An Act To Increase the Availability of Mental Health Services
Maine Legislature, Session 126, LD 1515
Committee: Criminal Justice and Public Safety
Sponsors: MALABY
Amends: 34-A MRSA §1001, 34-A MRSA §3049, 34-A MRSA §3069-A, 34-A MRSA §3069-B, 34-A MRSA §3069-C, 34-B MRSA §1207

Legislative Document 
No. 1515 
H.P. 1087 
House of Representatives, May 7, 2013 
An Act To Increase the Availability of Mental Health Services 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed. 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative MALABY of Hancock.  (GOVERNOR'S BILL) 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  34-A MRSA §1001, sub-§11-B is enacted to read: 
11-B.  Likelihood of serious harm.  "Likelihood of serious harm" means: 
A.  A substantial risk of physical harm to oneself, as manifested by recent evidence of 
threats of or attempts at suicide or serious bodily harm to oneself; 
B.  A substantial risk of physical harm to other persons, as manifested by recent 
evidence of homicidal or other violent behavior or recent evidence that others are 
placed in reasonable fear of violent behavior and serious harm; or 
C.  A reasonable certainty that physical or mental impairment or injury will result to a 
person, as manifested by recent evidence of that person's actions or behavior that 
demonstrates an inability to avoid or protect oneself from such impairment or injury. 
Sec. 2.  34-A MRSA §1001, sub-§12-A is enacted to read: 
12-A.  Person with mental illness.  "Person with mental illness" means a person 
diagnosed as having a psychiatric or other illness that substantially impairs that person's 
mental health.  An intellectual disability as defined in Title 34-B, section 5001, 
subsection 3 or a personality disorder is not a psychiatric or other illness for purposes of 
this subsection. 
Sec. 3.  34-A MRSA §3049 is enacted to read: 
§3049.  Involuntary medication of person with mental illness 
1.  Grounds for involuntary medication.  A person with mental illness residing in a 
correctional or detention facility may be given medication for the mental illness without 
the consent of the person or the person's legal guardian, if any, if: 
A.  As a result of the mental illness, the person poses a likelihood of serious harm; 
B.  The medication has been prescribed by the facility's treating psychiatrist as 
treatment for the person's mental illness; 
C.  The person or the person's legal guardian, if any, has been asked to consent to the 
medication and has refused; and 
D.  A court order has been issued, upon the request of the chief administrative officer 
of the facility, permitting the involuntary medication. 
2.  Court hearing prior to medication.  Except as provided in this subsection, a 
person who is the subject of a request for an order permitting involuntary medication 
pursuant to this section must be provided, before being medicated, a hearing in a court of 
record at which the person has the following rights. 
A.  The person is entitled, at least 7 days before the hearing, to written notice of the 
hearing and a copy of the request for an order permitting involuntary medication.  
The notice must include the specific factual basis for the diagnosis of the mental 
illness and for the belief that the person poses a likelihood of serious harm and 
describe the treatment benefits of the medication proposed. 
B.  The person is entitled to be present at the hearing. 
C.  The person is entitled to be represented by counsel. 
D.  The person is entitled to present evidence, including by calling one or more 
witnesses. 
E.  The person is entitled to cross-examine any witness that testifies at the hearing. 
F.  The person is entitled to appeal any order by the court permitting involuntary 
medication. 
When an emergency exists, the court may enter an ex parte order permitting involuntary 
medication.  A request for the ex parte order must include all the information otherwise 
required by this subsection, as well as the specific factual basis for the emergency.  If the 
court enters an ex parte order permitting involuntary medication, a regular hearing, with 
all the rights otherwise provided under this subsection, must be held within 10 days. 
3.  Periodic review.  Involuntary medication of a person under this section may 
continue only with periodic reviews consisting of a 2nd hearing conforming with the 
requirements of subsection 2 to take place within 10 working days of the first hearing and 
of subsequent hearings conforming with the requirements of subsection 2 to take place at 
least once every 6 months. 
4.  Effect of medication by consent.  This section does not preclude giving 
medication for a mental illness when either the person to receive the medication or the 
person's legal guardian, if any, consents to the medication. 
Sec. 4.  34-A MRSA §3069-A is enacted to read: 
§3069-A.  Transfer of jail inmates for mental health services 
1.  Eligible inmates.  The commissioner may transfer from a jail to a correctional 
facility an adult inmate who the chief administrative officer of the Riverview Psychiatric 
Center confirms is eligible for admission to a state mental health institute under Title 
34-B, section 3863, but for whom no suitable bed is available, for the purpose of 
providing to the inmate mental health services in a mental health unit of the correctional 
facility.  The commissioner may return an inmate transferred pursuant to this subsection 
back to the sending facility. 
2.  Evaluation.  The commissioner may transfer from a jail to a correctional facility 
an adult inmate whom the court orders to be examined or further evaluated by the State 
Forensic Service under Title 15, section 101-D, subsection 1, 2, 3 or 9 if the State 
Forensic Service determines that the jail where the inmate is incarcerated cannot provide 
an appropriate setting for the examination but that a mental health unit in a correctional 
facility can provide an appropriate setting for the examination.  The commissioner shall 
return an inmate transferred pursuant to this subsection back to the sending facility upon 
the completion of the examination ordered, including any further evaluation ordered, 
unless the commissioner transferred the inmate for another reason in addition to the 
examination. 
3.  Disclosure of information.  With respect to an adult inmate who has previously 
been hospitalized under Title 34-B, chapter 3, subchapter 4, the commissioner may make 
it a prerequisite to a transfer of the inmate under this section that necessary information 
be disclosed to the department pursuant to Title 34-B, section 1207, subsection 1, 
paragraph B. 
4.  Application of other laws.  All other applicable provisions of law governing 
inmates, whether detained pending a trial or other court proceeding or sentenced, apply to 
inmates transferred under this section. 
5.  Discretion.  Nothing in this section or in any other provision of law requires the 
commissioner to transfer an adult inmate from a jail to a correctional facility or precludes 
the commissioner from transferring an adult inmate from a jail to a correctional facility at 
any time for any reason at the commissioner's discretion. 
Sec. 5.  34-A MRSA §3069-B is enacted to read: 
§3069-B.  Placement of defendants for observation 
1.  Acceptance of placement.  The commissioner may accept the placement of an 
adult defendant in a mental health unit of a correctional facility for observation whom a 
court commits to the custody of the Commissioner of Health and Human Services under 
Title 15, section 101-D, subsection 4 if, in addition to the findings required under Title 
15, section 101-D, subsection 4, the court, after hearing, finds that: 
A.  The defendant is a person with mental illness and, as a result of the defendant's 
mental illness, it is more probable than not that the defendant poses a likelihood of 
serious harm to others; 
B.  There is not sufficient security at a state mental health institute to address the 
likelihood of serious harm; and 
C.  There is no other less restrictive alternative to placement in a mental health unit of 
a correctional facility. 
2.  Termination of placement.  The commissioner may terminate the placement of a 
defendant accepted pursuant to this section if the commissioner determines that the 
likelihood of serious harm posed by the defendant has decreased or the security at a state 
mental health institute has increased or for any other reason. 
3.  Disclosure of information.  With respect to an adult defendant who has 
previously been hospitalized under Title 34-B, chapter 3, subchapter 4, the commissioner 
may make it a prerequisite to accepting placement of the defendant under this section that 
necessary information be disclosed to the department pursuant to Title 34-B, section 
1207, subsection 1, paragraph B. 
4.  Application of other laws.  All other applicable provisions of law governing 
defendants committed for observation apply to defendants accepted for placement under 
this section. 
5.  Discretion.  Nothing in this section or in any other provision of law requires the 
commissioner to accept the placement of a defendant who is committed for observation. 
Sec. 6.  34-A MRSA §3069-C is enacted to read: 
§3069-C.  Placement of defendants found incompetent to stand trial for mental 
health services 
1.  Acceptance of placement.  The commissioner may accept the placement of an 
adult defendant in a mental health unit of a correctional facility for hospital-level care and 
treatment who a court finds is incompetent to stand trial and whom the court commits to 
the custody of the Commissioner of Health and Human Services under Title 15, section 
101-D, subsection 5 if, in addition to the findings required under Title 15, section 101-D, 
subsection 5, the court, after hearing, finds that: 
A.  The defendant is a person with mental illness and, as a result of the defendant's 
mental illness, it is more probable than not that the defendant poses a likelihood of 
serious harm to others; 
B.  There is not sufficient security at a state mental health institute to address the 
likelihood of serious harm; and 
C.  There is no other less restrictive alternative to placement in a mental health unit of 
a correctional facility. 
2.  Termination of placement.  The commissioner may terminate the placement of a 
defendant accepted pursuant to this section if the commissioner determines that the 
likelihood of serious harm posed by the defendant has decreased or the security at a state 
mental health institute has increased or for any other reason. 
3.  Disclosure of information.  With respect to an adult defendant who has 
previously been hospitalized under Title 34-B, chapter 3, subchapter 4, the commissioner 
may make it a prerequisite to accepting placement of the defendant under this section that 
necessary information be disclosed to the department pursuant to Title 34-B, section 
1207, subsection 1, paragraph B. 
4.  Application of other laws.  All other applicable provisions of law governing 
defendants found incompetent to stand trial apply to defendants accepted for placement 
under this section. 
5.  Discretion.  Nothing in this section or in any other provision of law requires the 
commissioner to accept the placement of a defendant who is found incompetent to stand 
trial. 
Sec. 7.  34-B MRSA §1207, sub-§1, ¶B, as repealed and replaced by PL 2009, c. 
415, Pt. A, §20, is amended to read: 
B.  Information may be disclosed if necessary to carry out the statutory functions of 
the department; the hospitalization provisions of chapter 3, subchapter 4; the 
provisions of section 1931; the purposes of sections 3607-A and 3608; the purposes 
of Title 5, section 19506; the purposes of United States Public Law 99-319, dealing 
with the investigatory function of the independent agency designated with advocacy 
and investigatory functions under United States Public Law 88-164, Title I, Part C or 
United States Public Law 99-319; or the investigation and hearing pursuant to Title 
15, section 393, subsection 4-A; or the provision of mental health services by the 
Department of Corrections pursuant to Title 34-A, section 3031, 3069-A, 3069-B or 
3069-C; 
SUMMARY 
This bill authorizes the Commissioner of Corrections to: 
1.  Under certain circumstances, transfer an adult jail inmate to a correctional facility 
for the purpose of providing the inmate with mental health services; 
2.  Accept placement in a mental health unit of a correctional facility for observation 
of an adult defendant who has been committed to the custody of the Commissioner of 
Health and Human Services; and 
3.  Accept placement in a mental health unit of a correctional facility for hospital-
level care and treatment of an adult defendant who has been found incompetent to stand 
trial and committed to the custody of the Commissioner of Health and Human Services; 
4.  Under certain circumstances, medicate a person with mental illness residing in a 
correctional or detention facility without that person's consent, subject to the person's 
right to have a court hearing prior to being involuntarily medicated or 2 court hearing 
after the issuance of an ex parte court order in an emergency situation.