Section 402. Commitment of mentally ill inmates

1. Whenever the physician
  of any correctional facility, any county penitentiary,  county  jail  or
  workhouse,  any  reformatory  for  women,  or  of any other correctional
  institution, shall report in writing  to  the  superintendent  that  any
  person  undergoing  a  sentence  of  imprisonment or adjudicated to be a
  youthful offender or juvenile delinquent confined  therein  is,  in  his
  opinion, mentally ill, such superintendent shall apply to a judge of the
  county  court  or justice of the supreme court in the county to cause an
  examination to be made of such person by two examining physicians.  Such
  physicians  shall  be designated by the judge to whom the application is
  made. Each such physician, if satisfied, after a  personal  examination,
  that  such  inmate  is  mentally  ill and in need of care and treatment,
  shall make a certificate to such effect. Before making such certificate,
  however, he shall consider  alternative  forms  of  care  and  treatment
  available    during   confinement   in   such   correctional   facility,
  penitentiary, jail, reformatory or correctional institution  that  might
  be  adequate  to  provide  for  such  inmate's  needs  without requiring
  hospitalization. If the examining physician knows that the person he  is
  examining has been under prior treatment, he shall, insofar as possible,
  consult  with  the  physician  or  psychologist  furnishing  such  prior
  treatment prior to making his certificate.
    2. In the city of New York, if the  physician  of  a  workhouse,  city
  prison,  jail,  penitentiary  or  reformatory  reports in writing to the
  superintendent of such institution that  a  prisoner  confined  therein,
  serving  a sentence of imprisonment, is in his opinion mentally ill, the
  superintendent of said institution shall either transfer  said  prisoner
  to  Bellevue  or  Kings county hospital for observation as to his mental
  condition by two examining physicians  or  shall  secure  two  examining
  physicians  to  make  such  examination  in  his  institution. Each such
  physician, if satisfied after a  personal  examination  and  observation
  that  the  prisoner  is  mentally ill and in need of care and treatment,
  shall make a certificate to such effect. Before making such certificate,
  however, he shall consider  alternative  forms  of  care  and  treatment
  available    during   confinement   in   such   correctional   facility,
  penitentiary, jail, reformatory or correctional institution  that  might
  be  adequate  to  provide  for  such  inmate's  needs  without requiring
  hospitalization. If the examining physician knows that the person he  is
  examining has been under prior treatment, he shall, insofar as possible,
  consult  with  the  physician  or  psychologist  furnishing  such  prior
  treatment prior to making his certificate.
    3. Upon such certificates of the examining physicians being  so  made,
  it shall be delivered to the superintendent who shall thereupon apply by
  petition  forthwith  to  a  judge  of the county court or justice of the
  supreme court in the county, annexing such certificate to his  petition,
  for  an order committing such inmate to a hospital for the mentally ill.
  Upon every such application for such  an  order  of  commitment,  notice
  thereof  in  writing, of at least five days, together with a copy of the
  petition, shall be served  personally  upon  the  alleged  mentally  ill
  person,  and  in addition thereto such notice and a copy of the petition
  shall be served upon either the wife, the husband, the father or  mother
  or  other nearest relative of such alleged mentally ill person, if there
  be any such known relative within the state; and  if  not,  such  notice
  shall  be  served  upon  any  known  friend of such alleged mentally ill
  person within the state. If there be no such known  relative  or  friend
  within the state, the giving of such notice shall be dispensed with, but
  in  such  case  the petition for the commitment shall recite the reasons
  why service of such notice on  a  relative  or  friend  of  the  alleged
  mentally  ill person was dispensed with and, in such case, the order for

  commitment shall recite why service of such a notice on  a  relative  or
  friend  of the alleged mentally ill person was dispensed with. Copies of
  the  notice,  the  petition  and  the  certificates  of  the   examining
  physicians  shall  also  be  given the mental hygiene legal service. The
  mental hygiene legal service shall inform  the  inmate  and,  in  proper
  cases,  others interested in the inmate's welfare, of the procedures for
  placement in a hospital and of the inmate's right to have a hearing,  to
  have  judicial review with a right to a jury trial, to be represented by
  counsel and to seek an independent medical opinion. The  mental  hygiene
  legal  service  shall  have  personal  access  to  such  inmate for such
  purposes.
    4. The judge to whom  such  application  for  the  commitment  of  the
  alleged  mentally  ill  person  is  made may, if no demand is made for a
  hearing on behalf of the alleged mentally ill person, proceed  forthwith
  on  the  return  day  of such notice to determine the question of mental
  illness and, if satisfied  that  the  alleged  mentally  ill  person  is
  mentally ill and in need of care and treatment, may immediately issue an
  order  for  the  commitment  of  such  alleged  mentally ill person to a
  hospital for a period not to exceed six months  from  the  date  of  the
  order.
    5.  Upon  the  demand  for a hearing by any relative or near friend on
  behalf of such alleged mentally ill person, the judge shall, or  he  may
  upon  his  own  motion  where there is no demand for a hearing, issue an
  order directing the hearing of such application before him at a time not
  more than five days from the date of such order, which shall  be  served
  upon  the  parties  interested  in  the  application and upon such other
  persons as the judge, in his discretion, may name. Upon such day or upon
  such other day to which the proceedings shall be regularly adjourned, he
  shall hear the testimony introduced by the parties and shall examine the
  alleged mentally ill person, if deemed advisable in or out of court, and
  render a decision in writing as to such person's mental illness and need
  for care and treatment. If such judge cannot hear  the  application,  he
  may,  in  his  order  directing the hearing, name some referee who shall
  hear the testimony and report  the  same  forthwith,  with  his  opinion
  thereon, to such judge, who shall, if satisfied with such report, render
  his  decision  accordingly.  If  it  be  determined  that such person is
  mentally ill and  in  need  of  care  and  treatment,  the  judge  shall
  forthwith  issue his order committing him to a hospital for a period not
  to exceed six months from the date of  the  order.  Such  superintendent
  shall  thereupon  cause  such mentally ill person to be delivered to the
  director of the appropriate hospital as designated by  the  commissioner
  of  mental  hygiene  and such mentally ill person shall be received into
  such hospital and retained there until he is determined to be no  longer
  in  need  of  care  and  treatment  by  the director of such hospital or
  legally  discharged  or  for  the  period  specified  in  the  order  of
  commitment or in any subsequent order authorizing continued retention of
  such  person  in  said  hospital. Such superintendent, before delivering
  said mentally ill person, shall see that he is  bodily  clean.  If  such
  judge  shall refuse to issue an order of commitment, he shall certify in
  writing his reasons for such refusal.
    6. When an order of commitment is made, such order and all  papers  in
  the  proceeding  shall  be  presented to the director of the appropriate
  hospital at the time when the mentally ill person is delivered  to  such
  institution  and  a  copy  of  the order and of each such paper shall be
  filed with the department of mental hygiene and also in  the  office  of
  the  county  clerk of the county wherein the court is located which made
  the order of commitment. The judge shall order all such papers so  filed
  in  the county clerk's office to be sealed and exhibited only to parties

  to the proceedings, or someone properly interested, upon  order  of  the
  court.
    7.  The  costs  necessarily  incurred  in  determining the question of
  mental illness, including the fees of the medical examiners, shall be  a
  charge  upon the state or the municipality, as the case may be, at whose
  expense the institution is maintained, which has custody of the  alleged
  mentally ill person at the time of the application for his commitment to
  the hospital under the provisions of this section.
    8.  During  the  pendency  of  such proceeding the judge may forthwith
  commit such alleged mentally ill person to a hospital for  the  mentally
  ill upon petition and the affidavit of two examining physicians that the
  superintendent  is  not  able  to  properly  care for such person at the
  institution where he is confined and that such person  is  in  immediate
  need  of  care and treatment. Any person so committed shall be delivered
  to the director of the appropriate hospital as designated in  the  rules
  and regulations of the department of mental hygiene.
    9.  Except  as  provided  in  subdivision  two pertaining to prisoners
  confined in the city of New York, an inmate of a  correctional  facility
  or  a  county  jail may be admitted on an emergency basis to the Central
  New York Psychiatric Center upon  the  certification  by  two  examining
  physicians, including physicians employed by the office of mental health
  and  associated  with  the correctional facility in which such inmate is
  confined, that the inmate suffers from a mental illness which is  likely
  to result in serious harm to himself or others as defined in subdivision
  (a)  of  section 9.39 of the mental hygiene law. Any person so committed
  shall be delivered by  the  superintendent  within  a  twenty-four  hour
  period, to the director of the appropriate hospital as designated in the
  rules  and  regulations of the office of mental health. Upon delivery of
  such person to a hospital operated by the office  of  mental  health,  a
  proceeding under this section shall immediately be commenced.
    10. If the director of a hospital for the mentally ill shall deem that
  the condition of such mentally ill person requires his further retention
  in a hospital he shall, during the period of retention authorized by the
  last  order  of the court, apply to the supreme court or county court in
  the county where such hospital is  located,  for  an  order  authorizing
  continued  retention  of  such  mentally  ill person. The procedures for
  obtaining any order pursuant to this subdivision shall be in  accordance
  with  the  provisions  of  the  mental  hygiene law for the retention of
  involuntary patients.
    11. If a mentally ill person whose commitment, retention or  continued
  retention  has been authorized pursuant to this section, or any relative
  or friend in his behalf, be dissatisfied with any such  order,  he  may,
  within  thirty  days  after  the  making  of  any  such  order, obtain a
  rehearing and a review of the proceedings already had and of such order,
  upon a petition to a justice of the supreme court other than  the  judge
  or  justice  presiding  over  the  court making such order. Such justice
  shall cause a jury to be summoned and shall  try  the  question  of  the
  mental  illness  and  the  need  for care and treatment of the person so
  committed or so authorized to be retained. Any such mentally ill  person
  or the person applying on his behalf for such review may waive the trial
  of  the  fact  by a jury and consent in writing to trial of such fact by
  the court. No such petition for the hearing and review shall be made  by
  anyone  other  than the person so committed or authorized to be retained
  or the father, mother, husband, wife or child of such person, unless the
  petitioner shall have first obtained the leave of the  court  upon  good
  cause  shown.  If  the verdict of the jury, or the decision of the court
  when jury trial has been waived, be that such  person  is  not  mentally
  ill,  the  justice  shall  order  the  removal  of  such person from the

  hospital and such person shall  forthwith  be  transferred  to  a  state
  correctional   facility,  or  returned  to  the  superintendent  of  the
  institution from which he was received if such  institution  was  not  a
  state  correctional  facility.  Where  the  verdict  of the jury, or the
  decision of the court where a jury trial has been waived, be  that  such
  person  is mentally ill, the justice shall certify that fact and make an
  order  authorizing  continued  retention  under  the   original   order.
  Proceedings  under  the  order  shall  not  be  stayed pending an appeal
  therefrom, except upon an order of a justice of the supreme  court,  and
  made upon notice and after hearing, with provision made therein for such
  temporary care and confinement of the alleged mentally ill person as may
  be deemed necessary.
    12.  The  notice provided for herein shall be served by the sheriff of
  the counties of the state of New York, in which case the charges of such
  sheriff shall be a disbursement in such  proceeding,  or  by  registered
  mail   on   all   persons   required  to  be  served,  except  that  the
  superintendent of a correctional facility or the director of a  hospital
  for  the  mentally  ill,  or  their  designees,  shall  be authorized to
  personally serve notice  upon  an  alleged  mentally  ill  person  or  a
  mentally ill person, as provided in this section.
    13.  Notwithstanding  any  provision  of  law to the contrary, when an
  inmate is being examined in  anticipation  of  his  or  her  conditional
  release, release to parole supervision, or when his or her sentence to a
  term  of  imprisonment  expires,  the  provisions  of subdivision one of
  section four hundred four of this article shall be applicable  and  such
  commitment  shall  be  effectuated  in accordance with the provisions of
  article nine or ten of the mental hygiene law, as appropriate.