Section 8 Incapacity or Disability

• Library: Mental Health 2006

If it is believed that a patient presents a substantial risk of serious physical self-harm or that irreparable damage will occur to the patient’s property because of the patient’s failure or inability or provide for the patient’s essential human needs or to protect the patient’s property because of an incapacity or disability, a petition for emergency guardianship or conservatorship should be filed. Section 475.075.11, RSMo 2000. An “[i]ncapacitated person” is defined as:

[O]ne who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

Section 475.010(9), RSMo 2000.

A “disabled person” is defined as one who is “[u]nable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources.” Section 475.010(4).

In an emergency, a guardian or conservator ad litem may be appointed for a specified period not to exceed 30 days and for specified purposes. Section 475.075.11. If there is a continuing emergency need, the order appointing the guardian or conservator ad litem may be extended not to exceed 30 days for each extension. Id. But a full hearing should be held as soon as possible for the appointment of a permanent guardian or conservator. At the hearing, the court will determine the following:

• The extent of the person’s physical and mental incapacity to care for themselves
• The extent of the person’s physical and mental disability to manage their financial resources
• Whether the person requires placement in a supervised living situation and, if so, the degree of supervision required
• Whether the person’s financial resources require supervision and, if so, the nature and extent of supervision needed

Section 475.075.9.

The court will determine whether the person may be protected by having “temporary protective services provided by a private or public agency or agencies; or by the appointment of a guardian or conservator ad litem; or by the appointment of a limited guardian or conservator; or, as a last resort, by the appointment of a guardian or conservator.” Section 475.075.10.

(§5.9) Absent Without Permission

If a patient leaves a mental health facility or program without permission and disclosure is necessary for the protection of the patient or others, “notice of the disappearance, along with relevant information, may be made to relatives, governmental law enforcement agencies and other persons.” Section 630.150.1, RSMo 2000. If the patient was committed to the custody of the Department of Mental Health as a result of a criminal proceeding in which the patient’s mental illness prevented prosecution of the criminal charges, the head of the mental health facility “shall immediately give notice of the disappearance, along with relevant information, to the prosecutor and sheriff of the county wherein the [patient] is detained, the prosecutor and sheriff of the county wherein the [patient] was tried and acquitted, all known surviving victims . . ., [and] any other agencies or persons” necessary for the protection of the patient. Section 630.150.2.

The head of a mental health facility or program may request a sheriff to apprehend and return a patient to the facility under any of the following circumstances:

• The patient is a minor whose admission was applied for by a parent or legal custodian, who has not requested the patient’s release

• “The patient is a minor under jurisdiction of the juvenile court.”

• The patient has been declared legally incapacitated and the patient’s guardian has not requested release of the patient

• The patient was committed to the Department of Mental Health

• The patient’s condition is of such a nature that, for the protection of the patient or others, “the patient’s return to the program is necessary as noted in the patient’s records, in which case civil detention procedures shall be initiated upon return to the program.”

Section 632.455, RSMo 2000.

(§5.10) Abuse or Neglect

Patients in mental health facilities and programs are entitled to be free from verbal and physical abuse. Section 630.115.1(15), RSMo 2000. “[A]buse or neglect” includes any of the following:

• Beating, striking, or injuring a patient

• Mistreating or maltreating a patient, or handling or treating a patient in a brutal or inhuman manner

• Using any more force than is reasonably necessary for the proper control, treatment, or management of a patient

• Failing to provide services that are reasonable and necessary to maintain the physical and mental health of a patient when the failure presents either an imminent danger to the health, safety, or welfare of the patient or a substantial probability that death or serious harm will result

Section 630.155, RSMo 2000.

If there is reasonable cause to believe that a patient has been abused or neglected, the following persons shall immediately report or cause a report to be made to the Department of Mental Health or the Department of Health and Senior Services: “physician...