§ 508. Removal of sick prisoners from jail. 1. A sheriff, in his or her discretion, may by written order permit incarcerated individuals confined in a local correctional facility to receive medical diagnosis and treatment in outside hospitals, upon the determination that such outside treatment and diagnosis is necessary by reason of inadequate facilities within the local correctional facility. Such incarcerated individuals shall remain under the jurisdiction and in the custody of said sheriff while in a hospital, other than a secure facility, as such term is defined in paragraph b of subdivision two of this section, and said sheriff shall enforce proper measures in each case to safely maintain such jurisdiction and custody. 2. a. If a physician to a jail or in case of a vacancy a physician acting as such and the warden or jailer certify in writing that a prisoner confined in a jail, either in a civil cause or upon a criminal charge, is in such a state of mental health that he or she is in need of involuntary care and treatment and in their opinion should be removed to a psychiatric hospital for treatment, the warden or jailer shall immediately notify the director who shall have the responsibility for providing treatment for such prisoner. If such director after examination of the prisoner by an examining physician designated by him or her shall determine that such prisoner is in need of involuntary care and treatment, the director shall file an application for the involuntary hospitalization of such prisoner pursuant to article nine of the mental hygiene law in a hospital or secure facility, as defined in paragraph b of this subdivision, operated by the office of mental health or in the case of a prisoner confined in a jail in a city or county which maintains or operates a general hospital containing a psychiatric prison ward approved by the office of mental health to such prison ward for care and treatment or to any other psychiatric hospital if such prison ward is filled to capacity. Such application shall be supported by the certificate of two physicians in accordance with the requirements of section 9.27 of the mental hygiene law and thereupon such prisoner shall be admitted forthwith to the hospital or secure facility in which such application is filed, and the procedures of the mental hygiene law governing the hospitalization of such prisoner. The jailer or warden having custody of the prisoner shall deliver the prisoner to the hospital or secure facility with which the director has filed the application. If such jailer or warden shall certify that such prisoner has a mental illness which is likely to result in serious harm to himself, herself or others and for which care in a psychiatric hospital is appropriate such jailer or warden shall effect the admission of such prisoner to a hospital or secure facility forthwith in accordance with the provisions of section 9.37 or 9.39 of the mental hygiene law and the hospital shall admit such prisoner. Upon admission of the prisoner, pursuant to section 9.37 or 9.39 of the mental hygiene law, the jailer or warden shall notify the director, the prisoner's attorney, and his or her family, where information about the family is available. While the prisoner is in the hospital, other than a secure facility, he or she shall remain in the custody under sufficient guard of the jailer or warden in charge of the jail from which he or she came. When the prisoner is in a secure facility, the jailer or warden may transfer custody of the incarcerated individual to the commissioner of mental health, pursuant to an agreement between such jailer or warden and such commissioner. A prisoner admitted to a psychiatric hospital pursuant to section 9.27, 9.37 or 9.39 of the mental hygiene law may be retained at the hospital or secure facility pursuant to the provisions of the mental hygiene law until he or she has improved sufficiently in his or her mental illness so that hospitalization is no longer necessary or until ordered by the court to be returned to the jail whichever comes first and in either event, the prisoner shall thereupon be returned to jail. The cost of the care and treatment of such prisoners in the hospital or secure facility shall be defrayed in accordance with the provisions of the mental hygiene law in such cases provided. From the time of admission of a prisoner to a hospital under this section the retention of such prisoner for care and treatment shall be subject to the provisions for notice, hearing, review and judicial approval of continued retention or transfer and continued retention provided by article nine of the mental hygiene law for the admission and retention of involuntary patients. b. As used in this section, the following terms shall have the following meanings:

(i) "Director" means (a) the director of a state hospital operated by the department of mental hygiene, or (b) the director of a hospital operated by any local government of the state that has been certified by the commissioner of mental hygiene as having adequate facilities to treat a person with a mental illness or (c) the director of community mental health services or the designees of any of the foregoing. The appropriate director to whom a jailer or warden shall certify the need for involuntary care and treatment and who shall have the responsibility for such care and treatment shall be determined in accordance with rules jointly adopted by the judicial conference and the commissioner of mental hygiene.

(ii) "Mental illness" shall mean an affliction with a mental disease or mental condition which is manifested by a disorder or a disturbance in behavior, feeling, thinking, or judgement to such an extent that the person afflicted requires care and treatment.

(iii) "In need of involuntary care and treatment" shall mean that a person has a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgement is so impaired that he is unable to understand the need for such care and treatment.

(iv) "Likelihood to result in serious harm" shall mean (1) substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself or (2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear or serious physical harm.

(v) "Secure facility" shall mean a facility operated or licensed by the office of mental health that has been approved and designated by the commissioner of mental health to receive and retain prisoners pursuant to this section, based upon a determination by such commissioner that the physical and internal security of the facility are sufficient to protect the safety and security of staff and persons served by the facility. c. If at any time the hospital in which a prisoner is hospitalized pursuant to this subdivision determines that the prisoner is not in such state of mental health to be in need of involuntary care and treatment the prisoner shall be returned to the jail forthwith. d. If at any time the director of a hospital in which a prisoner is hospitalized pursuant to this subdivision has reason to believe that the prisoner may be an incapacitated defendant as defined in article seven hundred thirty of the criminal procedure law he shall so notify the court in which the criminal charges are pending and such court shall thereupon issue an examination order pursuant to the provisions of article seven hundred thirty of the criminal procedure law. e. Nothing in this subdivision shall prevent the release of the prisoner from custody where appropriate by recognizance, bail, or otherwise as the court may direct.