BOP Program Statement 6010.03 § 6

PSYCHIATRIC CARE OR TREATMENT

§ 549.45 Involuntary hospitalization in a suitable facility for psychiatric care or

treatment.

(a) Hospitalization of inmates pursuant to 18 U.S.C. Chapter 313. A court

determination is necessary for involuntary hospitalization or commitment of

inmates pursuant to 18 U.S.C. Chapter 313, who are in need of psychiatric care or

treatment, but are unwilling or unable to voluntarily consent.

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Inmates covered by this subsection include:

■ Individuals found to be suffering from a mental disease or defect that renders them mentally

incompetent to stand trial (18 U.S.C. § 4241(d)).

■ Individuals committed for evaluation under 18 U.S.C. § 4241(b) or § 4242(a).

■ Individuals found not guilty only by reason of insanity (18 U.S.C. § 4243).

■ Convicted individuals suffering from a mental disease or defect, committed to a suitable

facility for care or treatment in lieu of being sentenced to imprisonment (18 U.S.C. § 4244).

■ Persons serving a sentence of imprisonment suffering from a mental disease or defect

(18 U.S.C. § 4245).

■ Individuals due for release but suffering from a mental disease or defect (18 U.S.C. § 4246).

■ Sexually dangerous persons civilly committed to the custody of the Attorney General (18

U.S.C. § 4248).

Involuntary hospitalization of these inmates requires a court determination that the person may be

suffering from a mental disease or defect for the treatment of which he/she needs custody in a

suitable facility.

After hospitalization, psychiatric medication may only be involuntarily administered after an

administrative hearing has been held complying with the procedural safeguards in Section 7.

Any use of force under this provision must comply with procedures in the Program Statement Use

of Force and Application of Restraints.

(b) Hospitalization of inmates not subject to hospitalization pursuant to 18 U.S.C.

Chapter 313. Pursuant to 18 U.S.C. § 4042, the Bureau is authorized to provide for

the safekeeping, care, and subsistence, of all persons charged with offenses

against the United States, or held as witnesses or otherwise. Accordingly, if an

examiner determines pursuant to § 549.43 of this subpart that an inmate not

subject to hospitalization pursuant to 18 U.S.C. Chapter 313 should be

hospitalized for psychiatric care or treatment, and the inmate is unwilling or

unable to consent, the Bureau will provide the inmate with an administrative

hearing to determine whether hospitalization for psychiatric care or treatment is

warranted. The hearing will provide the following procedural safeguards:

A number of inmates in Bureau custody are not serving a sentence of imprisonment or otherwise

fall under the auspices of 18 U.S.C. Chapter 313, and therefore cannot be hospitalized pursuant to

an 18 U.S.C. § 4245 court order. Examples include alien detainees subject to an order of

deportation, exclusion, or removal; material witnesses; contempt of court commitments; or other

unsentenced inmates in Bureau custody. When unsure of the legal status of an inmate’s

confinement, contact legal staff for assistance before determining whether an inmate is subject to

hospitalization pursuant to 18 U.S.C. Chapter 313, requiring a court proceeding and order.

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When an inmate not subject to hospitalization per 18 U.S.C. Chapter 313 should be hospitalized

for psychiatric care or treatment and he/she is unwilling or unable to consent, staff must provide

him/her with an administrative hearing following the procedures below.

Any use of force under this provision must comply with the procedures in the Program Statement

Use of Force and Application of Restraints.

(1) The inmate will not be involuntarily administered psychiatric medication

before the hearing except in the case of psychiatric emergencies, as defined in §

549.46(b)(1).

(2) The inmate must be provided 24-hours advance written notice of the date,

time, place, and purpose, of the hearing, including an explanation of the reasons

for the proposal to hospitalize the inmate for psychiatric care or treatment.

Use form BP-A0959, “Notice of Hearing and Advisement of Rights for Involuntary

Hospitalization or Medication for Psychiatric Care or Treatment” to provide notice to the inmate.

This form is filled out only by the referring psychiatrist currently involved in the diagnosis or

treatment of the inmate. Any staff member may deliver a copy of the notice to the inmate.

(3) The inmate must be informed of the right to appear at the hearing, to present

evidence, to have a staff representative, to request witnesses, and to request that

witnesses be questioned by the staff representative or by the person conducting

the hearing. If the inmate does not request a staff representative, or requests a

staff representative with insufficient experience or education, or one who is not

reasonably available, the institution mental health division administrator must

appoint a qualified staff representative.

The BP-A0959 form used to provide notice to the inmate also advises the inmate of his/her rights

regarding evidence, witnesses, and staff representatives.

Inmates are entitled to appear at the hearing; however, at the discretion of the hearing psychiatrist,

the appearance requirement may be met by videoconference. Teleconference is not permissible,

as it does not allow the hearing psychiatrist to visually evaluate the inmate.

The assisting staff member’s responsibility is limited to helping the inmate obtain copies of

documents needed, for example, from his/her central file or other reasonably available source(s),

or a written statement(s) from reasonably available inmates or staff. The staff representative also

helps the inmate prepare and submit an appeal if he/she requests assistance, or wishes to appeal

but is unable to prepare and submit the appeal (see subsection b(9)).

(4) The hearing is to be conducted by a psychiatrist other than the attending

psychiatrist, and who is not currently involved in the diagnosis or treatment of the

inmate.

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The hearing may be conducted via videoconference by a psychiatrist who is not physically

located at the institution that currently houses the inmate. When the hearing is conducted via

videoconference, the hearing is considered to be held at the location of the inmate, not the

location of the hearing psychiatrist.

(5) Witnesses should be called if they are reasonably available and have

information relevant to the inmate’s mental condition or need for hospitalization.

Witnesses who will provide only repetitive information need not be called.

Witnesses are not required to appear at the hearing in person. If reasonably available, witnesses

may appear via video- or teleconference, or may submit a written statement.

(6) A treating/evaluating psychiatrist/clinician, who has reviewed the case, must

be present at the hearing and must present clinical data and background

information relative to the inmate’s need for hospitalization. Members of the

treating/evaluating team may also be called as witnesses at the hearing to provide

relevant information.

The treating/evaluating psychiatrist/clinician may present clinical data and background

information relative to the inmate’s need for hospitalization via video- or teleconference, or in

person.

(7) The psychiatrist conducting the hearing must determine whether involuntary

hospitalization is necessary because the inmate is presently suffering from a

mental disease or defect for the treatment of which he is in need of custody for

care or treatment in a suitable facility.

(8) The psychiatrist must prepare a written report regarding the initial decision.

The inmate must be promptly provided a copy of the initial decision report, and

informed that he/she may appeal it to the institution’s mental health division

administrator. The inmate’s appeal, which may be handwritten, must be submitted

within 24 hours after receipt of the hearing officer’s report. Upon request of the

inmate, the staff representative will assist the inmate in preparing and submitting

the appeal.

The psychiatrist conducting the hearing uses form BP-A0960, “Hearing Report: Involuntary

Hospitalization for Psychiatric Care or Treatment,” to prepare the written report regarding the

initial hospitalization decision.

The hearing psychiatrist must indicate the manner in which the hearing was held (in person or

videoconference) on the appropriate section of the hearing report form. At the end of the hearing

the hearing psychiatrist advises the inmate of his/her appeal rights and informs the inmate of the

specific evidence relied upon in making the determination, the findings, and their justification.

The inmate is also advised of the right to appeal the decision to the institution mental health

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administrator within 24 hours of receipt of the hearing report. Any staff member may deliver a

copy of the hearing report to the inmate.

(9) If the inmate appeals the initial decision, hospitalization must not occur before

the administrator issues a decision on the appeal. The inmate’s appeal will

ordinarily be reviewed by the administrator or his designee within 24 hours of its

submission. The administrator will review the initial decision and ensure that the

inmate received all necessary procedural protections, and that the justification for

hospitalization is appropriate.

The form used for appeals is BP-A0962, “Appeal of Involuntary Hospitalization or Medication

Decisions for Psychiatric Care or Treatment.” The staff representative who participated in the

involuntary hospitalization hearing assists the inmate in filing an appeal, if necessary.

(c) Psychiatric medication. Following an inmate’s involuntary hospitalization for

psychiatric care or treatment as provided in this section, psychiatric medication

may be involuntarily administered only after following the administrative

procedures provided in § 549.46 of this subpart.

Following the involuntary hospitalization of inmates for psychiatric care or treatment, whether

pursuant to (a) or (b) of this Section, the involuntary administration of psychiatric medication

must be preceded by an administrative hearing complying with procedures in Section 7. This

hearing is in addition to a court order as explained in subsection (a), or any hearing held pursuant

to the involuntary hospitalization of an inmate under subsection (b). Administrative hearings for

involuntary hospitalization and medication cannot be combined into a single hearing. If a

particular inmate needs both involuntary hospitalization and medication, two separate hearings

are conducted.

Any use of force under this provision must comply with the procedures in the Program Statement

Use of Force and Application of Restraints.