ATTORNEY GENERAL HENRY HAS REQUESTED THAT I RESPOND TO YOUR REQUEST FOR AN OPINION CONCERNING THE RESPONSIBILITY FOR TRANSPORTATION OF THE MENTALLY ILL. SPECIFICALLY, YOUR QUESTION WAS:
WHOSE RESPONSIBILITY IS IT TO TRANSPORT A MENTALLY ILL PERSON, AN ALCOHOL DEPENDENT PERSON OR DRUG DEPENDENT PERSON AFTER RELEASE FROM DETENTION FROM THE NEAREST FACILITY DESIGNATED BY THE COMMISSIONER . . . AS AN APPROPRIATE FACILITY FOR DETENTION (AS DEFINED BY 43A O.S. 5-207(D) (1990) BEFORE OR AFTER THE FILING OF A PETITION AS SET FORTH IN 43A O.S. 5401(B)?
BECAUSE YOUR REQUEST INVOLVES THE POSSIBILITY OF A VARIETY OF FACTUAL SCENARIOS, THIS RESPONSE WILL BE IN THE FORM OF AN INFORMAL DISCUSSION. SHOULD YOU HAVE ADDITIONAL QUESTIONS NOT DISCUSSED IN THIS CORRESPONDENCE, PLEASE DO NOT HESITATE TO CONTACT OUR OFFICE FOR FURTHER CLARIFICATION. THE FOLLOWING DISCUSSION WILL HIGHLIGHT THE CRITICAL POINTS BROUGHT OUT BY YOUR QUESTION AND HOPEFULLY OFFER SOME GUIDANCE IN THIS AREA.
THE STATUTORY SCHEME
TITLE 43A O.S. 5-206 (1990) PROVIDES SOME USEFUL DEFINITIONS WHICH WILL AID IN THE DISCUSSION OF YOUR QUESTION. SPECIFICALLY, THE DEFINITIONS FOR "PROTECTIVE CUSTODY" AND "EMERGENCY EXAMINATION" PROVIDE A FOUNDATION FOR DETERMINING THE VARIOUS INSTANCES IN WHICH A MENTALLY ILL, OR ALCOHOL OR DRUG DEPENDENT PERSON MAY NEED TRANSPORTATION.
"EMERGENCY EXAMINATION" IS DEFINED AS THE EXAMINATION OF SOMEONE WHO APPEARS TO MEET THE DEFINITION OF 43A O.S. 5-206(2). AN EMERGENCY EXAMINATION IS CONDUCTED IN ORDER TO DETERMINE IF EMERGENCY DETENTION IS WARRANTED. 5-206(3). "EMERGENCY DETENTION" IS DEFINED AS THE DETENTION IN A FACILITY APPROVED BY THE COMMISSIONER AFTER COMPLETION OF AN EMERGENCY EXAMINATION AND A DETERMINATION THAT EMERGENCY DETENTION IS WARRANTED PENDING ISSUANCE OF AN ORDER AUTHORIZING DETENTION BEYOND 72 HOURS OR PENDING A HEARING ON A PETITION REQUESTING INVOLUNTARY COMMITMENT OR TREATMENT. 43A O.S. 5-206(4). EMERGENCY DETENTION MAY ONLY BE FOR A MAXIMUM OF 72 HOURS WITHOUT COURT INTERVENTION.
"PROTECTIVE CUSTODY" IS THE TAKING INTO PROTECTIVE CUSTODY AND DETENTION OF A PERSON PURSUANT TO THE PROVISIONS OF 43A O.S. 5-208 UNTIL SUCH TIME AS AN EMERGENCY EXAMINATION IS COMPLETED AND A DETERMINATION IS MADE AS TO WHETHER OR NOT EMERGENCY DETENTION IS WARRANTED. 43A O.S. 5-206(5). ANYONE WHO APPEARS TO BE OR STATES THAT HE IS IN NEED OF EMERGENCY ACTION MAY BE TAKEN INTO PROTECTIVE CUSTODY AND DETAINED. 43A O.S. 5-207(A). ANY PEACE OFFICER, (A TERM WHICH IS UNDEFINED IN TITLE 43A, WHO BELIEVES A PERSON REQUIRES TREATMENT SHALL TAKE THE PERSON INTO PROTECTIVE CUSTODY. 43A O.S. 5207(B). A PEACE OFFICER'S AFFIDAVIT, BASED ON HIS OWN OBSERVATION OR THE OBSERVATION OF OTHERS, SERVES AS THE BASIS FOR HIS TAKING AN INDIVIDUAL INTO PROTECTIVE CUSTODY. 43A O.S. 5-207(C).
UPON TAKING AN INDIVIDUAL INTO PROTECTIVE CUSTODY, THE OFFICER IS REQUIRED TO IMMEDIATELY TRANSPORT THE PERSON TO THE NEAREST FACILITY DESIGNATED BY THE COMMISSIONER AS AN APPROPRIATE FACILITY FOR EMERGENCY EXAMINATIONS. 5-207(D). IF, SUBSEQUENT TO AN EMERGENCY EXAMINATION, IT IS DETERMINED THAT EMERGENCY DETENTION IS WARRANTED, THE OFFICER IS REQUIRED TO THEN TRANSPORT THE PERSON TO THE NEAREST FACILITY DESIGNATED BY THE COMMISSION AS APPROPRIATE