When used in this article, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:

(1) Mental illness.

A psychiatric disorder of thought and/or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. Mental illness, as used herein, specifically excludes the primary diagnosis of epilepsy, mental retardation, substance abuse, including alcoholism, or a developmental disability.

(2) State mental health facility.

A mental health facility operated by the Alabama State Department of Mental Health and Mental Retardation.

(3) Designated mental health facility.

A mental health facility other than a state mental health facility designated by the State Department of Mental Health and Mental Retardation to receive persons for evaluation, examination, admission, detention or treatment pursuant to the provisions of this article.

(4) Commissioner.

The Commissioner of the Alabama State Department of Mental Health and Mental Retardation.

(5) Outpatient treatment.

Treatment being provided to a person in a nonresidential setting and who is not admitted for 24-hour-a-day care.

(6) Inpatient treatment.

Treatment being provided to a person at a state mental health facility or a designated mental health facility which has been specifically designated by the department for inpatient treatment.

(7) Respondent.

A person for which a petition for commitment to mental health services has been filed.

(8) Department.

The Alabama State Department of Mental Health and Mental Retardation.

(9) Involuntary commitment.

Court ordered mental health services in either an outpatient or inpatient setting.

(a) Any person may file a petition seeking the involuntary commitment of another person. The petition shall be filed in the probate court of the county in which the respondent is located. The petition shall be in writing, executed under oath, and shall include the following information:

(1) The name and address, if known, of the respondent.

(2) The name and address, if known, of the respondent's spouse, legal counsel, or next-of-kin.

(3) That the petitioner has reason to believe the respondent is mentally ill.

(4) That the beliefs of the petitioner are based on specific behavior, acts, attempts, or threats, which shall be specified and described in detail.

(5) The names and addresses of other persons with knowledge of respondent's mental illness who may be called as witnesses.

The petition may be accompanied by any other relevant information.

(b) The home address and the telephone number of the petitioner shall be excluded from the copy of the petition seeking the involuntary commitment provided to the respondent, however, if there is no other available address to contact the petitioner, then the home address of the petitioner shall be provided.

(a) If at the final hearing on a petition seeking to involuntarily commit a respondent, the probate judge finds, based on clear and convincing evidence, that the respondent meets the criteria for involuntary commitment, an order shall be entered for:

(1) Outpatient treatment; or

(2) Inpatient treatment.

(b) The petition for involuntary commitment shall be dismissed if the criteria for commitment is not proved.

A respondent may be committed to outpatient treatment if the probate court finds, based upon clear and convincing evidence that: (i) the respondent is mentally ill; (ii) as a result of the mental illness the respondent will, if not treated, continue to suffer mental distress and will continue to experience deterioration of the ability to function independently; and (iii) the respondent is unable to make a rational and informed decision as to whether or not treatment for mental illness would be desirable.

(a) At the final hearing on a petition for commitment seeking the involuntary commitment of a respondent, the probate court may order that the respondent participate in outpatient treatment provided by a designated mental health facility.

(b) The probate court shall not order outpatient treatment unless the designated mental health facility has consented to treat the respondent on an outpatient basis under the terms and conditions set forth by the probate court.

(c) If outpatient treatment is ordered, the order of the probate court may state the specific conditions to be followed and shall include the general condition that the respondent follow the directives and treatment plan established by the designated mental health facility.

(d) Pursuant to this section, an order for outpatient treatment shall not exceed 150 days.

(e) The designated mental health facility shall immediately report to the probate court any material noncompliance with the outpatient treatment order. The report shall set forth the need for revocation of the outpatient treatment order and shall be verified and filed with the probate court.

(f) The probate court shall set a hearing to consider the motion for revocation of the outpatient treatment order. The hearing procedures and safeguards set forth in this article, applicable to a petition for involuntary commitment, shall be followed. If at the hearing, the probate court finds, based upon clear and convincing evidence, that the conditions of outpatient treatment have not been met, and that the respondent meets inpatient criteria, the probate court may enter an order for commitment to inpatient treatment.

(g) No county shall be financially responsible for the cost of provision of outpatient mental health services ordered pursuant to this article. The cost for the provision of outpatient services are not allowable costs under Section 22-52-14.

(a) A respondent may be committed to inpatient treatment if the probate court finds, based upon clear and convincing evidence that: (i) the respondent is mentally ill; (ii) as a result of the mental illness the respondent poses a real and present threat of substantial harm to self and/or others; (iii) the respondent will, if not treated, continue to suffer mental distress and will continue to experience deterioration of the ability to function independently; and (iv) the respondent is unable to make a rational and informed decision as to whether or not treatment for mental illness would be desirable.

(b) If the probate judge finds that no treatment is presently available for the respondent's mental illness, but that confinement is necessary to prevent the respondent from causing substantial harm to himself or to others, the order committing the respondent shall provide that, should treatment for the respondent's mental illness become available at any time during the period of the respondent's confinement, such treatment shall be made available to him immediately.

(a) At the final hearing on a petition for involuntary commitment or a hearing for the revocation of a prior order for commitment to outpatient treatment, the probate court may order that the respondent be committed to: (i) the department for inpatient treatment at a state mental health facility, or (ii) the department for inpatient treatment at a designated mental health facility.

(b) Pursuant to this section, an order for inpatient treatment shall not exceed 150 days.

(c) No county shall be required to pay the cost of inpatient treatment provided at a state mental health facility or inpatient treatment authorized by the department at a designated mental health facility.

(a) A petition for renewal of an inpatient commitment order may be filed by the director of a state mental health facility or his designee at least 30 days prior to the expiration of the current commitment order. The petition, together with a copy of the original commitment order and copies of any subsequent renewal commitment orders, shall be filed with the probate court of the county where the facility is located. The petition shall explain in detail why renewal of the order is being requested, and shall further explain in detail why less restrictive conditions of treatment are not appropriate.

(b) Such probate court may consider, hear, and enter appropriate orders pursuant to this section or may request that the case be heard by a special judge of probate.

(c) Whenever and wherever it shall become necessary that a special judge of probate be provided to hear and enter appropriate orders with regard to the renewal of commitment orders pursuant to the provisions of this section, then it shall be the responsibility of the probate judge in the county so affected by location of the state mental health facility to determine, select and appoint from time to time such probate judge; who shall be paid that compensation as determined by the probate judge in that county not to exceed $100.00 per case. The fee set to compensate the special probate judge shall be allowable costs under Section 22-52-14. The county wherein the hearing for the renewal of a commitment order is held shall also be allowed a fee of $20.00 per case to compensate the county for additional record keeping. This compensation shall be allowable costs under Section 22-52-14.

(d) Any special judge of probate appointed under the provisions of subsection (c) shall be vested with all authority, duties, responsibilities and judicial functions of the probate court having jurisdiction over any person involuntarily committed by the probate court of any county in the State of Alabama.

(e) Any special judge of probate appointed under the provisions of subsection (c) shall be a citizen of the State of Alabama, shall have previously served for a minimum of six years as a judge of probate in this state, or shall be licensed to practice law in this state, and shall take the present oath of office upon entering his official duties and serve without bond.

(f) Any hearing conducted under the provisions of this section shall be conducted in the facilities provided by the department where such persons committed as patients are located.

(g) The judge of probate, hearing the case, shall conduct a hearing, within 30 days after the date of petition, to consider the petition for renewal of the commitment order.

(h) The judge of probate of the county where the facility is located shall appoint an attorney to serve as guardian ad litem to represent and to protect the rights of the respondent. Such appointment shall be in writing and acceptance of appointment shall be returned to the judge of probate at least five days prior to the hearing.

(i) Adequate written notice shall be provided to the respondent prior to the hearing.

(j) The commissioner shall designate one or more members of his staff to serve as advocate in support of the petition and such advocate shall be required to be an attorney.

(k) The hearing shall be conducted in accordance with Section 22-52-9. A copy of the order shall be forwarded to the probate court having original jurisdiction. The burden of proof shall be to prove, based on clear and convincing evidence, the criteria as prescribed in this article.

(l) The department shall provide the advocate in support of the petition and the expert witness at no cost to the State General Fund; and all other costs allowable by law shall be paid as prescribed in Section 22-52-14.

(m) Any order renewing an order for commitment to inpatient treatment shall not exceed a period of one year.

A respondent committed to inpatient treatment may be transferred from any treatment facility to another treatment facility when deemed to be in the best interest of the respondent. Any law enforcement officer or any designated employee of the department or designated mental health facility shall have the authority to transport committed respondents from any facility to any other facility within the State of Alabama so long as it is in the best interest of the committed respondents.

(a) When the judge of probate of a county enters an order for the involuntary commitment of a person pursuant to Section 22-52-10.1, and the order is for a final commitment for inpatient treatment to the Department of Mental Health and Mental Retardation or a Veterans' Administration Hospital, or as otherwise provided by law, and the order is based on evidence produced in open court from law enforcement personnel that the committed person has shown a history of the inappropriate use of firearms or poses a threat to use firearms inappropriately, the judge shall immediately forward the order to the Criminal Justice Information Center and the order shall be entered in the Criminal Justice Information System. The order shall be forwarded to the Criminal Justice Information Center in the manner as the Criminal Justice Information Center Commission shall provide. The Criminal Justice Information Center shall as soon as possible thereafter enter the order in the National Instant Criminal Background Check System (NICS) and the information shall be entered into the NICS Index Denied Persons File. The records maintained pursuant to this section shall only be used for purposes of determining eligibility to purchase or transfer a firearm. Information furnished shall not include confidential medical or treatment records, confidential tax or financial data, library records, or other personal information.

(b) When any individual who has been committed is released from commitment, the person may petition the judge of probate for a review of the person's mental capacity to purchase a firearm. After review, the judge of probate may enter an order finding that the person is not subject to a mental infirmity requiring a limitation on the purchase of a firearm. A copy of the order shall be forwarded to Criminal Justice Information Center directing that the prior order be removed from the Criminal Justice Information System. Thereafter the Criminal Justice Information Center shall, as soon as possible, redact the prior order from the National Instant Criminal Background Check System (NICS) or shall request that said redaction be done.

The probate court involuntarily committing a respondent shall retain jurisdiction over the respondent concurrently with the probate court of the county in which the respondent is subsequently located for so long as the respondent is subject to the commitment order, and the probate court committing the respondent may hold any hearing regarding the respondent at any place within the State of Alabama where the respondent may be located.

(a) The department shall designate certain mental health facilities that shall have the authority to receive respondents for evaluation, admission, detention, treatment and discharge pursuant to the provisions of this chapter.

(b) The department shall establish standards of care and services to be rendered by each designated mental health facility and shall certify those facilities designated to provide evaluation, admission, detention, treatment and discharge.

(c) The probate judges of the State of Alabama may commit respondents, who meet the criteria for involuntary commitment, to a designated mental health facility. Provided, however, that such designated mental health facility shall not be required to accept a committed respondent if they are unable to provide proper services and treatment.

(d) The designated mental health facilities shall have the authority to contract with public or private mental health facilities, subject to approval by the department, for care and treatment of committed respondents.

With regard to those patients who shall have been committed to state mental health facilities for 150 days or more as of January 1, 1992, the directors of such facilities or their designees shall petition for renewal of the commitment orders affecting such patients as appropriate. Said petitions shall be filed within a reasonable period of time not to exceed one year. All proceedings under this section shall be conducted in accordance with the provisions of Section 22-52-10.6.

The probate judge shall order one or more persons or law enforcement officers to convey any respondent involuntarily committed for inpatient treatment to the department or to a designated mental health facility as the court may order, and all necessary expenses incurred by the persons or officers conveying the respondent shall be taxed as costs of the proceeding.

(a) Any respondent involuntarily committed by the probate court to the custody of the department or designated mental health facility as the court may order, who is entitled to care and treatment at a facility operated by the United States Veterans Administration or other agency of the United States government, may be transferred by the department to the United States Veterans Administration or other agency of the United States on such terms and conditions as may be agreed upon by the department and the Veterans Administration or other agency. Upon such transfer, the committed respondent shall be subject to the applicable regulations of the Veterans Administration or other agency of the United States.

(b) The chief officer of the Veterans Administration Hospital or other facility operated by the United States to which committed respondents are transferred, as provided in subsection (a) or under the law in effect at the time of commitment, shall have the same powers as are exercised by the directors of state mental health facilities with respect to the retention, transfer, treatment or discharge of committed respondents, and such chief officer and the physicians of such facility shall be exempt from attending court as witnesses in the same manner and to the same extent provided by law for directors and physicians of state mental health facilities.

(c) The judgment or order of commitment by a court of competent jurisdiction of another state or of the District of Columbia committing a respondent to the United States Veterans Administration or other agency of the United States government or any facility operated by such administration or agency for care or treatment shall have the same force and effect as to the respondent while in this state as in the state or district in which is situated the court entering such judgment or making such order.

In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition and any attorney or guardian ad litem appointed by the probate judge for the person sought to be committed shall be set at the rates established by Section 15-12-21; and any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge; and all other costs allowable by law shall be paid by the state general fund upon order of the probate judge; except, that if the petition is denied and the petitioner is not indigent and is not a law enforcement officer or other public official acting within the line and scope of his duties, all costs may be taxed against the petitioner, or if the petition is granted and the person sought to be committed is not indigent, the probate judge may order all costs paid from the estate of the person committed.

An appeal from an order of the probate court granting a petition seeking to commit a respondent to the custody of the department or designated mental health facility as the court may order lies to the circuit court for trial de novo unless the probate judge who granted the petition was learned in the law, in which case the appeal lies to the Alabama Court of Civil Appeals on the record. Notice of appeal shall be given in writing to the probate judge within five days after the respondent has received actual notice of the granting of the petition and shall be accompanied by security for costs, to be approved by the probate judge, unless the probate judge finds that the respondent is indigent, in which case no security for costs shall be required. Upon the filing of a notice of appeal, the probate judge shall determine and enter an order setting forth the limitations to be placed upon the liberty of the respondent pending the appeal. Upon the filing of a notice of appeal, the probate judge shall certify the record to the clerk of the reviewing court. The petition shall be set for hearing by the reviewing court within 60 days of the date the notice of appeal is filed in the probate court, and such hearing shall not be continued except upon motion in writing by the respondent for good cause. The costs of the proceedings in the reviewing court shall be taxed in the same manner as in the probate court. All requirements relative to hearings in probate court shall apply to appeals heard in the circuit court.

The provisions of this article shall not apply to commitment to the custody of the State Department of Mental Health and Mental Retardation of mentally ill minors or children.

Notwithstanding any other language in this article, the following limitations shall apply. No public facility other than the Department of Mental Health and Mental Retardation may be required (as distinguished from authorized) by the probate court to perform any mental evaluation of a person sought to be committed for use in any final commitment hearing except:

(1) In an emergency case wherein no other source or agency which is funded or mandated by federal law, state law or both to provide such services is objectively capable of performing such evaluation within the time limit imposed by law; or

(2) In an emergency case wherein no other source or agency operates to perform such evaluation in such emergency case, a public hospital may be required to accept a person sought to be committed for the provision of hospital care, if such person is admitted to the public hospital or other facility by a medical doctor who has agreed to provide professional services, including evaluation of the patient, prior to admission to the public hospital or other facility.

In all stages in the proceedings, including final commitment, public facilities may be utilized only with and upon their concurrence and upon written certification by the Department of Mental Health and Mental Retardation that no facility of the mental health and mental retardation department is available or capable of performing said mental evaluation. The probate judge shall order and the sheriff shall deliver said person to the nearest available facility of the department of mental health and mental retardation for evaluation. The sheriff shall receive reimbursement for expenses in transporting said persons to and from the facility at the rate allowed in section 36-7-20. The cost of conveying such person shall be taxed as costs of the proceeding.

(a) When any petition is filed seeking the involuntary commitment of a respondent, the probate judge shall immediately review the petition and shall require the petitioner to be sworn and answer under oath questions regarding the petition and the respondent.

(b) If it appears from the face of the petition or from the testimony of the petitioner that the petition is totally without merit, the probate judge shall order the petition dismissed without further proceedings.

When any petition has been filed seeking the involuntary commitment of a respondent and such petition has been reviewed by the probate judge, the probate judge shall order the sheriff of the county in which the respondent is located to serve a copy of the petition, together with a copy of the order setting the petition for a hearing, upon the respondent. Said notice shall include the date, time and place of the hearing; a clear statement of the purpose of the proceeding and the possible consequences to the subject thereof; the alleged factual basis for the proposed commitment; a statement of the legal standards upon which commitment is authorized; and a list of the names and addresses of the witnesses who may be called to testify in support of the petition. The hearing shall be preceded by adequate notice to the respondent.

When used in this article, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:

(1) CAPACITY TO PROCEED OR CONTINUE TO TRIAL. Whether or not a defendant accused of a crime:

a. Understands the nature of the charges preferred against him; and

b. Is capable of assisting his attorney in the preparation of the defense of his case.

(2) COMMISSIONER. The commissioner of the Department of Mental Health and Mental Retardation of the State of Alabama.

(3) SUPERINTENDENT. The superintendent or director of Bryce Hospital located in Tuscaloosa County, the superintendent or director of Searcy Hospital located in Mobile County or the superintendent or director of any such facility as defined in subdivision (4) of this section.

(4) FACILITY. Any state-owned or state-operated hospital or other facility, whether currently operating or to be operated in the future, utilized for the diagnosis, care, treatment, training or hospitalization of persons who are mentally ill or who are believed to be mentally ill and any other appropriate facility within the State of Alabama approved for such purpose by the Department of Mental Health and Mental Retardation, excluding those general hospitals owned by a state educational institution which is a public corporation organized under the acts of the Legislature of the State of Alabama. Such exclusion, however, shall not deny the governing authority of such hospital the right to contractually agree to provide services to the mentally ill.

(a) Upon certification by the superintendent of Bryce or Searcy Hospital or any other facility so designated by the commissioner that any person accused of a crime and committed to the custody of the department in one of its facilities has been determined by appropriate members of the medical staffs of said facilities as designated by the superintendent to be unable to attain the capacity to proceed to trial in the foreseeable future, the commissioner or his designee is hereby authorized to petition the judges of probate of Tuscaloosa or Mobile Counties or any judge of probate where such facility exists for an order of civil commitment to the Department of Mental Health and Mental Retardation. All of the subsequent provisions of this article shall apply where the commissioner seeks such order.

(b) Nothing in this section shall be construed to require any prosecuting attorney of the state, county or municipality to dismiss pending criminal charges against any defendant who has been voluntarily or involuntarily civilly committed because a determination was made that he did not have the capacity to proceed or continue to trial in the foreseeable future.

(c) Civil commitment to the custody of the Department of Mental Health and Mental Retardation shall have the effect of tolling the applicable statute of limitation of the crime for which the defendant is charged; and, once the defendant is released from said custody, the prosecuting attorney shall forthwith reinstate the charges and proceed with the prosecution of the case.

Where the superintendent of Bryce or Searcy Hospital or any other facility so designated by the commissioner, after evaluation by appropriate members of the medical staffs of said facilities as so designated by the superintendent, has determined that any person accused of a crime and committed to the custody of the department in one of its facilities is competent to stand trial, or where the superintendent has been notified in writing by the committing court that charges have been nolle prossed or otherwise dismissed against any person currently confined to the custody of such facility, it shall be the duty of the superintendent to immediately notify in writing the court from which the person was committed. The court shall forthwith order the sheriff to remove the person from said facility back to the county within 72 hours of receipt of such notice, Saturdays, Sundays and holidays excluded.

Where any person who is currently in the custody of the department of mental health has been adjudicated 'not guilty by reason of insanity' pursuant to the provisions of Sections 15-16-24, 15-16-25 and 15-16-40, the commissioner or his designee shall petition the judges of probate of Tuscaloosa or Mobile Counties or any judge of probate where such facility exists for an order of civil commitment to the Department of Mental Health and Mental Retardation.

(a) Where any person is in the custody of the Department of Mental Health and Mental Retardation pursuant to the provisions of Article 4 of this chapter, the commissioner shall direct the superintendent of Bryce or Searcy Hospital or any other facility so designated by the commissioner to reevaluate the mental condition of such person for a determination as to whether or not he or she meets the minimum standards for civil commitment as defined in Section 22-52-37. Where the sentence for which said person was committed has expired and where said person meets the minimum standards for involuntary civil commitment, the commissioner or his designee is hereby authorized to petition the judges of probate of Tuscaloosa or Mobile Counties or any judge of probate where such facility exists for an order of civil commitment to the Department of Mental Health and Mental Retardation. All of the subsequent provisions of this article shall apply where the commissioner seeks such an order.

(b) Where the evaluations report that any person does not meet the minimum standards for civil commitment, the superintendent shall immediately notify in writing the commissioner of the department of corrections of the State of Alabama, who shall forthwith remove the person within 72 hours of receipt of such notice, Saturdays, Sundays and holidays excluded, back to the custody of the Department of Corrections.

(a) Upon application of the commissioner or his designee, the Governor may appoint one or more special judges of probate for the purpose of considering, hearing and entering appropriate orders with regard to the commitment or continued custody of such persons who have been committed by any court of this state to any facility pursuant to the provisions of Sections 15-16-24 and 15-16-40, accused of a crime but not yet tried, or transferred to such facility on order of the Governor, pursuant to the provisions of Article 4 of this chapter.

(b) A special judge of probate appointed under the provisions of this article shall be vested with all authority, duties, responsibilities and judicial functions of the probate court having jurisdiction over any person involuntarily committed by the probate court of any county in the State of Alabama to any facility operated by the Department of Mental Health and Mental Retardation. Such jurisdiction of the judges of probate of Tuscaloosa and Mobile Counties or any special judge of probate appointed under the provisions of the article shall be concurrent with the probate court having jurisdiction over the commitment or continued custody of such insane person.

(c) Any hearing conducted by the probate judge of Tuscaloosa or Mobile Counties or any special judge of probate appointed under the provisions of this article shall be conducted in the facilities provided by the Department of Mental Health and Mental Retardation wherein such persons committed as a patient are located.

(d) Any special judge of probate appointed under the provisions of this article shall be a citizen of the State of Alabama and licensed to practice law in this state; he shall not, however, be required to be a resident of the county or counties for which he is appointed.

(a) There is hereby appropriated to the State Comptroller from the general fund of the State Treasurer the sum of $20,000.00 for the purpose of paying salaries and expenses of such special probate judges appointed under the provisions of this article.

(b) All special judges of probate appointed under the provisions of this article shall be compensated by the State Comptroller in such amount and manner as prescribed by the Governor in his letter of appointment.

(a) Any civil commitment proceedings are to be conducted in accordance with the following constitutional due process standards:

(1) Adequate notice of the hearing and its purpose shall be given sufficiently in advance of the scheduled proceedings to permit a reasonable opportunity to prepare therefor.

(2) The person to be committed shall have the right to attend the hearing unless the court, after appropriate inquiry, determines that he or she is so mentally or physically ill as to be incapable of attendance.

(3) The subject of the hearing shall be informed of his right to counsel and to the appointment of counsel if indigent. Where the commitment of a presently confined patient is sought, a guardian ad litem who is an attorney shall be appointed.

(4) The guardian ad litem shall be entitled to a reasonable fee as compensation for services rendered for time in court and out of court, to be determined by the judge hearing the case. The decision of the judge as to the reasonableness of the fee shall be final, and the fee shall be payable, initially, by the Department of Mental Health and Mental Retardation. Such compensation shall, within 90 days, be reimbursed to the Department of Mental Health and Mental Retardation by the county from which the patient was originally committed by the circuit court acting pursuant to its powers in Sections 15-16-21, 15-16-22, 15-16-24 and 15-16-40 or the county from which the patient was originally sentenced to the state penitentiary before transfer by the Governor pursuant to the provisions of Article 4 of this chapter.

(5) Any expenses incurred in carrying out the provisions of this section shall be reasonable as determined by the judge hearing the case, and his decision shall be final. Such expenses shall be payable, initially, by the Department of Mental Health and Mental Retardation. Such expenses shall, within 90 days, be reimbursed to the Department of Mental Health and Mental Retardation in the same manner as provided in subdivision (a)(4) of this section.

(6) Commitment hearings are to be conducted in surroundings as noncoercive as possible, and appropriate street dress made available to each subject, if not already available.

(7) No person shall be committed unless the judge finds the following minimum standards for civil commitment have been met:

a. That he is mentally ill;

b. That he poses a real and present threat of substantial harm to himself or to others;

c. That the danger has been evidenced by some factual basis to support the facility staffs' recommendation that recommitment, commitment or continued custody is necessary for the person's health and well-being. In order for a person to be committed or recommitted to the custody of the Department of Mental Health and Mental Retardation, the evidence presented must clearly and convincingly lay a factual basis for the conclusion that continued custody is necessary;

d. That there is treatment available for the illness diagnosed or that confinement of the dangerous but untreatable individual is necessary for his and the community's safety and well-being; and

e. That commitment or recommitment is the least restrictive alternative necessary and available for treatment of the person's illness.

(8) The necessity for commitment must be proved by evidence which is clear, unequivocal and convincing.

(9) At the hearing, the subject shall have the right to offer evidence, to be confronted with the witnesses against him and to cross-examine them and shall have the privilege against self-incrimination. The rules of evidence applicable in other judicial proceedings in this state shall be followed in involuntary civil commitment proceedings.

(10) A full record of the proceedings, including findings for adequate review, shall be compiled and retained by the probate court.

(11) The guardian ad litem shall not be limited with respect to his power to waive any of his client's rights when, in his judgment and in the judgment of the judge of probate or, as the case may be, the circuit judge, after appropriate findings of fact, waiver is in the best interest of the client.

(b) An appeal from an order of the probate court either granting or denying a petition seeking to commit a person to the custody of the Department of Mental Health and Mental Retardation lies to the circuit court of Tuscaloosa or Mobile Counties for a trial de novo of the case without a jury. Notice of appeal shall be given in writing to the judge of probate within five days of the granting or denying the petition. Upon the filing of a notice of appeal, the person sought to be committed to, recommitted to or continued in the custody of the Department of Mental Health and Mental Retardation shall remain in the custody of said department pending an adjudication of the case in the circuit court. Upon the filing of a notice of appeal, the judge of probate shall certify the record to the clerk of the circuit court. The petition shall be set for a hearing by the circuit court within 30 days of the date of filing the notice of appeal. The hearing shall not be continued except upon motion in writing by the person sought to be committed for good cause. The costs of the proceedings in circuit court shall be taxed in the manner as in the probate court. All the requirements relative to hearings in the probate court shall apply to appeals heard in the circuit court.

(a) At the time when any petition has been filed seeking the involuntary commitment of a respondent, the probate judge shall appoint a guardian ad litem to represent and to protect the rights of the respondent, and shall determine if the respondent has the funds with which to employ an attorney to represent the respondent and if the respondent has the mental ability to secure the services of an attorney. If the respondent does not have funds with which to employ an attorney or does not have the mental ability to secure the services of an attorney, the probate judge shall appoint an attorney, who may be the same person as the guardian ad litem, to represent the respondent. The probate judge shall immediately inform the attorney so appointed of his appointment.

(b) No statement made or act done by the respondent in the presence of the probate judge prior to the respondent obtaining the services of an attorney, by appointment or otherwise, shall be considered by the probate judge in determining whether the respondent should be committed.

The probate judge shall appoint an attorney to serve as the advocate in support of the petition to commit in all matters regarding a petition to commit. If the person or persons filing a petition to have a person committed wish to employ an attorney of their own choosing to appear in support of the petition, they may do so, and such attorney shall serve in lieu of attorney appointed by the probate judge.

For the purposes of this article, unless otherwise indicated, the following terms shall have the meanings respectively ascribed to them by this section:

(1) DEPARTMENT. Alabama Department of Mental Health and Mental Retardation.

(2) INSTITUTION. Any state owned or state operated hospital, school or institution for the diagnosis, care, treatment, training, detention or rehabilitation of the mentally retarded individuals.

(3) SUPERINTENDENT. The chief administrative officer of any institution or the designated deputy, agent or representative of the superintendent, including his successor or successors.

(4) PHYSICIAN. A doctor of medicine licensed to practice in this state.

The superintendent may receive for observation and diagnosis any resident of Alabama for whom application is made by his father, mother or guardian or, when neither parent nor the guardian is available and capable, by an adult next of kin, supplying such data as the superintendent may require; and, if found to be a mentally retarded individual, such individual may be admitted to the institution for care, treatment, training and rehabilitation for such period and under such conditions as may be authorized by law. Should the institution at any time not be able to accommodate all who should be admitted thereto under this section, preference in admission shall be given to children and women of childbearing age.

The superintendent of any institution shall discharge any mentally retarded individual admitted voluntarily whose institutionalization, care, training and treatment he deems to be no longer advisable. He may also discharge any mentally retarded individual admitted voluntarily if to do so would, in his judgment, contribute to the most effective use of the institution in the institutionalization, care, training and treatment of mentally retarded individuals; provided, that in no event shall any such individual be discharged if, in the judgment of the superintendent of such institution, such discharge would be harmful to the mentally retarded individual or others.

A mentally retarded individual admitted voluntarily, whose discharge is requested in writing by his parent, guardian or adult next of kin who signed the application, shall be discharged within 15 days of receipt of such written request by the superintendent; except, that if, in the superintendent's opinion, the discharge of the individual would be unsafe, he shall file with the probate court of the individual's residence a certificate stating that, in his opinion, the discharge of the mentally retarded individual would be unsafe for the individual and others, and setting forth the facts upon which such opinion is based, a copy being sent by registered or certified mail to the individual's parent, legal guardian or adult next of kin. Such certification shall be deemed to be a certificate of a physician and an application for an involuntary order to the care of the said individual as provided for in Section 22-52-55, and proceedings shall be had thereon as provided in said Section 22-52-55. The individual shall remain at the same institution as designated by the probate judge pending disposition of the proceeding.

The department may receive any mentally retarded individual who is a resident of Alabama on court order pursuant to the provisions of Section 22-52-55 or on court order of any juvenile court or probate court of this state as provided for by law; provided, that the department has advised the court that adequate facilities are available for said individual.

(a) Upon the written application of any responsible person, on oath, stating that he believes a resident of Alabama to be a mentally retarded individual and in need of care, training, treatment, hospitalization or rehabilitation and further believes that the father, mother or guardian of said individual has failed to secure proper care, training, treatment, hospitalization or rehabilitation for him, the probate court of the county in which the allegedly mentally retarded individual is found shall take jurisdiction.

(b) The probate court may, at any time during the proceedings, take the allegedly mentally retarded individual into custody if deemed necessary for the protection of said individual, and the probate judge may appoint an attorney or guardian ad litem to serve on the examining committee for the protection of all legal rights of the retarded individual. An individual taken into custody pursuant to this subsection or ordered to be hospitalized pursuant to subsection (c) of this section may be detained in any suitable home or any other suitable facility under such reasonable conditions as the court may prescribe.

(c) The probate judge shall appoint two physicians to examine said individual and report to the court their findings as to the mental condition of said individual and his need of being ordered to the care of the department. The judge of probate may issue subpoenas for witnesses to appear before the two physicians and, on their failure to appear, he may take the same steps to compel attendance as if the proceedings were before his court.

(d) The two physicians shall file their written report with the court within five days after their appointment. If said report is not unanimous to the effect that it finds the allegedly mentally retarded individual to be a mentally retarded individual and in need of being ordered to the care of the department, the probate judge shall, without taking further action, dismiss the application and terminate the proceedings.

(e) If the physicians' report is unanimous to the effect that it finds said individual to be a mentally retarded individual and in need of being ordered to the care of the department and the department has advised the court that such individual can be accepted, the judge of probate shall enter an order directed to the department requiring it to receive said individual.

(f) The provisions of this section shall not apply to commitment to the custody of the state Department of Mental Health and Mental Retardation of mentally retarded minors or children.

The probate judge shall draw his warrant upon the treasurer of his county for such sum or sums as shall be actually necessary or requisite to defray the expenses of the proceeding provided for in Section 22-52-55 and for conveying the mentally retarded individual from such county to the department. The sum to be paid to the appointed physicians and attorney or guardian ad litem shall not exceed $10.00 and actual expenses. The total cost to be paid to the probate judge for such proceeding shall be the sum of $25.00. In the event the application is dismissed, the cost to be paid to the judge shall be $10.00; provided, that no money shall be drawn from the county treasury for the purposes set forth in this section when the mentally retarded individual, his estate or person or persons responsible or legally obligated for the support of such individual shall be able or sufficient to defray such expenses; provided further, that the provisions of this section shall not apply to commitment to the custody of the state Department of Mental Health and Mental Retardation of mentally retarded minors or children.

The superintendent of any institution shall, as frequently as practicable, examine or cause to be examined, every individual in his institution and, whenever he determines any individual to be no longer in need of institutionalization, may discharge him, pursuant to the rules and regulations of the department or, whenever he determines that conditions are favorable to the continued rehabilitation of said individual, may place him on leave for such time and under such conditions as the superintendent may prescribe.

(a) The department may transfer or authorize the transfer of a mentally retarded individual from one institution for the mentally retarded to another institution for the mentally retarded if the department determines it would be consistent with the training, treatment, hospitalization or rehabilitation needs of such individual to do so.

(b) On recommendation of the superintendent of any institution for the mentally retarded and with the approval of the court having jurisdiction of the case, the department may transfer any mentally retarded individual to any state-owned and state-operated psychiatric hospital or other psychiatric hospital subject to the supervision and administrative control of the department. The transfer shall be made upon the order of the department or its duly authorized agent or agents and without any additional formal court order.

(a) When a petition is filed seeking the involuntary commitment of a respondent, the probate judge with whom the petition is filed shall notify the department or designated mental health facility of the pendency of the petition in the manner and with such other information as designated by the department.

(b) The probate judge shall notify the department or a designated mental health facility of the date of the final hearing on the petition to commit.

(a) When a petition has been filed seeking to have limitations placed upon the liberty of a respondent pending the outcome of a final hearing on the merits, the probate judge shall order the sheriff of the county in which the respondent is located to serve a copy of the petition upon the respondent and to bring the respondent before the probate judge instanter. When any respondent against whom a petition has been filed seeking to have limitations placed upon the respondent's liberty pending the outcome of a full and final hearing on the merits is initially brought before the probate judge, the probate judge shall determine from an interview with the respondent and with other available persons what limitations, if any, shall be imposed upon the respondent's liberty and what temporary treatment, if any, shall be imposed upon the respondent pending further hearings. If limitations on the respondent's liberty are ordered, the probate judge may order the respondent detained under the provisions of this section at a designated mental health facility or a hospital.

(b) No limitations shall be placed upon the respondent's liberty nor treatment imposed upon the respondent unless such limitations are necessary to prevent the respondent from doing substantial and immediate harm to himself or to others or to prevent the respondent from leaving the jurisdiction of the court. No respondent shall be placed in a jail or other facility for persons accused of or convicted of committing crimes.

(c) The probate judge shall order the respondent to appear at the times and places set for hearing the petition and may order the respondent to appear at designated times and places to be examined by licensed medical doctors or qualified mental health professionals. If the respondent does not appear as ordered by the probate judge, the probate judge may order the sheriff of the county in which the respondent is located to take the respondent into custody and compel the respondent's attendance as ordered by the probate judge. If temporary treatment or admittance to a hospital is ordered for the respondent, such treatment shall be supervised by a licensed medical doctor or qualified mental health professional who has willingly consented to treat the respondent, and admission to a hospital shall be ordered by a licensed medical doctor who has willingly consented to admit and treat the respondent.

In case any person sentenced to or imprisoned in the penitentiary or sentenced to or confined at hard labor for a county anywhere in the state becomes mentally ill, the physician in attendance on said person shall report the fact to the Governor, who shall appoint three suitable persons, one of whom is the said physician, who shall examine said prisoner and report the result of their examination to the Governor. If said prisoner is declared to be mentally ill and fit to be sent to a mental health facility of the state, the Governor shall direct the proper officer to apply to the superintendent of such facility for the admission of said prisoner into the facility. When notified by the superintendent that said prisoner can be received, and to which facility he shall be taken, the said officer shall send him, at the expense of the state, to said facility, along with a copy of the order of the Governor. The same compensation shall be allowed to sheriffs or guards for conveying mentally ill prisoners to and from mental health facilities as is allowed for carrying prisoners to the penitentiary.

No prisoner convicted of a crime in the state who has been declared mentally ill shall be sent to a mental health facility until the sheriff or other officer having legal custody of said prisoner shall have forwarded to the superintendent of such facility a written application and a description of the case, together with a certified copy of the order of the Governor under the authority of which the committal is made, and shall have received information in reply that the prisoner can be received and to which facility he shall be sent.

When any mentally ill prisoner is conveyed to a mental health facility, instructions shall be given to the superintendent thereof regarding to whom his recovery shall be reported. When any prisoner who is a patient in a mental health facility has recovered, the superintendent of such facility shall notify the proper officers of the fact, who shall immediately remove said patient.

(a) When any respondent sought to be committed has any limitation imposed upon his liberty or any temporary treatment imposed upon him by the probate judge pending final hearings on such petition, the probate judge, at the time such limitation or treatment is imposed, shall set a probable cause hearing within seven days of the date of such imposition. If, at such probable cause hearing, the probate judge finds that probable cause exists that the respondent should be detained temporarily and finds that temporary treatment would be in the best interest of the respondent, the probate judge shall enter an order so stating and setting the date, time and place of a final hearing on the merits of such petition.

(b) The final hearing shall be held within 30 days of the date that the respondent was served with a copy of the petition seeking to commit the respondent.

(c) If temporary treatment or admittance to a hospital is ordered for any respondent, such treatment shall be supervised by a licensed medical doctor or qualified mental health professional who has willingly consented to treat the respondent, and admission to a hospital shall be ordered by a licensed medical doctor who has willingly consented to admit and treat the respondent.

At all hearings, including probable cause hearings, conducted by the probate judge in relation to a petition to involuntarily commit a respondent, the following rules shall apply:

(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, and the probate judge has judicially found and determined from evidence presented in an adversary hearing that the respondent is so mentally or physically ill as to be incapable of attending such proceedings. Upon such findings an order shall be entered approving the waiver.

(2) The respondent shall have the right to compel the attendance of any witness who may be located anywhere in the State of Alabama and to offer evidence including the testimony of witnesses, to be confronted with the witnesses in support of the petition, to cross-examine them and to testify in his own behalf, but the respondent shall not be compelled to testify against himself. The attorney representing the respondent shall be vested with all of the rights of said respondent during all of the hearings if the respondent is not present in court to exercise his rights.

(3) The probate judge shall cause the hearing to be transcribed or recorded stenographically, mechanically or electronically and shall retain such transcription for a period of not less than three years from the date the petition is denied or granted and not less than the duration of any commitment pursuant to such hearing.

(4) All hearings shall be heard by the probate judge without a jury and shall be open to the public unless the respondent or his attorney requests in writing that the hearings be closed to the public.

(5) The rules of evidence applicable in other judicial proceedings in this state shall be followed in involuntary commitment proceedings.

As used in this article, the following words and phrases shall have the following meanings:

(1) DESIGNATED MENTAL HEALTH FACILITY. A mental health facility other than a state mental health facility designated by the state Department of Mental Health and Mental Retardation to receive persons for evaluation, examination, admission, detention, or treatment pursuant to the commitment process.

(2) COMMUNITY MENTAL HEALTH OFFICER. A person who acts as a liaison between law enforcement and the general public, and who is regularly employed by a municipality within the county or regularly employed by the county commission or any public body or agency, including the state Department of Mental Health and Mental Retardation. A community mental health officer may be employed jointly or in combination by two or more governments, entities, or agencies authorized by the immediately preceding sentence. Notwithstanding the foregoing, a community mental health officer shall not be an employee of the Department of Human Resources. A community mental health officer shall possess a minimum of a Bachelor's Degree from an accredited college or university in social work or a related field or, with the approval pursuant to findings of the judge of probate, any equivalent combination of education and experience; at least one year of experience in social work; knowledge of the principles, practices, and techniques of social work as they apply to crisis intervention; knowledge of theory, principles, and practices of psychiatric social work; knowledge of federal, state, and municipal laws regarding the aiding of mental patients; and knowledge of the functions and resources of public and private social agencies in the community. The compensation of the community mental health officer shall be determined by the employing entity, entities, or agency. The state Department of Mental Health and Mental Retardation may pay part or all of the compensation, including fringe benefits, of the community mental health officer employed hereunder.

(3) COUNTY. A county in the State of Alabama.

(4) LAW ENFORCEMENT OFFICER. A policeman regularly employed by a municipality within the county or a sheriff or deputy sheriff regularly employed by the county.

(5) WITHIN THE COUNTY. A place within the boundaries of the county.

(6) STATE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION FACILITY. A mental health facility operated by the state Department of Mental Health and Mental Retardation and designated by the commissioner to have beds available to receive persons for evaluation, examination, admission, detention, or treatment for the purposes of carrying out the provisions of this article.

(7) COMMISSIONER. Commissioner of the state Department of Mental Health and Mental Retardation.

(a) When a law enforcement officer is confronted by circumstances and has reasonable cause for believing that a person within the county is mentally ill and also believes that the person is likely to be of immediate danger to self or others, the law enforcement officer shall contact a community mental health officer. The community mental health officer shall join the law enforcement officer at the scene and location of the person to assess conditions and determine if the person needs the attention, specialized care, and services of a designated mental health facility. If the community mental health officer determines from the conditions, symptoms, and behavior that the person appears to be mentally ill and poses an immediate danger to self or others, the law enforcement officer shall take the person into custody and, together with the community mental health officer, deliver the person directly to the designated mental health facility. At the designated mental health facility, a responsible employee of the facility who is on duty and in charge of admissions to the facility shall be informed by the community mental health officer that the person in custody appears to be mentally ill and is in need of examination and observation.

(b) The employee of the designated mental health facility shall immediately notify an appropriate staff member of the facility who conducts diagnoses and evaluations that an alleged mentally ill person has been received at the facility. The staff member shall immediately perform an initial examination and observation which, coupled with whatever other information concerning the person's behavior as may be available, will allow the staff member to make a determination as to whether to admit the person to the designated mental health facility as a tentatively diagnosed mentally ill patient for further observation and attention. Notwithstanding anything in this article to the contrary, before any person is admitted to a licensed hospital pursuant to this article, the person shall be examined and evaluated by a psychiatrist or other physician licensed to practice medicine and authorized by the hospital medical staff bylaws of the licensed hospital to admit patients for the treatment of mental or emotional illnesses. All admissions to a licensed hospital authorized under this article shall be made only in conformity with established policies, procedures, and the medical staff bylaws of the licensed hospital to which the person is admitted. No provision of this article shall be construed to authorize or permit any person not licensed to practice medicine to perform any act or render any service which constitutes the practice of medicine.

(c) Upon a determination by the staff member that the person does not require admission to the designated mental health facility, the staff member shall so advise the community mental health officer. The community mental health officer shall promptly communicate this information to the law enforcement officer who shall cause the person to be released from the designated mental health facility. The law enforcement officer shall then release the person unless the law enforcement officer has some legal cause for detaining the person other than the person's mental condition. After the person is released, and, if so requested by the person, the law enforcement officer shall deliver the person to the person's residence or other place of abode if it is within the county.

(d) Upon a determination by the staff member that the alleged mentally ill person should be admitted to the designated mental health facility, the staff member shall proceed with admission of the person to the facility. The staff member shall also advise the community mental health officer who shall promptly communicate this information to the law enforcement officer. The community mental health officer shall effectuate the filing of a petition for commitment with the probate court on the person by parties in interest. If no one comes forward to timely file the petition, the community mental health officer shall file the petition in his or her official capacity no later than the second business day following the date of admission.

(e) No later than the next business day following the date of admission, the staff member shall notify the judge of probate, or the probate clerk of the county, of the admission to the designated mental health facility of the alleged mentally ill person. The judge of probate or the probate clerk shall arrange a probable cause hearing to determine if the detention of the alleged mentally ill person is based upon probable cause to believe that confinement is necessary under constitutionally proper standards for commitment or alternate modes of treatment and if the detention should continue until a final hearing on the merits can be held. In the case where a community mental health officer has acted in helping gain the admission of the alleged mentally ill person to a designated mental health facility for initial examination and observation, the judge of probate shall interview the alleged mentally ill person pursuant to this section no later than the fifth business day next after admission to the designated mental health facility or hospital.

(f) Prior to the probable cause hearing the probate court shall furnish adequate notice informing the person, or his or her counsel, of the time and place of the hearing and of the factual grounds upon which the proposed commitment is predicated and the reasons for the necessity of confinement. The probate court shall require that the alleged mentally ill person be represented by counsel at the hearing, which counsel shall be appointed by the court if necessary. The probate court shall require the presence of the alleged mentally ill person at the hearing unless his or her presence is waived by counsel and approved by the court after an adversary hearing at the conclusion of which the court judicially finds and determines that the person is so mentally or physically ill as to be incapable of attending the probable cause hearing. In no event may detention in the absence of a petition for commitment and a probable cause hearing exceed seven days from the date of the initial confinement under this article. If the court finds and determines that there is no probable cause to detain the person, the court shall immediately cause the person to be discharged and released from the designated mental health facility. Notwithstanding the foregoing, if criminal charges have been placed against the individual and the health care facility has been so notified by an appropriate law enforcement officer, the designated mental health facility shall release the person into the custody of the appropriate law enforcement officer.

(g) If the court determines there is probable cause to detain the person pending a full hearing on the need for commitment or some alternate mode of treatment, the court shall issue a mittimus or commitment of the person to the designated mental health facility until the proceedings may be held in accordance with law. Notwithstanding the foregoing, the proceedings shall be held within a reasonable time following initial detention, but in no event sooner than will permit adequate preparation of the case by counsel, or later than 30 days from the date of the initial detention.

(a) This article shall not be applicable to any county unless and until the judge of probate with the approval of the county commission of that particular county makes a finding that there exists in the county provisions for implementation of the community mental health officer program and the necessary facilities to detain persons pursuant to this article. In that event, the judge of probate shall open a case under a docket number and enter therein findings upon the records of the court which shall also expressly state the intention thereby to invoke this article. Notification and a copy of the court's findings and statement shall be served on all designated mental health facilities located within the county, all law enforcement agencies within the county, the Commissioner of the state Department of Mental Health and Mental Retardation, the state Attorney General, the Secretary of State, the Governor of the State of Alabama, and any other persons deemed appropriate by the judge of probate. In the event of changed circumstances, the judge of probate may terminate the procedures set forth in Section 22-52-91, and shall make findings accordingly and serve the parties named herein and others previously notified.

(b) Notwithstanding anything in this article to the contrary, in the event there are no facilities available in the county to serve as a designated mental health facility, the county commission, upon recommendation of the judge of probate, of that county may enter into an agreement with the state Department of Mental Health and Mental Retardation to use beds in a state Department of Mental Health and Mental Retardation facility in lieu of a designated mental health facility. The commissioner shall have the final decision to determine the number of beds, if any, in a state Department of Mental Health and Mental Retardation facility that may be made available to the counties under this section. This subsection may not be used by or be applicable to any county unless and until the judge of probate makes a finding that there are no facilities available in the county for implementation of the community mental health officer program, that there is an agreement between the probate court and the state Department of Mental Health and Mental Retardation to make beds in a state Department of Mental Health and Mental Retardation facility available, and that there is an alternative procedure other than jail or prison, adopted by the probate court that will be used when beds are not available in a state Department of Mental Health and Mental Retardation facility. If this subsection is used to implement the community mental health officer program, then the law enforcement officer shall deliver the person directly to the state Department of Mental Health and Mental Retardation, or as directed by the community mental health officer when a bed is not available in a state Department of Mental Health and Mental Retardation facility. Thereafter, all other procedures set forth in this article for operation of the community mental health officer program shall apply the same as if the person was delivered to a designated mental health facility.

(c) Notwithstanding any provision in this article to the contrary, a petition for commitment filed pursuant to Section 22-52-91 and subsequent proceedings held to determine probable cause and final hearings on the merits shall be in the probate court of the county where the respondent was initially taken into custody by law enforcement.

No county shall be required to pay costs associated with the temporary confinement or commitment of a person to a designated mental health facility, including, but not limited to, the cost of housing and treatment. All costs associated with a probable cause hearing, including cost of counsel, shall be paid by the State General Fund upon order of the judge of probate; except, that if the petition is denied and the petitioner is not indigent and is not a law enforcement officer or other public official acting within the line and scope of his or her duties, all costs may be taxed against the petitioner, or if the petition is granted and the person sought to be committed is not indigent, the judge of probate may order all costs paid from the estate of the person committed.