Analysis of State Statutes
| Category: Respondent capable of making a knowing or intelligent waiver of hearing appearance and may stipulate to commitment or concede to the court’s hearing decision | |||
| State | Policy and statute reference | Applicability to Outpatient Commitment.If not applicable, relevant outpatient commitment statute language | Hearing procedures by court rules, case law, or common practice |
| UT | “The court may allow a waiver of the proposed patient’s right to appear for good cause, which cause shall be set forth in the record, or an informed waiver by the patient, which shall be included in the record.” Utah Code Ann. § 62A-15-631 (2021) | Yes | A person may make an informed waiver of appearance and stipulate to a lesser period of commitment. A hearing is held irrespective of respondent’s attendance. Source: 2020 NASMHPD survey |
| DE | “(a) An involuntary patient may waive any of the rights provided by this chapter if: (1) The court determines that such waiver is voluntary and with the involuntary patient’s knowing and intelligent consent …If the hearing provided for in § 5011 of this title is waived, the court shall enter an order of disposition in accordance with § 5011(c) of this title.” 16 Del. C. § 5012, 5013 (2021) | Yes | |
| NH | “Such waiver shall state that the person sought to be admitted has made an informed decision to waive the probable cause hearing and that he or she understands that such a waiver shall result in his or her admission on an emergency basis for a period not to exceed 10 days” RSA 135-C:31 (2021) | Yes | |
| HI | “…If the subject executes and files a waiver of the hearing, upon acceptance by the court following a court determination that the person understands the person's rights and is competent to waive them, the court shall order the subject to be committed …” HRS § 334-60.4 (2021) | No “The subject of the petition shall not be required to be present at the hearing; provided that the subject has been served with the petition and the appointed guardian ad litem, or existing guardian, is present to represent the best interests of the subject through the proceedings.” HRS § 334-126 (2021) | |
| LA | “The respondent has a right to be present unless the court finds that he knowingly, voluntarily, and intelligently waives his presence.” La. R.S. § 28:55 (2021) | No “If the respondent does not appear at the hearing, and service of process was proper and appropriate attempts to elicit attendance failed, the court may conduct the hearing in the absence of the respondent …” La. R.S. § 28:69 | |
| AK | “…the respondent has the right to 1. be present at the hearing; this right may be waived only with the respondent’s informed consent …” Alaska Stat. § 47.30.735 (2021) | Yes | |
| MS | “respondent …may make a knowing and intelligent waiver of his rights in such proceeding, provided that the waiver is made by his attorney with the informed consent of the respondent” Miss. Code Ann. § 41-21-76 (2021) | Yes | By practice, the hearing will be held irrespective of the respondent’s presence. Source: 2020 NASMHPD survey |
| MT | “A person may waive the person's rights, or if the person is not capable of making an intentional and knowing decision, these rights may be waived by the person's counsel …” 53-21-119, MCA (2021) | Yes | |
| NE | “only if the record reflects that such waiver was made personally, intelligently, knowingly, understandingly, and voluntarily by the subject and such subject’s legal guardian or conservator, if any.” R.R.S. Neb. § 71-960 (2021) | Yes | |
| NM | “The presence of the client may be waived upon a showing to the court that the client knowingly and voluntarily waives the right to be present.” N.M. Stat. Ann. § 43-1-11 (2021) | No “If the respondent fails to appear at the hearing after notice, the court may conduct the hearing in the respondent’s absence; provided that the respondent’s counsel is present.” N.M. Stat. Ann. § 43-1B-6 (2021) | |
| Category: Respondent can waive appearance and stipulate to commitment or concede to the findings of the commitment procedure, without explicit reference to respondent’s capacity to make a knowing or intelligent waiver | |||
| State | Policy and statute reference | Applicability to Outpatient Commitment. If not applicable, relevant outpatient commitment statute language | Hearing procedures by court rules, case law, or common practice |
| GA | “If the hearing is waived, the certificate shall serve as authorization for the patient to begin treatment under the terms of the individualized service plan” O.C.G.A. § 37-3-81 (2021) | Yes | |
| MI | “(1) The subject of a petition has the right to be present at all hearings. This right may be waived by a waiver of attendance signed by the subject of a petition … (2) The subject of the petition under section 434, after consultation with counsel, may stipulate to the entry of any order for treatment.” MCLS § 330.1455 (2021) | Yes | |
| OH | “The right to attend the hearing may be waived only by the respondent or counsel for the respondent” ORC Ann. 5122.15 (2021) | Yes | |
| TN | “If the defendant consents in writing to a waiver of hearing, counsel may waive the hearing upon proper notice to the court.” Tenn. Code Ann. § 33-6-420 (2021) | Yes | |
| WI | “The subject individual, or the individual’s legal counsel with the individual’s consent, may waive the time periods under s. 51.10 or this section for the probable cause hearing or the final hearing, or both … (4) agree at any time after the commencement of the proceedings that the individual shall obtain treatment under a settlement agreement.” Wis. Stat. § 51.20 (2021) | Yes | |
| MA | “Following the filing of a petition for a commitment to a facility or to the Bridgewater state hospital, a hearing shall be held unless waived in writing by the person after consultation with his counsel. In the event the hearing is waived, the person may request a hearing for good cause shown at any time during the period of commitment.” ALM GL ch. 123, § 6 (2021) | N/A | |
| CA | “The person certified shall be present at the certification review hearing unless he or she, with the assistance of his or her attorney or advocate, waives his or her right to be present at a hearing.” Cal Wel & Inst Code § 5256.3 (2021) | Yes | |
| MN | “Subd. 5. Absence permitted. The court may permit the proposed patient to waive the right to attend the hearing if it determines that the waiver is freely given.” Minn. Stat. § 253B.08 (2021) | Yes | |
| ND | “Respondent must be present at all hearings unless the respondent waives the right to be present either orally or in writing. A respondent’s refusal to attend a hearing is presumed to be a waiver of the right to be present at the hearing.” N.D. Cent. Code, § 25-03.1-15 (2021) | Yes | |
| RI | “The preliminary hearing [for probable cause] can be waived by a motion of the patient to the court if the patient is a resident of a facility.” R.I. Gen. Laws § 40.1-5-8 (2021) | Yes | By practice, a hearing may be waived, and parties can enter a Consent Order in which they agree that the commitment order will be entered and signed by the Judge. Source: 2020 NASMHPD survey |
| SC | “The person for whom the hearing is being held shall have the right to be present at the commitment hearing and such right may be waived only by him or his attorney.” S.C. Code Ann. § 44-17-570 (2021) | Yes | |
| SD | “If the person chooses not to appear, his attorney shall state on the record that the person has been informed of the hearing and of his right to appear and chooses not to exercise this right. Documentation of the reasons for the person’s decision may not be required.” S.D. Codified Laws § 27A-11A-11 (2021) | Yes | |
| TX | “The proposed patient is entitled to be present at the hearing. The proposed patient or the proposed patient’s attorney may waive this right.; … the proposed patient or the proposed patient’s attorney, by a written document filed with the court, may waive the right to cross-examine witnesses, and, if that right is waived, the court may admit, as evidence, the certificates of medical examination for mental illness.” Tex. Health & Safety Code § 574.031 (2021) | Yes | |
| WY | “The proposed patient shall be present at the hearing unless he waives his right to appear.” Wyo. Stat. § 25-10-110 (2021) | Yes | |
| AZ | “The patient may choose to not attend the hearing or the patient’s attorney may waive the patient’s presence.” A.R.S. § 36-539 (2021) | Yes | By practice, the respondent can stipulate to civil commitment if deemed to have capacity to make such decision. Source: 2020 NASMHPD survey By case law, a respondent’s absence cannot be presumed as voluntary without evidence to suggest the respondent made a knowing and intelligent waiver of the right to be present. In re Pima Cty. Mental Health No. MH 3079-4-11, 228 Ariz. 341, 342, 266 P.3d 367, 368 (Arizona Ct. App. 2011) |
| Category: Respondent’s attorney/representative or judge/court can waive respondent’s appearance at the hearing; however, the hearing may continue in their absence. | |||
| State | Policy and statute reference | Applicability to Outpatient Commitment. If not applicable, relevant outpatient commitment statute language | Hearing procedures by court rules, case law, or common practice |
| AL | “(1) The respondent shall be present unless, prior to the hearing, the attorney for the respondent has filed in writing a waiver of the presence of the respondent on the ground that the presence of the respondent would be dangerous to the respondent’s physical or mental health or that the respondent’s conduct could reasonably be expected to prevent the hearing from being held in an orderly manner …” Code of Ala. § 22-52-9 (2021) | Yes | |
| AR | “(b) The person named in the original petition is not required to appear and may be removed from the presence of the court …” Ark. Code Ann. § 20-47-209 (2021) | Yes | By practice, AR allows a waiver of appearance and stipulation to the allegations in the petition. Source: 2020 NASMHPD survey |
| IL | “(a) The respondent shall be present at any hearing held under this Act unless his attorney waives his right …” 405 ILCS 5/3-806 (2021) | Yes | By practice, the judge should determine that the respondent is able to make a rational decision whether to attend the hearing. Source: 2020 NASMHPD survey |
| MO | “The respondent shall be present at the hearing, unless the respondent's physical condition is such that he cannot be present in the courtroom or if the court determines that the respondent's conduct in the courtroom is so disruptive that the proceedings cannot reasonably continue.” R.S.Mo. § 632.335 (2021) | Yes | |
| FL | “If the court finds that the patient’s attendance at the hearing is not consistent with the best interests of the patient, and the patient’s counsel does not object, the court may waive the presence of the patient from all or any portion of the hearing.” Fla. Stat. § 394.467 (2021) | Yes | At the initial hearing (inpatient and outpatient commitment proceedings), the court may waive the detainee’s right to attend the hearing. At subsequent involuntary inpatient commitment renewal hearings, the court or the patient may waive appearance, but if the patient waives, the judge must determine that the waiver is knowing and voluntary. Fla. Stat. Ann. § 394.467 (2021) |
| ID | “The proposed patient shall be required to be present at the hearing unless the court determines that the mental or physical state of the proposed patient is such that his presence at the hearing would be detrimental to the proposed patient's health or would unduly disrupt the proceedings …” Idaho Code § 66-329 (2021) | Yes | |
| IN | “The individual’s right under this subdivision is subject to the court’s right to do the following: (A) Remove the individual if the individual is disruptive to the proceedings. (B) Waive the individual’s presence at a hearing if the individual’s presence would be injurious to the individual’s mental health or well-being.” Ind. Code § 12-26-2-2 (2021) | Yes | By case law, the respondent may personally waive the right to appear, but the waiver must be knowing, intelligent and voluntary. If the respondent’s appearance is waived by the trial court, then it must be done at the beginning of the proceeding and if improper, it is subject to harmless-error review. A.A. v. Eskenazi Health/Midtown CMHC, 97 N.E.3d 606, 608 (Ind. 2018) |
| KS | “…The proposed patient shall be present at the hearing unless the attorney for the proposed patient requests that the proposed patient's presence be waived and the court finds the person's presence at the hearing would be injurious to their welfare …However, if the proposed patient states in writing to the court or such person's attorney that such patient wishes to be present at the hearing, the person's presence cannot be waived.” K.S.A. § 59-2965 (2021) | Yes | Proposed patients for commitment in noncustodial circumstances, cannot have their presence at the hearing(s) waived. K.S.A. § 59-2962 (2021) |
| NJ | “…The right to be present at the court hearing unless the court determines that because of the person’s conduct at the court hearing the proceeding cannot reasonably continue while the person is present …” N.J. Stat. § 30:4-27.14 (2021) | Yes | |
| NC | “…With the consent of the court, counsel may in writing waive the presence of the respondent.” N.C. Gen. Stat. § 122C-268 (2021) | No “(b) The respondent shall be present at the hearing.” N.C. Gen. Stat. § 122C-267 (2021) | Per NC Civil Commitment Manual, if the respondent is not contesting commitment, the attorney can stipulate to the facts alleged in the petition or stipulate that the information in those documents would be the testimony of the authors. The attorney can then waive the respondent’s presence at an inpatient commitment hearing. If the patient is not resisting the commitment (e.g., because of catatonia, acute illness, etc.) then the attorney can stipulate to the facts alleged in the petition and a motion for waiver of appearance is usually filed. Turnage B, Rubin J, Whiteside D, Newman L. Involuntary Commitment of Adults and Minors for Mental Health Treatment. In Rubin J, editor. North Carolina Civil Commitment Manual. 2nd ed. Chapel Hill: UNC School of Government; 2011. p. 27-28. |
| OK | “The person shall be present at the hearing or jury trial unless the court finds that the presence of the person alleged to be a person requiring treatment makes it impossible to conduct the hearing or trial in a reasonable manner or that the presence of the person would be injurious to the health or well-being of such person.” 43A Okl. St. § 5-411 (2021) | Yes | |
| Category: Involuntary commitment may occur on the basis of physician certificate with no requisite hearing involving respondent | |||
| State | Policy and statute reference | Applicability to Outpatient Commitment. If not applicable, relevant outpatient commitment statute language | Hearing procedures by court rules, case law, or common practice |
| NY | “If, at any time prior to the expiration of sixty days from the date of involuntary admission of a patient on an application supported by medical certification, he or any relative or friend or the mental hygiene legal service gives notice in writing to the director of request for hearing on the question of need for involuntary care and treatment, a hearing shall be held as herein provided.” NY CLS Men Hyg § 9.31 (2021) | No “Upon receipt of the petition, the court shall fix the date for a hearing … If the subject of the petition does not appear at the hearing, and appropriate attempts to elicit the attendance of the subject have failed, the court may conduct the hearing in the subject’s absence.” NY CLS Men Hyg § 9.60 (2021) | |
| Category: Dearth of language addressing hearing policy or procedures, ability to stipulate to commitment or waive respondent appearance | |||
| State | Policy and statute reference | Applicability to Outpatient Commitment. If not applicable, relevant outpatient commitment statute language | Hearing procedures by court rules, case law, or common practice |
| CT | Conn. Gen. Stat. § 17a-498 (2021) | N/A | |
| IA | Iowa Code § 229.10 (2021) | Per Iowa Court Rules, there is an exception to hearing appearance in which the attorney can request the respondent’s absence. Iowa Ct. R. 12.19(2) | |
| VT | 18 V.S.A. § 7615 (2021) | 18 V.S.A. § 7618 (2021) | By practice, parties may submit a stipulated order of involuntary treatment to the court. Source: 2020 NASMHPD survey |
| CO | C.R.S. 27-65-111 (2021) | ||
| KY | KRS § 202A.076 (2021) | KRS § 202A.0819 (2021) | |
| ME | 34-B M.R.S. § 3864 (2021) | 34-B M.R.S. § 3873-A (2021) | |
| MD | Md. HEALTH-GENERAL Code Ann. § 10-632 (2021) | N/A | |
| NV | Nev. Rev. Stat. Ann. § 433A.290 (2021) | Nev. Rev. Stat. Ann. § 433A.310 (2021) | |
| OR | ORS § 426.095 (2021) | ORS § 426.127 (2021) | |
| PA | 50 P.S. § 7303 (2021) | ||
| VA | Va. Code Ann. § 37.2-814 (2021) | ||
| WA | Rev. Code Wash. (ARCW) § 71.05.217 (2021) | Rev. Code Wash. (ARCW) § 71.05.148 (2021) | |
| WV | W. Va. Code § 27-5-2 (2021) | W. Va. Code § 27-5-4 (2021) | |