If a sheriff's deputy takes someone to the hospital for an involuntary mental health evaluation in Tennessee, must the deputy use force to restrain the patient when hospital staff asks, and would doing so violate the patient's civil rights?

Subject

Opinion No. 10-123, Use of Restraint During Evaluation of Mentally Ill Patient

Plain-English summary

A state representative asked two related questions about Tennessee's involuntary inpatient commitment process. When a sheriff's deputy or other designated transportation agent brings a person to the hospital for the emergency evaluation required by Tenn. Code Ann. § 33-6-407 (the inpatient-admission screening) and hospital staff asks the deputy to use police powers to restrain the patient so that the staff can complete the evaluation, two questions arise:

First, is the deputy required to do that? The AG concluded no. The statutes in Title 33, Chapter 6, Part 4 spell out the deputy's transport-and-wait duties: in most counties, the deputy or transportation agent must notify the hospital of arrival timing in advance and, having given that notice and arrived on time, must remain at the hospital long enough for the evaluation but no longer than one hour and forty-five minutes. The reason the deputy waits is so that, if the person does not meet the criteria for involuntary admission, the deputy can transport the person back to the county. Nothing in the statutes requires the deputy to use police powers to physically restrain the patient so that hospital staff can complete the evaluation.

Second, if the deputy does step in and restrain the patient at hospital staff's request, does that violate civil rights? The AG concluded no, as long as the restraint is reasonable and in good faith. Sheriff's deputies have long had common-law authority to use force or restraint as reasonably necessary to take a mentally ill person into custody. The constitutional ceiling is the Fourth Amendment: the Sixth Circuit's Monday v. Oulette held that the Fourth Amendment applies in the civil setting to seizures for psychiatric evaluation or involuntary confinement, and Graham v. Connor prohibits excessive force during the seizure of a free citizen. The probable-cause standard for a psychiatric seizure is that the person is dangerous to himself or others; the force used must be reasonable in light of the circumstances. A footnote referenced AG Opinion 07-92, which had previously concluded that hospital personnel themselves may use reasonable force if necessary to complete the evaluation.

The opinion thus drew a careful line. Tennessee's statutes do not require deputies to act as a hospital's auxiliary restraint team, but if a deputy chooses to assist because the patient is dangerous, the Fourth Amendment governs and reasonable, good-faith force does not violate civil rights.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could hospital staff demand that a deputy use force on the patient?

The AG said no, not as a matter of Tennessee statute. The deputy's duty under § 33-6-406 was to give the hospital advance notice of the transport, then arrive within the estimated time and wait up to one hour and forty-five minutes for the evaluation. That waiting duty is keyed to return-transport, not to physical assistance with the evaluation itself. Hospital staff could ask, but the deputy was not statutorily obligated to comply.

Why did the AG read the wait requirement as a return-transport rule?

Because of the structure of the statutes read together. Tenn. Code Ann. § 33-6-407(c) provided that if the person did not meet admission criteria and the deputy was under a duty to remain under § 33-6-406, the deputy had the responsibility to return the person to the county. Tenn. Code Ann. § 33-6-407(d) provided the converse: if the deputy was not under a duty to remain, the hospital had the responsibility to return the person. The AG read the wait requirement as designed to keep a transport-capable officer available, not as a hidden restraint mandate.

What was the rule for sheriff department employees in larger counties?

Under § 33-6-406(b) the advance-notice and arrival-window rules applied "[e]xcept in counties having a population of six hundred thousand (600,000) or more according to the 1970 federal census or any subsequent federal census." The 600,000-population exception removed the formal advance-notice requirement in the largest counties, but the substantive answer to the questions (no statutory duty to restrain; reasonable force in good faith not a civil rights violation) was the same.

If the deputy did decide to help with restraint, what's the legal standard for the force used?

The Fourth Amendment standard from Graham v. Connor: the force must be objectively reasonable in light of the specific circumstances. Monday v. Oulette confirmed that the Fourth Amendment applies to seizures for psychiatric evaluations. The probable cause needed is reason to believe the person is a danger to himself or others. If those preconditions are met and the force is proportionate, the seizure is constitutional.

Where did the common-law authority to restrain a mentally ill person come from?

The AG cited Op. Tenn. Att'y Gen. 82-266 (May 24, 1982), which recognized that a sheriff's department employee has authority under common law to use force or restraint as reasonably necessary to take a mentally ill person into custody. The 1982 opinion long predated the modern Title 33, Chapter 6 framework, but its common-law principle remained valid background authority.

What were hospital staff allowed to do themselves?

The opinion's footnote referred to Op. Tenn. Att'y Gen. 07-92 (June 11, 2007), which concluded that hospital personnel themselves may use reasonable force if necessary to complete the § 33-6-407 evaluation. So hospital staff were not without options: they had their own reasonable-force authority for evaluation purposes, independent of whether the sheriff's deputy joined in.

Background and statutory framework

The involuntary inpatient commitment process in Tennessee runs through Title 33, Chapter 6, Part 4. Once a person believed to have a mental illness is certified as needing emergency diagnosis, evaluation, and treatment, and is not already at a treatment facility, the sheriff or appropriately designated transportation agent transports the person to a hospital or treatment resource with available suitable accommodation. Tenn. Code Ann. § 33-6-406.

At the hospital, a licensed physician must examine the person to determine whether the person meets all the requirements in § 33-6-403 for involuntary inpatient treatment. Tenn. Code Ann. § 33-6-407. The procedural backbone is:

• Advance notice and wait window (§ 33-6-406(b)): except in counties of 600,000 or more (1970 or subsequent census), the deputy or transportation agent must notify the hospital of the person's location and the best estimate of anticipated time of arrival. If the deputy gives that notice and arrives within the estimated window, the deputy must remain at the hospital long enough for the evaluation but need not remain longer than one hour and forty-five minutes.
• Return-transport responsibility (§§ 33-6-407(c) and (d)): if the person is found not to meet the admission requirements and the deputy is under a duty to remain under § 33-6-406, the deputy returns the person to the county. If the deputy is not under a duty to remain, the hospital handles return transport.

The AG applied standard Tennessee rules of statutory construction: courts must "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope" (Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994)); when the statute is unambiguous, intent comes from the plain language (Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000)); statutory language is read in context (National Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991)); related statutes are read in pari materia (In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)); no part should be inoperative, superfluous, void or insignificant (State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978)); and a statute should not produce an absurd or incongruous result (Barnett v. Barnett, 27 S.W.3d 904, 908 (Tenn. 2000)).

On the civil rights question, the AG worked through the standard Fourth Amendment use-of-force framework:

• Sheriff's department employees have authority under common law to use force or restraint as reasonably necessary to take a mentally ill person into custody. Op. Tenn. Att'y Gen. 82-266 (May 24, 1982).
• The Sixth Circuit held in Monday v. Oulette, 118 F.3d 1099, 1102 (6th Cir. 1997), that the Fourth Amendment applies to civil seizures of individuals for psychiatric evaluations or involuntary confinement.
• The Fourth Amendment prohibits excessive force during the seizure of a free citizen. Graham v. Connor, 490 U.S. 386, 394 (1989).
• A psychiatric seizure requires probable cause to believe the person is dangerous to self or others, and the officer must employ a reasonable amount of force. Monday, 118 F.3d at 1102.

Putting these pieces together, the AG concluded that reasonable, proportionate force used in good faith based on the circumstances does not violate the patient's civil rights, even though the deputy was not statutorily required to act.

Citations

• Tenn. Code Ann. § 33-6-403 (involuntary inpatient admission requirements)
• Tenn. Code Ann. § 33-6-406 (transport to hospital or treatment resource)
• Tenn. Code Ann. § 33-6-406(b) (advance notice, arrival window, and wait duty)
• Tenn. Code Ann. § 33-6-407 (physician evaluation)
• Tenn. Code Ann. § 33-6-407(c) (return transport when deputy must remain)
• Tenn. Code Ann. § 33-6-407(d) (return transport by hospital when deputy not under duty to remain)
• Op. Tenn. Att'y Gen. 82-266 (May 24, 1982) (common-law authority to restrain mentally ill person)
• Op. Tenn. Att'y Gen. 07-92 (June 11, 2007) (hospital personnel reasonable-force authority)
• Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994)
• National Gas Distribs. v. State, 804 S.W.2d 66 (Tenn. 1991)
• State v. Northcutt, 568 S.W.2d 636 (Tenn. 1978)
• Freeman v. Marco Transp. Co., 27 S.W.3d 909 (Tenn. 2000)
• Barnett v. Barnett, 27 S.W.3d 904 (Tenn. 2000)
• In re C.K.G., 173 S.W.3d 714 (Tenn. 2005)
• Monday v. Oulette, 118 F.3d 1099 (6th Cir. 1997)
• Graham v. Connor, 490 U.S. 386 (1989)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-123.pdf

Original opinion text

December 30, 2010

Opinion No. 10-123

Use of Restraint During Evaluation of Mentally Ill Patient

QUESTIONS

1. After transporting a mentally ill patient to a hospital for evaluation regarding admission to involuntary inpatient treatment under Tenn. Code Ann. § 33-6-407, is a sheriff department employee required, upon request by hospital staff, to use the sheriff's police powers to restrain the person or otherwise use force to assist hospital staff to complete the required evaluation?

2. Would it violate the civil rights of a person being evaluated for admission to involuntary inpatient treatment under Tenn. Code Ann. § 33-6-407 for the sheriff department employee who transported the person to the hospital to use his or her police powers to assist hospital personnel to be able to complete certain parts of the evaluation if the mentally ill patient is threatening violence, is a danger to himself or others, and if the hospital requested law enforcement assistance in order to complete the evaluation?

OPINIONS

1. No, after transporting a mentally ill patient to a hospital for evaluation, a sheriff department employee is not required under Title 33, Chapter 6, Part 4 to use his or her police powers to restrain a mentally ill patient or otherwise use force to assist hospital staff to complete the evaluation required by Tenn. Code Ann. § 33-6-407 to determine whether the mentally ill patient is subject to involuntary admission.

2. No, as long as the restraint or use of force is reasonable, in good faith, and justified by the circumstances of the particular case, it would not be a violation of civil rights for the sheriff department employee to use his or her police powers to assist hospital personnel to be able to complete such evaluation.

ANALYSIS

If a person believed to have a mental illness is certified as being in need of emergency diagnosis, evaluation and treatment at a hospital or treatment resource and is not already at the facility, the sheriff or an appropriately designated transportation agent has the responsibility to transport the person to a hospital or treatment resource with available suitable accommodation for examination. Tenn. Code Ann. § 33-6-406. Once at the hospital or treatment resource, a licensed physician shall examine the person to determine whether such person meets all the requirements in § 33-6-403 so as to be subject to involuntary inpatient treatment. Tenn. Code Ann. § 33-6-407. Except in counties having a population of six hundred thousand (600,000) or more according to the 1970 federal census or any subsequent federal census, the sheriff or transportation agent must notify the hospital or treatment resource as to where the person is and the best estimate of anticipated time of arrival at the hospital or treatment resource. Tenn. Code Ann. § 33-6-406(b). If the sheriff or transportation agent has given notice and arrives at the hospital or treatment resource within the anticipated time of arrival, the sheriff or transportation agent is required to remain at the hospital or treatment resource long enough for the person to be evaluated for admission but need not remain longer than one hour and forty-five minutes. Id. If the person is found not to meet the requirements for admission and the sheriff or transportation agent is under a duty to remain at the hospital or treatment resource under § 33-6-406, the sheriff or transportation agent has the responsibility to return the person to the county. Tenn. Code Ann. § 33-6-407(c). But, if the sheriff or transportation agent is not under a duty to remain at the hospital or treatment resource under § 33-6-406, the hospital or treatment resource has the responsibility to return the person to the county. Tenn. Code Ann. § 33-6-407(d).

You have asked whether the sheriff department employee who transported the person to the hospital or treatment resource is required to assist the hospital, upon request, to restrain the person or otherwise use force to allow completion of the invasive portions of the evaluation required by Tenn. Code Ann. § 33-6-407 to determine whether the mentally ill patient is subject to involuntary admission. This question requires construction of the statutes to determine if the legislature intended to require the sheriff department employee to use his or her police powers to restrain a mentally ill patient or otherwise use force to assist hospital staff to complete this evaluation.

In construing statutes, courts must "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). When the statute is unambiguous, legislative intent is determined from the plain and ordinary meaning of the language used in the statute. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000). The statutory language must be "read in the context of the entire statute, without any forced or subtle construction which would extend or limit its meaning." National Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). Statutes that are related to the same subject matter should be read in pari materia. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). In addition, a statute should be construed so that "no part will be inoperative, superfluous, void or insignificant." State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978). At the same time, a statute should not be construed to produce an absurd or incongruous result. Barnett v. Barnett, 27 S.W.3d 904, 908 (Tenn. 2000).

It appears that the legislature did not intend to require a sheriff department employee who has transported a person for evaluation under § 33-6-407 to use his or her police powers to assist the hospital, upon request, in completing the evaluation. Under the provisions of § 33-6-406, the sheriff or designated transportation agent has a duty, under certain circumstances, to remain at the hospital or treatment resource for one hour and forty-five minutes while the evaluation is being completed. In reading this statute together with § 33-6-407, the legislative intent for this requirement appears to be to assure that the sheriff or designated transportation agent remains available to transport the person back to the county if the evaluation does not find the person to meet the criteria for involuntary admission. There is no specific statutory provision requiring a sheriff department employee to assist with the evaluation through the use of his or her police powers. Thus, construing Title 33, Chapter 6, Part 4 as a whole, it is the opinion of this Office that a sheriff department employee is not required to use his or her police powers to restrain a mentally ill patient or otherwise use force to assist hospital staff to complete the evaluation required by § 33-6-407.¹

You have also asked whether it would violate the civil rights of a person being evaluated under § 33-6-407 for the sheriff department employee to use his or her police powers to assist the hospital in completing certain parts of the evaluation if the mentally ill patient is threatening violence, is a danger to himself or others, and if the hospital requested law enforcement assistance in order to complete the evaluation. While the statutes do not specifically require a sheriff department employee to use his or her police powers to assist the hospital in completing an evaluation under § 33-6-407, it has long been recognized that a sheriff department employee has authority under common law to use force or restraint as reasonably necessary to take a mentally ill person into custody. See Op. Tenn. Att'y Gen. 82-266 (May 24, 1982). The Sixth Circuit Court of Appeals has held that the Fourth Amendment applies in the civil setting to seizures of individuals for psychiatric evaluations or involuntary confinement. Monday v. Oulette, 118 F.3d 1099, 1102 (6th Cir. 1997). The Fourth Amendment prohibits the use of excessive force during the seizure of a free citizen. Graham v. Connor, 490 U.S. 386, 394 (1989). Accordingly, seizing and detaining a person for a psychiatric evaluation requires probable cause to believe that the person is dangerous to himself or others and the officer must employ a reasonable amount of force when effecting the seizure. Monday, 118 F.3d at 1102.

Assuming that the use of restraints is reasonably necessary based on the specific circumstances presented and the use of force is not excessive, it is our opinion that it would not violate the civil rights of the person being evaluated under § 33-6-407 regarding admission to involuntary inpatient treatment for the sheriff department employee who transported the person to the hospital to use his or her police powers to assist hospital personnel to be able to complete the evaluation.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

DIANNE STAMEY DYCUS
Deputy Attorney General

Requested by:
Honorable Terri Lynn Weaver
State Representative
105 War Memorial Building
Nashville, TN 37243