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County Attorney - Mental Health Board Petitions

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1. When is a Mental Health Board Petition filed?

The Lancaster County Attorney's Office will file a petition under the Nebraska Mental Health Commitment Act when a person is a mentally ill and dangerous person.

2. Who is a mentally ill and dangerous person?

According to Nebraska Rev. Statute § 71-908, a mentally ill and dangerous person means a person who is mentally ill or substance dependent and because of such mental illness or substance dependence presents:

• A substantial risk of serious harm to another person or persons within the near future as manifested by evidence of recent violent acts or threats of violence or by placing others in reasonable fear of such harm
• A substantial risk of serious harm to himself or herself within the near future as manifested by evidence of recent attempts at, or threats of, suicide or serious bodily harm or evidence of inability to provide for his or her basic human needs, including food, clothing, shelter, essential medical care, or personal safety.

3. What kind of evidence is needed by the County Attorney’s Office?

In order to file a commitment petition, there must be evidence of both mental illness and imminent dangerousness. The evidence of dangerousness must be specific and recent. For example, someone who is not taking his or her medication or someone who is delusional does not necessarily pose a risk of harm to himself or herself or others. There must be specific information about why a failure to take medication or why the delusion causes dangerousness.

4. My family member is voluntarily seeking help at the hospital for their mental health needs, but I still think a petition needs to be filed. Will you file one?

Typically, no. The mental health commitment act is for people who are refusing voluntary treatment. According to Nebraska Rev. Statute § 71-908, It is the public policy of the State of Nebraska that mentally ill and dangerous persons be encouraged to obtain voluntary treatment. If voluntary treatment is not obtained, such persons shall be subject to involuntary custody and treatment only after mental health proceedings as provided by the Nebraska Mental Health Commitment Act.

5. What if my family member tries to leave the hospital before I think they are ready to?

Bryan Hospital’s mental health professionals are familiar with the Mental Health Commitment Act and the affidavit procedure. If they have a subject who is no longer seeking voluntary help, who they believe fits the commitment criteria, they will forward our office an affidavit and request for filing. That request will be reviewed through the normal affidavit procedure.

6. What should I do if I want the County Attorney’s Office to consider filing a petition.

Please complete the linked affidavit and provide the information requested in the affidavit. Please be as specific as possible with the information that you provide, especially when giving dates. Determining whether there is sufficient evidence is difficult when dates are not provided.

Additionally, you need to provide specific instances where the person has shown themselves to be a risk of harm to themselves or others. Merely stating that a person is violent or that they are suicidal is not sufficient. You need to provide information as to what they said or did and provide information as to who witnessed the statements or actions. If your affidavit lacks specificity, it may be insufficient to support the filing of an affidavit. The affidavit must be notarized.

7. I have photographs or voicemails that will help prove the subject is dangerous. What should I do with them?

Please provide copies of those items with the affidavit for the Deputy County Attorney’s review.

8. Where can I get the document notarized?

If you have picture identification, someone at our reception desk will be able to notarize it for you.

9. What do I do with the affidavit after it is completed?

The affidavit can be mailed or dropped off at the County Attorney’s Office. We are located on the 4th Floor of 575 S 10th Street, Lincoln, Nebraska. The information contained in the affidavit will be reviewed by a Deputy County Attorney, who will decide whether sufficient evidence exists to file a petition. If there is enough potential evidence to file, you will be contacted and you will be required to appear at the commitment hearing to provide testimony.

10. Is this affidavit procedure intended to take the place of emergency protective custody?

No. This form is not intended to take the place of emergency protective custody. If the person is an immediate threat to himself/herself or others, call 911 immediately. The affidavit procedure takes time and is not intended to take the place of emergency protective custody.

11. How long does it take the Deputy County Attorney to review the affidavit and make a filing decision?

It depends. Generally, a decision can be made within 1 to 2 business days after the affidavit is received. However, sometimes a review takes longer because the DCA needs to contact doctors, caseworkers or witnesses. Additional time may be needed to investigate if the subject has had prior petitions filed or prior police contacts.

12. Will you call me to let me know if you’re going to file a petition?

No, unless you are a guardian or the subject’s attorney. Mental Health Board cases are confidential and no family members (including parents, spouses or children) or friends will be informed if a petition is filed or given information regarding the subject’s mental health diagnosis. If you are the subject’s guardian, please provide documentation with the affidavit.

13. But I’m the person who filled out the affidavit; doesn’t that give me a right to find out if something was filed?

No, the person who filed the affidavit is not entitled to a follow-up.

14. What happens if there is sufficient evidence to support a filing?

The prosecutor will prepare the paperwork and warrant to place the subject at the crisis center or other appropriate facility. Please indicate on the affidavit where the subject can be located.

15. What happens after the subject is served with the petition and warrant?

Once the subject is located and served with petition papers, they will be placed at the crisis center or other appropriate facility for an evaluation by a psychologist and psychiatrist.

16. What happens after the evaluations?

The doctors will make recommendations to the deputy county attorney as whether the county attorney should proceed with the petition or the petition should be dismissed.

17. What happens if the recommendation is to proceed with the petition?

If the recommendation is to proceed with the petition, that means the doctors are recommending mental health board ordered treatment and a commitment hearing will be held.

18. When will the commitment hearing be held?

The commitment hearing must be held within 7 days after the subject is admitted to the facility unless the subject asks for a continuance. Hearings are held every Tuesday and Thursday. Please be prepared to testify after you drop off an affidavit. Failure to appear might result in the dismissal of the Petition and the subject’s release.

19. What happens at the commitment hearing?

Witnesses must appear at the commitment hearing to give sworn testimony to the evidence of dangerousness to self or others as well as mental illness of which they have first-hand knowledge. The subject and his/her attorney will be present. If the witnesses fail to appear, it might result in the dismissal of the petition.

20. How will I know if I need to testify as a witness?

Staff from the County Attorney’s Office will contact you.

21. I don’t want my family member to be angry at me for testifying. Can I give a sworn statement or send a letter instead?

No. The only testimony permitted to be introduced at the hearing is first hand information. No hearsay evidence can be introduced. The law requires that the subject be allowed to confront and cross examine the witnesses against them. All witnesses must appear in person at the commitment hearing.

22. Who represents the subject at these hearings?

A Public Defender will be appointed to represent the subject if he/she is indigent.

23. What is the Mental Health Board’s role in these proceedings.

The Mental Health Board is made up of three people. The Board will listen to the evidence and decide if there is clear and convincing evidence that the subject is mentally ill and dangerous. The law then requires them to decide if the doctor’s recommendation is the least restrictive treatment alternative.

24. What happens if the Board decides the person is mentally ill and dangerous?

If after listening to the evidence, the Mental Health Board decides the person is mentally ill and dangerous, the Board will order the subject to comply with the treatment recommendation. Sometimes the subject will be ordered to receive treatment at the Lincoln Regional Center.

25. Can I find out the board’s decision?

No. The board’s decision is confidential and our office cannot release that information to you unless you are the subject’s guardian.

26. Can I attend the commitment hearing?

No, not unless you are a witness. Commitment hearings are confidential and are not open to the public. If you are a witness, you will only be in the hearing room during your own testimony.

27. What if the Board finds the evidence insufficient?

The petition is then dismissed by the Board and the subject must be released from custody.

28. It’s the weekend and I think my family member is mentally ill and dangerous, what should I do?

If it is an emergency, call 911. If it is not an emergency, you can drop off an affidavit on Monday.

29. I called the police and they did not find my family member met the criteria for EPC. They said to send the County Attorney’s Office an affidavit. Will you file a petition?

Sometimes. Law enforcement has the same legal criteria as the County Attorney’s Office, so very often if the police did not find sufficient evidence to Emergency Protective Custody (EPC), the County Attorney’s Office will come to that same decision. However, sometimes people are able to provide new or additional information in the affidavit which was not given to the police at the time they were called.