SIDEBAR Fall 2019 - 17


public defender

By Gregory L. Nester, Esq., Mental Health Chief
Montgomery County Public Defender's Office


n expert in the field told me a couple of years ago that
the Mental Health Procedures Act is a poorly written
statute for a mental health system that no longer exists.
Certainly, the approach to treating mental illness has changed
since the Act was written nearly fifty years ago and practitioners
continue to struggle with its meaning and application. In this
short article, I will highlight key provisions of the Act discussing
both civil and forensic commitments.
The Mental Health Procedures Act, 50 P.S. §7101, et
seq., governs the voluntary and involuntary commitment
of individuals who are in need of emergency mental health
treatment. Section 201 of the Act provides for voluntary
commitment while §302 of the Act begins the process
of involuntary civil commitments. For involuntary civil
commitments, the standard is whether the patient, as a result
of mental illness, lacks the "capacity to exercise self-control,
judgment and discretion in the conduct of his affairs and social
relations or care for his own personal needs is so lessened that he
poses a clear and present danger of harm to others or to himself."
A §302 commitment allows for up to 120 hours of treatment
but the time may be extended pursuant to sections §§303, 304,
and 305 of the Act. No court proceedings are held for §302
commitments but if the provider seeks to extend treatment, a
hearing must be held and the patient has the right to attend.
Forensic commitments start with an order pursuant to
§402(c) for a competency evaluation. This may be done for
individuals who are incarcerated or who are free on bail. A
person is incompetent if he or she is "substantially unable to
understand the nature or object of the proceedings against him

or to participate and assist in his defense." If the examining
doctor concludes that the person charged with a crime is
incompetent, counsel must request that the Court hold a hearing
on the record for an order finding the defendant incompetent.
The order should stay proceedings and, if appropriate, commit
the defendant to the Norristown State Hospital, or other
appropriate forensic center, for treatment aimed at competency
restoration. This treatment should be ordered under section
§304 of the Act. Be mindful that a client will not be transferred
to the Norristown State Hospital immediately; there is a wait list
but it is much shorter than it used to be. Approximately two
years ago, the Norristown State Hospital reports that the average
state-wide waiting time for admission was 444 days; presently,
the average wait is 23 days.
If, at a future date, doctors determine that competency is
restored, counsel should request a hearing so that a finding
of competence may be made on the record by the Court. At
that time, the case may proceed to trial or other form of
disposition. If, however, doctors determine that competency
cannot be restored, defense counsel should consider filing a
motion to dismiss charges in the interests of justice. Except for
first and second degree murder cases, no case may be stayed for
incompetence for a period in excess of the maximum sentence of
the crime charged or ten years, whichever is less.
If you have any questions about the Mental Health
Procedures Act, need assistance arranging for an evaluation,
forms of orders, or just general advice about these issues, feel free
to contact me or Cara McMenamin in the District Attorney's
Office. We are happy to help.

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