisions about your health care, both now and in the future. An advance directive is a written statement expressing how you would like medical decisions made for you in the future, during times when you may not be able to make those decisions yourself.
Healthcare power of attorney
Healthcare power of attorney lets you choose someone to make health care decisions for you in the future, if you are no longer able to make these decisions for yourself. As long as you are able to make these decisions, you will have the power to do so unless you state otherwise in your document. You may give specific directions to the person with “power of attorney” about the health care you do or do not want.
Keep in mind that the document can be customized to be as broad or as narrow as you may designate, but the current statutory form “as is” allows for your agent to access and review your medical records, including mental health records.
Mental Health Treatment Preference Declaration
A mental health treatment preference declaration, also known as a psychiatric advance directive, is a document you can create to express whether you want to receive psychiatric medications, or electroconvulsive treatment (ECT), when you are feeling mentally unwell and not able to make decisions for yourself. The document also allows you to say whether you wish to be admitted to a mental health facility for up to 17 days of treatment.
You can either write down your wishes, or choose someone to make your mental health decisions for you when you are feeling unwell. In the declaration, you are called the “principal”, and the person you choose is called an “attorney-in-fact.” Neither your health care professional nor an employee of a healthcare facility where you live is allowed to be your attorney-in-fact.
While you are not required to designate an attorney-in-fact, if you do, the attorney-in-fact must agree to this responsibility in writing before they can start making decisions regarding your mental health treatment. The attorney-in-fact must make choices that align with what you wrote in your mental health treatment preference declaration, unless a court orders them to act differently, or there is an emergency.
Your attorney-in-fact must agree to this responsibility in writing before they can start making decisions regarding your mental health treatment. The attorney-in-fact must make choices that align with what you wrote in your mental health treatment preference declaration, unless a court orders them to act differently, or there is an emergency.
One important benefit of a mental health treatment preference declaration is that, unlike a healthcare power of attorney (which can be revoked at almost any time with relative ease), this directive is in effect for three years, unless you revoke it sooner and a physician records in writing that, at present, you in fact have the capability to revoke it. Therefore, an advance directive can be very useful for people who think that they may need particular mental health treatment in the near future and want to guard themselves against changing such instructions at an time when they are not well.
Also, this document has the practical effect of helping you get treatment faster. It often means the person won’t need a treatment team, or the family won’t have to pursue court-ordered treatment or confinement, because the person has already articulated and authorized the mental health treatment they would like to receive.
More information
The Illinois Guardianship and Advocacy Commission regularly provides education and legal assistance for those individuals that wish to execute mental health treatment preference declarations. Contact them, or the NAMI Chicago Helpline, for support. Source: Illinois Department of Public Health. (n.d.). Advance Directives | IDPH. Retrieved December 29, 2019, from http://www.dph.illinois.gov/topics-services/health-care-regulation/nursing-homes/advance-directives
Involuntary or court-ordered treatment
It is always best for a person to receive mental health treatment voluntarily. However, sometimes this may not be possible. In those situations, there are a few options to help a loved one get the mental health treatment they need.
Court-ordered outpatient preatment
This refers to any outpatient treatment that a court mandates for a person living with a mental health condition, or co-occurring substance use condition, who has not consistently stayed in treatment. A person with a substance use condition but no known mental health condition cannot be mandated to participate in treatment, unless there are criminal court proceedings.
Court ordered outpatient treatment can be voluntary or involuntary.
Involuntary inpatient admission
If a person is a danger to themselves or others, or unable to take care of their physical needs, a third-party may file a petition in civil court to admit them into a hospital. There are strict legal restrictions around this, to protect the rights of the individual.
Your rights during involuntary treatment
If you are admitted to a mental health facility against your will, you still have rights. You can only be admitted court-ordered for involuntary admission to a mental health facility against your will if, after a legal proceeding (by judge or jury), it is determined that you have been diagnosed with a mental illness and you have been found to be:
Refusing treatment or not adhering to prescribed treatment and, because of an illness, you’re unable to understand the need for such treatment and you are reasonably expected to suffer deterioration that would lead you to become a danger to yourself or others or unable to take care of your own physical needs.
While you are admitted, the facility must develop a treatment plan within three days of your admission.
Before a court can order involuntary admission, your treatment team must file a written report explaining why, and how they plan to treat you. If the court authorizes the involuntary admission, it will take this report into account in its detailed order. Also, after an order of involuntary admission is entered, the facility has 30 days to submit to the court a detailed treatment plan, so that the court can be certain you are receiving adequate services and humane care.
Involuntary administration of medication or electroconvulsive therapy (ECT)
Legal processes around involuntary treatment do not include the administration of psychotropic medication or electroconvulsive therapy (“ECT”). Involuntary administration of medication is considered to be a significant interference with a person’s liberty, interests, and right to be free from unwanted treatment, and should not be taken lightly.
A person over 18 may petition the court for a judge to mandate that you be administered medication or ECT despite your refusal. Courts only authorize such treatment when there is clear and convincing evidence that you have a serious mental illness and you are currently showing one of the following:
The petitioner must also prove the length of illness, continuing presence of the symptoms and that the benefits of the treatment outweigh the harm.
The court must decide that you lack the ability to make a reasoned decision about the treatment and that other, less restrictive services have been explored and not been the right fit.
Your rights in this process
Orders for detention and examination (Writ)
You are the petitioner. The respondent is the person in crisis.
A writ is a court order that mandates a police department transport the individual in crisis to a hospital of the petitioner’s choosing. A writ guarantees a psychiatric evaluation, not admission to the behavioral health unit.
The respondent must meet at least one of three criteria:
Behaviors must be recent (last 1–2 weeks) and must have been physically observed by the petitioner. The petitioner cannot pursue a writ:
A writ guarantees a psychiatric evaluation, not admission. It does not guarantee longer admission or adherence to medication. The writ allows the petitioner to choose the hospital for evaluation. It is not guaranteed that they will be admitted to the same hospital as their evaluation. The petitioner needs to know where the respondent is, as a pickup address must be listed on the writ.
Pursuing the Writ
Cook County Courthouses
Skokie Courthouse: 5600 Old Orchard Rd., Skokie, IL 60077; (847) 470-7300
Rolling Meadows Courthouse: 2121 Euclid Ave, Rolling Meadows, IL 60008; (847) 818-2326
Maywood Courthouse: 1311 Maybrook Dr., Maywood, IL 60153; (708) 865-6080
Bridgeview Courthouse: 10220 S 76th Ave, #205l, Bridgeview, IL 60455; (708) 974-6250
Markham Courthouse: 16501 Kedzie Ave, Markham IL 60428; (708) 232-4040
Daley Center: 50 W Washington St., 27th Floor, Chicago IL, 60602; (312) 603-8600
Petition for administration of psychotropic medication
When a person is hospitalized at an inpatient facility, they have a right to refuse medication. The only exception is when an individual poses an imminent threat of harm to themselves or others, in which case a sedative may be administered involuntarily.
The petition requires two certificates signed by licensed healthcare professionals. One must be signed by a psychiatrist. Any adult with a vested interest may file a medication petition. Without the certificate filed by a psychiatrist, a hearing will not be granted.
Forms are filed in the county and a hearing date is set. A healthcare professional must testify at the hearing to determine if the judge will order the use of medication. This order can last up to 90 days.
Concurrently, a doctor must also submit a commitment petition – a form filed with the court to involuntarily hold the individual for up to 90 days on the unit. The doctor must testify and show that it is medically necessary to hold this individual involuntarily.
Orders of protection
Four types: in each case, the petitioner must prove, through evidence or testimony, that without the order their safety is in jeopardy.
Domestic Violence Order of Protection
Outlines protections granted when there is abuse occurring within a partnership, family, relationship, etc. To be granted, the petitioner must be related to, had or have an intimate relationship with, reside with, or share children with the respondent.
Firearm Restraining Order
Restricts access to firearms when there is reason to believe someone may harm themselves or others. Must be filed by a family member with a vested concern. The family member is also advised to notify local police.
Sexual Assault Civil No Contact Order
Allows legal protections and restrictions when sexually based crimes have occurred.
Stalking No Contact Order
Adds protections in legal stalking cases where other statutes and protection orders are not applicable.
Assisted outpatient treatment (AOT)
AOT is a commitment order that legally mandates outpatient treatment. These are agreed orders – the respondent agrees to sign and comply with the treatment plan in the order.
The respondent is represented by a Guardian Ad Litem, and there is typically an appointed custodian who acts as the caretaker. Petitions are often filed at discharge from inpatient to prevent the cycle of hospitalizations.
If the respondent is non-compliant with the order, they can be brought to a hospital via an expedited process.
An AOT order can last for up to 6 months, with the possibility of extension upon further review.
Criteria for AOT
If the individual has refused treatment due to their mental illness in the past and can be reasonably expected to deteriorate to the level of involuntary admission without outpatient treatment. (E.g. multiple inpatient admissions without community treatment engagement, non-engagement with prescribed treatment plan from psychiatric team, etc.)
Need help navigating the legal system?
Legal processes can be complex and overwhelming. NAMI Chicago can help you understand your options and think through next steps.