Request By:
Don Duff, Esquire
H. F. Malone, Jr., Esquire
River Region Mental Health-Mental Retardation Board
Box 388, 660 River City Mall
Louisville, Kentucky 40201
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Deedra Benthall, Assistant Attorney General
We are in receipt of your request for information. The specific question which you asked is as follows: When an individual is arrested, with or without a warrant under KRS 202A.040 and KRS 202A.050, on grounds of being mentally ill and of presenting an immediate threat to self or others, and is lodged in a hospital rather than a jail, who bears the responsibility for transporting the individual from the hospital to the initial court hearing which must be held within 48 hours?
KRS 202A.040(1) provides:
"Any peace officer who has reasonable grounds to believe that an individual is mentally ill and presents an immediate danger or an immediate threat of danger to self or others if not immediately restrained shall detain that person without a warrant. The peace officer shall, as soon as practical, cause the person to be examined by a physician. If facilities are available and an authorized staff physician agrees, the person may be lodged in a hospital rather than a jail pending a hearing as provided in this section. If the physician after an examination of the individual certifies in writing that in his opinion the individual is a mentally ill person and presents an immediate danger or an immediate threat of danger to self or others as a result of mental illness and can reasonably benefit from treatment, and that hospitalization is the least restrictive alternative mode of treatment, then he shall be taken before a judge of a circuit, county or police court within forty-eight (48) hours of detention (excluding weekends and holidays) . That court will hold a hearing to determine whether or not the individual should be involuntarily committed to a hospital for a period of seven (7) days."
KRS 202A.050(1) includes similar language. However that section pertains to the arrest of a suspected mentally ill person pursuant to a warrant and upon the complaint of a friend, relative, spouse, guardian or physician who has reasonable grounds to believe that an individual is mentally ill and presents an immediate danger or an immediate threat of danger to self or others. There is no indication as to how the individual is to be transported from the hospital, if he or she is lodged in the hospital, to the court for the initial commitment hearing.
KRS 202A.100(2) provides:
"After the department has been so notified, the court shall order the sheriff of the county to transport the patient within forty-eight (48) hours (excluding weekends and holidays) from the county in which the person is located to the hospital designated by the department. The actual traveling expenses of persons transporting the patient to the institution shall be paid by the department. Each female committed to an institution shall be accompanied by a female attendant, unless accompanied by her mother, father, sister, brother, husband, daughter, or son."
However, this section pertains only to transportation following a court-ordered commitment. Where the court has ordered an individual committed to a hospital, the sheriff of the county in which the order is issued is authorized to transport the individual to the hospital designated by the Department of Human Resources. The expenses of transportation are to be paid by the Department.
The specific question that arises in the situation which you have presented is whether the sheriff or the hospital should be responsible for transporting the individual to the initial hearing when he or she is detained pursuant to KRS 202A.040 or 202A.050. It seems clear that the responsibility of transporting the individual to the initial court hearing should not fall on hospital personnel. There is no statutory mandate in either KRS 202A.040 or 202A.050 requiring the hospital to lodge an individual under these circumstances. The statute simply makes the hospital available if there are adequate facilities facilities and if an authorized staff physician agrees to the lodging. Thus, the matter of lodging is wholly within the hospital's discretion.
You noted that in cases where an individual is lodged in the county jail following arrest pursuant to KRS 202A.040 and 202A.050, the sheriff, the Corrections Department or the jailer, depending upon the locality, transports that individual to the commitment hearing. Since lodging in a hospital is an alternative to incarceration in the county jail and is provided by statute for the comfort and well-being of the individual, the same person in charge of transporting from one facility should be in charge of transporting from the other. The responsibility rests upon the sheriff, the Corrections Department or the jailer, depending upon the procedure in the particular locality. Thus, where it is the sheriff's responsibility to transport an individual arrested pursuant to KRS 202A.040 and 202A.050 from the county jail to the initial court hearing, then it should also be the sheriff's responsibility rather than the hospital's responsibility to transport the individual when he or she is lodged in the hospital as an alternative to incarceration.