§ 402. Commitment of incarcerated individuals with a mental illness. 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 has, in his or her opinion, a mental illness, 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 incarcerated individual has a mental illness and in need of care and treatment, shall make a certificate to such effect. Before making such certificate, however, he or she 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 incarcerated individual's needs without requiring hospitalization. If the examining physician knows that the person he or she is examining has been under prior treatment, he or she shall, insofar as possible, consult with the physician or psychologist furnishing such prior treatment prior to making his or her certificate.

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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, in his or her opinion has a mental illness, the superintendent of said institution shall either transfer said prisoner to Bellevue or Kings county hospital for observation as to his or her 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 has a mental illness and in need of care and treatment, shall make a certificate to such effect. Before making such certificate, however, he or she 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 incarcerated individual's needs without requiring hospitalization. If the examining physician knows that the person he or she is examining has been under prior treatment, he or she shall, insofar as possible, consult with the physician or psychologist furnishing such prior treatment prior to making his or her 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 or her petition, for an order committing such incarcerated individual to a hospital for persons with a mental illness. 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 person with a mental illness, 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 person with a mental illness, 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 person with a mental illness 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 person with a mental illness 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 person with a mental illness 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 incarcerated individual and, in proper cases, others interested in the incarcerated individual's welfare, of the procedures for placement in a hospital and of the incarcerated individual'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 incarcerated individual for such purposes.

4. The judge to whom such application for the commitment of the alleged person with a mental illness is made may, if no demand is made for a hearing on behalf of the alleged person with a mental illness, proceed forthwith on the return day of such notice to determine the question of mental illness and, if satisfied that the alleged person with a mental illness has a mental illness and in need of care and treatment, may immediately issue an order for the commitment of such alleged person with a mental illness 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 person with a mental illness, 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 person with a mental illness, 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 has a mental illness 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 person with a mental illness to be delivered to the director of the appropriate hospital as designated by the commissioner of mental hygiene and such person with a mental illness 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 person with a mental illness, 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 person with a mental illness 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 person with a mental illness 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 person with a mental illness to a hospital for persons with a mental illness 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 of this section pertaining to prisoners confined in the city of New York, an incarcerated individual 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 incarcerated individual is confined, that the incarcerated individual suffers from a mental illness which is likely to result in serious harm to himself, herself or others as defined in subdivision (a) of § 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 persons with a mental illness shall deem that the condition of such person with a mental illness 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 person with a mental illness. 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 person with a mental illness 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 person with a mental illness 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 does not have a mental illness, 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 has a mental illness, 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 person with a mental illness 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 persons with a mental illness, or their designees, shall be authorized to personally serve notice upon an alleged person with a mental illness or a person with a mental illness, as provided in this section.

13. Notwithstanding any provision of law to the contrary, when an incarcerated individual 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 § 404 of the mental hygiene law, as appropriate.