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Legal Information: Delaware

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December 8, 2020

Who starts the order of relinquishment process?

A mental health service provider usually starts the process for an order of relinquishment. When a mental health service provider identifies a person who presents a danger, s/he will send a written report to law enforcement. Then law enforcement files the petition for an order of relinquishment.1

A mental health service provider does not have to start the relinquishment process every time a person says that s/he might harm himself/herself or others, as we explain below.

When the mental health service provider has the option (discretion) to report to law enforcement:
A mental health service provider (or an institution, agency, or hospital) has the option to notify law enforcement if s/he believes that his/her patient is dangerous to him/herself or others. This can happen even if the patient has not made specific threats against an identifiable victim.1 Under the law, being dangerous to oneself or others means that within the reasonably foreseeable future:

  • due to his/her mental condition, there is a substantial likelihood that the person will:
    • suffer serious bodily harm himself/herself (“dangerous to self”); or
    • cause serious bodily harm to someone else (“dangerous to others”).2

When making this determination, the mental health service provider must take into account the person’s history, recent behavior, and any recent act or threat.2 The mental health service provider is allowed to break confidentiality in order to make a report to law enforcement, regardless of whether or not the conversations between the mental health service provider and the person were supposed to be kept confidential.3

When the mental health service provider must (has a duty to) report to law enforcement:
The mental health service provider has a duty to notify law enforcement and arrange for the patient’s immediate voluntary or involuntary hospitalization if:

  1. the patient makes a specific and immediate threat to do any of the following:
    • a threat to kill or seriously injure a clearly identified victim;
    • a threat to commit a specific violent act; or
    • a threat to destroy property under circumstances that could easily lead to serious personal injury or death; and
  2. the patient has an apparent intent and ability to carry out the threat.4

The mental health service provider must notify law enforcement in a “timely manner” and arrange for hospitalization in an inpatient or outpatient program. If the mental health service provider does not do that, s/he can possibly be held liable if the person follows through with any of the threats.4

1 16 Del. Code § 5403
2 11 Del. Code § 1448C(a)(2), (a)(4)
3 16 Del. Code §§ 5403(a); 5402(c)
4 16 Del. Code § 5402(a), (b)