Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 299 First Substitute (2017GS)

Sponsor

Rep. Redd, E.

Final action

House/ filed 3/9/2017

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• clarifies the role of a mental health officer;
• modifies definitions;
• removes references to the Utah State Hospital Board, which no longer exists;
• removes the exemption of security officers from the public safety retirement system;
• updates code provisions in accordance with the existing practice of private hospitals providing inpatient mental health treatment;
• makes changes to procedures and criteria for civil commitments;
• gives officers authority to not take a mentally ill individual into custody in order to avoid escalating a dangerous situation; and
• makes technical changes.

Every vote on this bill

Bill text

SUBSTANCE ABUSE AND MENTAL HEALTH ACT
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Edward H. Redd
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill amends provisions of the Substance Abuse and Mental Health Act.
Highlighted Provisions:
This bill:
▸ clarifies the role of a mental health officer;
▸ modifies definitions;
▸ removes references to the Utah State Hospital Board, which no longer exists;
▸ removes the exemption of security officers from the public safety retirement system;
▸ updates code provisions in accordance with the existing practice of private hospitals
providing inpatient mental health treatment;
▸ makes changes to procedures and criteria for civil commitments;
▸ gives officers authority to not take a mentally ill individual into custody in order to
avoid escalating a dangerous situation; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
62A-15-602
, as last amended by Laws of Utah 2012, Chapter 248
62A-15-603
, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
Chapter 8
62A-15-613
, as last amended by Laws of Utah 2006, Chapter 139
62A-15-625
, as last amended by Laws of Utah 2003, Chapter 195
62A-15-627
, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
Chapter 8
62A-15-628
, as last amended by Laws of Utah 2003, Chapter 195
62A-15-629
, as last amended by Laws of Utah 2011, Chapter 366
62A-15-631
, as last amended by Laws of Utah 2013, Chapters 29 and 312
62A-15-632
, as last amended by Laws of Utah 2011, Chapter 366
62A-15-635
, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
Chapter 8
62A-15-637
, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
Chapter 8
62A-15-703
, as last amended by Laws of Utah 2008, Chapter 3
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
62A-15-602
 is amended to read:
62A-15-602.
Definitions.
As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah
Forensic Mental Health Facility, and Part 10, Declaration for Mental Health Treatment:
(1) "Adult" means [
a person
] 
an individual
years of age or older.
(2) "Commitment to the custody of a local mental health authority" means that an adult
is committed to the custody of the local mental health authority that governs the mental health
catchment area [
in which the proposed patient
] 
where the adult
 resides or is found.
(3) "Community mental health center" means an entity that provides treatment and
services to a resident of a designated geographical area, that operates by or under contract with
a local mental health authority, and that complies with state standards for community mental
health centers.
[
(3)
] 
(4)
 "Designated examiner" means a licensed physician [
familiar with severe
mental illness, preferably a psychiatrist
], 
preferably a psychiatrist, who is
 designated by the
division as specially qualified by training or experience in the diagnosis of mental or related
illness or [
another
] 
a
 licensed mental health professional designated by the division as specially
qualified by training and 
who has
 at least five years' continual experience in the treatment of
mental [
or related
] illness. [
At least one designated examiner in any case shall be a licensed
physician. No person who is the applicant, or who signs the certification, under Section
62A-15-631
 may be a designated examiner in the same case.
]
[
(4)
] 
(5)
 "Designee" means a physician who has responsibility for medical functions
including admission and discharge, an employee of a local mental health authority, or an
employee of an [
agency
] 
entity
 that has contracted with a local mental health authority to
provide mental health services under Section 
17-43-304
.
[
(5)
] 
(6)
 "Harmful sexual conduct" means [
any of
] the following conduct upon an
individual without the individual's consent, [
or upon an individual who cannot legally consent
to the conduct including under the
] 
including the nonconsensual
 circumstances described in
Subsections 
76-5-406
(1) through (12):
(a) sexual intercourse;
(b) penetration, however slight, of the genital or anal opening of the individual;
(c) any sexual act involving the genitals or anus of the actor or the individual and the
mouth or anus of either individual, regardless of the gender of either participant; or
(d) any sexual act causing substantial emotional injury or bodily pain.
[
(6)
] 
(7)
 "Institution" means a hospital[
,
] or a health facility licensed under [
the
provisions of
] Section 
26-21-9
.
[
(7) "Licensed physician" means an individual licensed under the laws of this state to
practice medicine, or a medical officer of the United States government while in this state in
the performance of official duties.
]
[
(8) "Local comprehensive community mental health center" means an agency or
organization that provides treatment and services to residents of a designated geographic area,
operated by or under contract with a local mental health authority, in compliance with state
standards for local comprehensive community mental health centers.
]
[
(9)
] 
(8)
 "Mental health facility" means the Utah State Hospital or other facility that
provides mental health services under contract with the division, a local mental health
authority, [
or organization
] 
an entity
 that contracts with a local mental health authority
, or an
entity that provides acute inpatient psychiatric services to a patient
.
[
(10)
] 
(9)
 "Mental health officer" means an individual who is designated by a local
mental health authority as qualified by training and experience in the recognition and
identification of mental illness, to [
interact with and transport persons to any an individual to a
designated mental health facility.
]
:
(a) apply for and provide certification for a temporary commitment; or
(b) assist in the arrangement of transportation to a designated mental health facility.
[
(11)
] 
(10)
 "Mental illness" means [
a psychiatric disorder as defined by the current
edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
American Psychiatric Association which substantially impairs a person's mental, emotional,
behavioral, or related functioning.
]
:
(a) a psychiatric disorder that substantially impairs a person's mental, emotional,
behavioral, or related functioning; or
(b) the same as that term is defined in:
(i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
published by the American Psychiatric Association; or
(ii) the current edition of the International Statistical Classification of Diseases and
Related Health Problems.
[
(12)
] 
(11)
 "Patient" means an individual under commitment to the custody or to the
treatment services of a local mental health authority.
(12) "Physician" means an individual who is:
(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
Practice Act.
(13) "Serious bodily injury" means bodily injury [
which
] 
that
 involves a substantial
risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(14) "Substantial danger" means [
the person, by his or her behavior, due to mental
illness
] 
that due to mental illness, an individual is at serious risk of
:
[
(a) is at serious risk to:
]
[
(i) commit suicide;
]
[
(ii) inflict serious bodily injury on himself or herself; or
]
[
(iii) because of his or her actions or inaction, suffer serious bodily injury because he or
she is incapable of providing the basic necessities of life, such as food, clothing, and shelter;
or
]
[
(b) is at serious risk to cause or attempt to cause serious bodily injury or engage in
harmful sexual conduct.
]
(a) suicide;
(b) serious bodily self-injury;
(c) serious bodily injury because the individual is incapable of providing the basic
necessities of life, including food, clothing, or shelter;
(d) causing or attempting to cause serious bodily injury to another individual; or
(e) engaging in harmful sexual conduct.
(15) "Treatment" means psychotherapy, medication, including the administration of
psychotropic medication, [
and
] 
or
 other medical treatments that are generally accepted medical
[
and
] 
or
 psychosocial interventions for the purpose of restoring the patient to an optimal level
of functioning in the least restrictive environment.
Section 2. Section 
62A-15-603
 is amended to read:
62A-15-603.
Administration of state hospital -- Division -- Authority.
(1) The administration of the state hospital is vested in the division where it shall
function and be administered as a part of the state's comprehensive mental health program and,
to the fullest extent possible, shall be coordinated with local mental health authority programs. 
[
When it becomes feasible the board may direct that the hospital be decentralized and
administered at the local level by being integrated with, and becoming a part of, the community
mental health services.
]
[
(2) The division shall succeed to all the powers, discharge all the duties, and perform
all the functions, duties, rights, and responsibilities pertaining to the state hospital which by
law are conferred upon it or required to be discharged or performed. However, the functions,
powers, duties, rights, and responsibilities of the division and of the board otherwise provided
by law and by this part apply.
]
(2) The division has the same powers, duties, rights, and responsibilities as, and shall
perform the same functions that by law are conferred or required to be discharged or performed
by, the state hospital.
(3) Supervision and administration of security responsibilities for the state hospital is
vested in the division. The executive director shall designate, as special function officers,
individuals 
with peace officer authority
 to perform special security functions for the state
hospital [
that require peace officer authority. These special function officers may not become
or be designated as members of the Public Safety Retirement System
].
[
(4) Directors of mental health facilities that house involuntary detainees or detainees
committed pursuant to judicial order may establish secure areas, as prescribed in Section
76-8-311.1
, within the mental health facility for the detainees.
]
(4) A director of a mental health facility that houses an involuntary patient or a patient
committed by judicial order may establish secure areas, as provided in Section 
76-8-311.1
,
within the mental health facility for the patient.
Section 3. Section 
62A-15-613
 is amended to read:
62A-15-613.
Appointment of superintendent -- Qualifications -- Powers and
responsibilities.
(1) The director, with the advice [
and
]
,
 consent [
of the board
]
,
 and [
the
] approval of the
executive director, shall appoint a superintendent of the state hospital, who shall hold office at
the will of the director.
(2) The superintendent shall have a bachelor's degree from an accredited university or
college, be experienced in administration, and be knowledgeable in matters concerning mental
health.
(3) [
Subject to the rules of the board, the
] 
The
 superintendent has general responsibility
for the buildings, grounds, and property of the state hospital. The superintendent shall appoint,
with the approval of the director, as many employees as necessary for the efficient and
economical care and management of the state hospital, and shall fix [
their
] 
the employees'
compensation and administer personnel functions according to the standards of the Department
of Human Resource Management.
Section 4. Section 
62A-15-625
 is amended to read:
62A-15-625.
Voluntary admission of adults.
[
(1) A local mental health authority or its designee may admit to that authority, for
observation, diagnosis, care, and treatment any individual who is mentally ill or has symptoms
of mental illness and who, being 18 years of age or older, applies for voluntary admission.
]
[
(2) (a) No adult may be committed or continue to be committed to a local mental
health authority against his will except as provided in this chapter.
]
[
(b) A person under 18 years of age may be committed to the physical custody of a local
mental health authority only after a court commitment proceeding in accordance with the
provisions of Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse
and Mental Health.
]
(1) A local mental health authority, a designee of a local mental health authority, or
another mental health facility may admit for observation, diagnosis, care, and treatment an
adult who applies for voluntary admission and who has a mental illness or exhibits the
symptoms of a mental illness.
(2) No adult may be committed to a local mental health authority against that adult's
will except as provided in this chapter.
(3) An adult may be voluntarily admitted to a local mental health authority for
treatment at the Utah State Hospital as a condition of probation or stay of sentence only after
the requirements of Subsection 
77-18-1
(13) have been met.
Section 5. Section 
62A-15-627
 is amended to read:
62A-15-627.
Release of voluntary patient -- Exceptions.
(1)
 A [
voluntary
] patient who 
is voluntarily admitted, as described in Section
62A-15-625
, and who
 requests release, 
verbally or in writing,
 or whose release is requested in
writing by [
his
] 
the patient's
 legal guardian, parent, spouse, or adult next of kin, shall be
immediately released except that:
[
(1) if the patient was voluntarily admitted on his own application, and
]
(a) release may be conditioned upon the agreement of the patient, if
 the request for
release is made by [
a person
] 
an individual
 other than the patient[
, release may be conditioned
upon the agreement of the patient; and
]
; or
[
(2)
] 
(b)
 if [
a
] 
the admitting
 local mental health authority, [
or its designee is of the
opinion that release of a patient would be unsafe for that patient or others,
] 
designee of the
local mental health authority, or mental health facility has cause to believe that the patient has a
mental illness and presents a substantial danger to self or others,
 release of that patient may be
postponed [
for up to 48 hours, excluding weekends and holidays, provided that the local mental
health authority, or its designee, shall cause to be instituted involuntary commitment
proceedings with the district court within the specified time period, unless cause no longer
exists for instituting those proceedings. Written
] 
by:
(i) using the temporary commitment procedures described in Section 
62A-15-629
; and
(ii) providing written
 notice of [
that
] 
the
 postponement [
with
] 
and
 the reasons[
, shall
be given
] 
for the postponement
 to the patient without undue delay.
(2)
 No judicial proceedings 
for involuntary commitment
 may be commenced with
respect to a voluntary patient unless [
he
] 
the patient
 has requested release.
Section 6. Section 
62A-15-628
 is amended to read:
62A-15-628.
Involuntary commitment -- Procedures.
(1) An adult may not be involuntarily committed to the custody of a local mental health
authority except under the following provisions:
(a) emergency procedures for temporary commitment upon medical or designated
examiner certification, as provided in Subsection 
62A-15-629
(1)
(a)
;
(b) emergency procedures for temporary commitment without endorsement of medical
or designated examiner certification, as provided in Subsection 
62A-15-629
[
(2)
]
(1)(b)
; or
(c) commitment on court order, as provided in Section 
62A-15-631
.
(2) A person under 18 years of age may be committed to the physical custody of a local
mental health authority only [
after a court commitment proceeding
] in accordance with the
provisions of Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse
and Mental Health.
Section 7. Section 
62A-15-629
 is amended to read:
62A-15-629.
Temporary commitment -- Requirements and procedures.
(1) [
(a) 
] An adult [
may
] 
shall
 be temporarily, involuntarily committed to a local mental
health authority upon:
(a) a written application that:
(i) [
written application
] 
is completed
 by a responsible [
person
] 
individual
 who has
reason to know, stating a belief that the [
individual
] 
adult, due to mental illness,
 is likely to
[
cause serious injury
] 
pose substantial danger
 to self or others if not [
immediately
] restrained[
,
]
and stating the personal knowledge of the [
individual's
] 
adult's
 condition or circumstances
[
which
] 
that
 lead to [
that
] 
the individual's
 belief; and
(ii) 
includes
 a certification by a licensed physician or designated examiner stating that
the physician or designated examiner has examined the [
individual
] 
adult
 within a three-day
period immediately preceding that certification, and that the physician or designated examiner
is of the opinion that the [
individual has a mental illness and, because of the individual's mental
illness, is likely to injure self or others if not immediately restrained.
] 
adult due to mental
illness poses a substantial danger to self or others; or
[
(b) Application and certification as described in Subsection (1)(a) authorizes any
peace officer to take the individual into the custody of a local mental health authority and
transport the individual to that authority's designated facility.
]
[
(2) If a duly authorized peace officer observes a person involved in conduct that gives
the officer probable cause to believe that the person has a mental illness, as defined in Section
62A-15-602, and because of that apparent mental illness and conduct, there is a substantial
likelihood of serious harm to that person or others, pending proceedings for examination and
certification under this part, the officer may take that person into protective custody. The peace
officer shall transport the person to be transported to the designated facility of the appropriate
local mental health authority pursuant to this section, either on the basis of the peace officer's
own observation or on the basis of a mental health officer's observation that has been reported
to the peace officer by that mental health officer. Immediately thereafter, the officer shall place
the person in the custody of the local mental health authority and make application for 
commitment of that person to the local mental health authority. The application shall be on a
prescribed form and shall include the following:
]
[
(a) a statement by the officer that the officer believes, on the basis of personal
observation or on the basis of a mental health officer's observation reported to the officer by the
mental health officer, that the person is, as a result of a mental illness, a substantial and
immediate danger to self or others;
]
[
(b) the specific nature of the danger;
]
[
(c) a summary of the observations upon which the statement of danger is based; and
]
[
(d) a statement of facts which called the person to the attention of the officer.
]
(b) a peace officer or a mental health officer:
(i) observing an adult's conduct that gives the officer probable cause to believe that:
(A) the adult has a mental illness; and
(B) because of the adult's mental illness and conduct, the adult poses a substantial
danger to self or others; and
(ii) completing a temporary commitment application that:
(A) is on a form prescribed by the division;
(B) states the officer's belief that the adult poses a substantial danger to self or others;
(C) states the specific nature of the danger;
(D) provides a summary of the observations upon which the statement of danger is
based; and
(E) provides a statement of the facts that called the adult to the officer's attention.
(2) If at any time a patient committed under this section no longer meets the
commitment criteria described in Subsection (1), the local mental health authority or the local
mental health authority's designee shall document the change and release the patient.
(3) A [
person
] 
patient
 committed under this section may be held for a maximum of 24
hours 
after commitment
, excluding Saturdays, Sundays, and legal holidays[
. At the expiration
of that time period, the person shall be released unless application for involuntary commitment
has been commenced pursuant to Section 
62A-15-631
. If that application has been made, an
order of detention may be entered under Subsection 
62A-15-631
(3). If no order of detention is
issued, the patient shall be released unless he has made voluntary application for admission.
]
,
unless:
(a) as described in Section 
62A-15-631
, an application for involuntary commitment is
commenced, which may be accompanied by an order of detention under Subsection
62A-15-631
(4); or
(b) the patient has made a voluntary application for admission.
[
(4) Transportation of persons with a mental illness pursuant to Subsections (1) and (2)
shall be conducted by the appropriate municipal, or city or town, law enforcement authority or,
under the appropriate law enforcement's authority, by ambulance to the extent that Subsection
(5) applies. However, if the designated facility is outside of that authority's jurisdiction, the
appropriate county sheriff shall transport the person or cause the person to be transported by
ambulance to the extent that Subsection (5) applies.
]
[
(5) Notwithstanding Subsections (2) and (4), a peace officer shall cause a person to be
transported by ambulance if the person meets any of the criteria in Section 
26-8a-305
. In
addition, if the person requires physical medical attention, the peace officer shall direct that
transportation be to an appropriate medical facility for treatment.
]
(4) Upon a written application described in Subsection (1)(a) or the observation and
belief described in Subsection (1)(b), the adult shall be:
(a) taken into a peace officer's protective custody, if necessary for public safety; and
(b) transported for temporary commitment to a facility designated by the local mental
health authority, by means of:
(i) an ambulance, if the adult meets any of the criteria of Section 
26-8a-305
;
(ii) an ambulance, if a peace officer is not necessary for public safety, and
transportation arrangements are made by a physician, designated examiner, or mental health
officer;
(iii) the city, town, or municipal law enforcement authority with jurisdiction over the
location where the individual to be committed is present, if the individual is not transported by
ambulance; or
(iv) the county sheriff, if the designated facility is outside of the jurisdiction of the law
enforcement authority described in Subsection (4)(b)(iii) and the individual is not transported
by ambulance.
(5) Notwithstanding Subsection (4):
(a) an individual shall be transported by ambulance to an appropriate medical facility
for treatment if the individual requires physical medical attention; and
(b) a peace officer may not take an individual into protective custody or transport an
individual for temporary commitment if the action would increase the risk of substantial danger
to the individual or others, as determined by the officer's experience and training, the policies
and procedures established by the officer's law enforcement agency, and any applicable federal,
state, or case law.
(6) Title 63G, Chapter 7, Governmental Immunity Act of Utah, applies to this section.
Section 8. Section 
62A-15-631
 is amended to read:
62A-15-631.
Involuntary commitment under court order -- Examination --
Hearing -- Power of court -- Findings required -- Costs.
[
(1) Proceedings for involuntary commitment of an individual who is 18 years of age
or older may be commenced by filing a written application with the district court of the county
in which the proposed patient resides or is found, by a responsible person who has reason to
know of the condition or circumstances of the proposed patient which lead to the belief that the
individual has a mental illness and should be involuntarily committed. The application shall
include:
]
(1) A responsible person who has reason to know of an adult's mental illness and the
condition or circumstances that have lead to the adult's need to be involuntarily committed may
initiate an involuntary commitment court proceeding by filing, in the district court in the
county where the proposed patient resides or is found, a written application that includes:
(a) unless the court finds that the information is not reasonably available, the
[
individual's
] 
proposed patient's
:
(i) name;
(ii) date of birth; and
(iii) social security number; and
[
(b) either:
]
(b)
 (i) a certificate of a licensed physician or a designated examiner stating that within
a seven-day period immediately preceding the certification the physician or designated
examiner has examined the individual, and that the physician or designated examiner is of the
opinion that the individual [
is mentally ill
] 
has a mental illness
 and should be involuntarily
committed; or
(ii) a written statement by the applicant that:
(A) the individual has been requested to, but has refused to, submit to an examination
of mental condition by a licensed physician or designated examiner;
(B) is sworn to under oath; and
(C) states the facts upon which the application is based.
(2) (a) Subject to Subsection (2)(b), before issuing a judicial order, the court may
require the applicant to consult with the appropriate local mental health authority, and may
direct a mental health professional from that local mental health authority to interview the
applicant and the proposed patient to determine the existing facts and report them to the court.
(b) The consultation described in Subsection (2)(a):
(i) may take place at or before the hearing; and
(ii) is required if the local mental health authority appears at the hearing.
(3) In a commitment application, at least one designated examiner shall be a licensed
physician. Neither the civil commitment applicant nor the individual who signs the certification
under Subsection (1) may be a designated examiner in the same application.
[
(3)
] 
(4)
 If the court finds from the application, from any other statements under oath,
or from any reports from a mental health professional that there is a reasonable basis to believe
that the proposed patient has a mental illness that poses a substantial danger, as defined in
Section 
62A-15-602
, to self or others requiring involuntary commitment pending examination
and hearing; or, if the proposed patient has refused to submit to an interview with a mental
health professional as directed by the court or to go to a treatment facility voluntarily, the court
may issue an order, directed to a mental health officer or peace officer, to immediately place
the proposed patient in the custody of a local mental health authority or in a temporary
emergency facility as provided in Section 
62A-15-634
 to be detained for the purpose of
examination. Within 24 hours of the issuance of the order for examination, a local mental
health authority or its designee shall report to the court, orally or in writing, whether the patient
is, in the opinion of the examiners, mentally ill, whether the patient has agreed to become a
voluntary patient under Section 
62A-15-625
, and whether treatment programs are available and
acceptable without court proceedings. Based on that information, the court may, without
taking any further action, terminate the proceedings and dismiss the application. In any event,
if the examiner reports orally, the examiner shall immediately send the report in writing to the
clerk of the court.
[
(4)
] 
(5)
 Notice of commencement of proceedings for involuntary commitment, setting
forth the allegations of the application and any reported facts, together with a copy of any
official order of detention, shall be provided by the court to a proposed patient before, or upon,
placement in the custody of a local mental health authority or, with respect to any individual
presently in the custody of a local mental health authority whose status is being changed from
voluntary to involuntary, upon the filing of an application for that purpose with the court. A
copy of that order of detention shall be maintained at the place of detention.
[
(5)
] 
(6)
 Notice of commencement of those proceedings shall be provided by the court
as soon as practicable to the applicant, any legal guardian, any immediate adult family
members, legal counsel for the parties involved, the local mental health authority or its
designee, and any other persons whom the proposed patient or the court shall designate. That
notice shall advise those persons that a hearing may be held within the time provided by law. If
the patient has refused to permit release of information necessary for provisions of notice under
this subsection, the extent of notice shall be determined by the court.
[
(6)
] 
(7)
 Proceedings for commitment of an individual under the age of 18 years to [
the
division
] 
a local mental health authority
 may be commenced [
by filing a written application
with the juvenile court in accordance with the provisions of
] 
in accordance with
 Part 7,
Commitment of Persons Under Age 18 to Division of Substance Abuse and Mental Health.
[
(7)
] 
(8)
 The district court may, in its discretion, transfer the case to any other district
court within this state, provided that the transfer will not be adverse to the interest of the
proposed patient.
[
(8)
] 
(9)
 (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the
issuance of a judicial order, or after commitment of a proposed patient to a local mental health
authority under court order for detention or examination, the court shall appoint two designated
examiners to examine the proposed patient. If requested by the proposed patient's counsel, the
court shall appoint, as one of the examiners, a reasonably available qualified person designated
by counsel. The examinations, to be conducted separately, shall be held at the home of the
proposed patient, a hospital or other medical facility, or at any other suitable place that is not
likely to have a harmful effect on the patient's health.
(b) The examiner shall inform the patient if not represented by an attorney that, if
desired, the patient does not have to say anything, the nature and reasons for the examination,
that it was ordered by the court, that any information volunteered could form part of the basis
for the patient's involuntary commitment, and that findings resulting from the examination will
be made available to the court.
(c) A time shall be set for a hearing to be held within 10 calendar days of the
appointment of the designated examiners, unless those examiners or a local mental health
authority or its designee informs the court prior to that hearing date that the patient is not
mentally ill, that the patient has agreed to become a voluntary patient under Section
62A-15-625
, or that treatment programs are available and acceptable without court
proceedings, in which event the court may, without taking any further action, terminate the
proceedings and dismiss the application.
(d) When the length of time between temporary commitment and the initial
commitment court hearing exceeds 72 hours, the local mental health authority or a designee of
the local mental health authority shall review the patient's condition regularly until the
commencement of the initial court hearing. If the local mental health authority or the designee
determines before the court hearing that the conditions justifying the findings leading to a
hearing for commitment no longer exist, the local mental health authority or the designee shall
immediately report that determination to the court.
[
(9)
] 
(10)
 (a) Before the hearing, an opportunity to be represented by counsel shall be
afforded to every proposed patient, and if neither the patient nor others provide counsel, the
court shall appoint counsel and allow counsel sufficient time to consult with the patient before
the hearing. In the case of an indigent patient, the payment of reasonable attorney fees for
counsel, as determined by the court, shall be made by the county in which the patient resides or
was found.
(b) The proposed patient, the applicant, and all other persons to whom notice is
required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to
present and cross-examine witnesses. The court may, in its discretion, receive the testimony of
any other person. The court may allow a waiver of the patient's right to appear only for good
cause shown, and that cause shall be made a matter of court record.
(c) The court is authorized to exclude all persons not necessary for the conduct of the
proceedings and may, upon motion of counsel, require the testimony of each examiner to be
given out of the presence of any other examiners.
(d) The hearing shall be conducted in as informal a manner as may be consistent with
orderly procedure, and in a physical setting that is not likely to have a harmful effect on the
mental health of the proposed patient.
(e) The court shall consider all relevant historical and material information that is
offered, subject to the rules of evidence, including reliable hearsay under Rule 1102, Utah
Rules of Evidence.
(f) (i) A local mental health authority or its designee, or the physician in charge of the
patient's care shall, at the time of the hearing, provide the court with the following information:
(A) the detention order;
(B) admission notes;
(C) the diagnosis;
(D) any doctors' orders;
(E) progress notes;
(F) nursing notes; and
(G) medication records pertaining to the current commitment.
(ii) That information shall also be supplied to the patient's counsel at the time of the
hearing, and at any time prior to the hearing upon request.
[
(10)
] 
(11)
 The court shall order commitment of an individual who is 18 years of age or
older to a local mental health authority if, upon completion of the hearing and consideration of
the information presented in accordance with Subsection [
(9)
] 
(10)
(e), the court finds by clear
and convincing evidence that:
(a) the proposed patient has a mental illness;
(b) because of the proposed patient's mental illness the proposed patient poses a
substantial danger[
, as defined in Section 
62A-15-602
,
] to self or others, which may include the
inability to provide the basic necessities of life such as food, clothing, [
and
] 
or
 shelter, if
allowed to remain at liberty;
(c) the patient lacks the ability to engage in a rational decision-making process
regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh
the possible risks of accepting or rejecting treatment;
(d) there is no appropriate less-restrictive alternative to a court order of commitment;
and
(e) the local mental health authority can provide the individual with treatment that is
adequate and appropriate to the individual's conditions and needs. In the absence of the
required findings of the court after the hearing, the court shall [
forthwith
] dismiss the
proceedings.
[
(11)
] 
(12)
 (a) The order of commitment shall designate the period for which the
individual shall be treated. When the individual is not under an order of commitment at the
time of the hearing, that period may not exceed six months without benefit of a review hearing. 
Upon such a review hearing, to be commenced prior to the expiration of the previous order, an
order for commitment may be for an indeterminate period, if the court finds by clear and
convincing evidence that the required conditions in Subsection [
(10)
] 
(11)
 will last for an
indeterminate period.
(b) The court shall maintain a current list of all patients under its order of commitment. 
That list shall be reviewed to determine those patients who have been under an order of
commitment for the designated period. At least two weeks prior to the expiration of the
designated period of any order of commitment still in effect, the court that entered the original
order shall inform the appropriate local mental health authority or its designee. The local
mental health authority or its designee shall immediately reexamine the reasons upon which the
order of commitment was based. If the local mental health authority or its designee determines
that the conditions justifying that commitment no longer exist, it shall discharge the patient
from involuntary commitment and immediately report that to the court. Otherwise, the court
shall immediately appoint two designated examiners and proceed under Subsections [
(8)
] 
(9)
through [
(10)
] 
(11)
.
(c) The local mental health authority or its designee responsible for the care of a patient
under an order of commitment for an indeterminate period, shall at six-month intervals
reexamine the reasons upon which the order of indeterminate commitment was based. If the
local mental health authority or its designee determines that the conditions justifying that
commitment no longer exist, that local mental health authority or its designee shall discharge
the patient from its custody and immediately report the discharge to the court. If the local
mental health authority or its designee determines that the conditions justifying that
commitment continue to exist, the local mental health authority or its designee shall send a
written report of those findings to the court. The patient and the patient's counsel of record
shall be notified in writing that the involuntary commitment will be continued, the reasons for
that decision, and that the patient has the right to a review hearing by making a request to the
court. Upon receiving the request, the court shall immediately appoint two designated
examiners and proceed under Subsections [
(8)
] 
(9)
 through [
(10)
] 
(11)
.
[
(12)
] 
(13)
 In the event that the designated examiners are unable, because a proposed
patient refuses to submit to an examination, to complete that examination on the first attempt,
the court shall fix a reasonable compensation to be paid to those designated examiners for their
services.
[
(13)
] 
(14)
 Any person committed as a result of an original hearing or a person's legally
designated representative who is aggrieved by the findings, conclusions, and order of the court
entered in the original hearing has the right to a new hearing upon a petition filed with the court
within 30 days of the entry of the court order. The petition must allege error or mistake in the
findings, in which case the court shall appoint three impartial designated examiners previously
unrelated to the case to conduct an additional examination of the patient. The new hearing
shall, in all other respects, be conducted in the manner otherwise permitted.
[
(14)
] 
(15)
 Costs of all proceedings under this section shall be paid by the county in
which the proposed patient resides or is found.
Section 9. Section 
62A-15-632
 is amended to read:
62A-15-632.
Circumstances under which conditions justifying initial involuntary
commitment shall be considered to continue to exist.
(1) After [
a person
] 
an individual
 has been involuntarily committed to the custody of a
local mental health authority under Subsection 
62A-15-631
[
(10)
]
(11)
, the conditions justifying
commitment under that subsection shall be considered to continue to exist, for purposes of
continued treatment under Subsection 
62A-15-631
[
(11)
]
(12)
 or conditional release under
Section 
62A-15-637
, if the court finds that the patient is still mentally ill, and that absent an
order of involuntary commitment and without continued treatment the patient will suffer severe
and abnormal mental and emotional distress as indicated by recent past history, and will
experience deterioration in the patient's ability to function in the least restrictive environment,
thereby making the patient a substantial danger to self or others.
(2) A patient whose treatment is continued or who is conditionally released under the
terms of this section, shall be maintained in the least restrictive environment available that can
provide the patient with the treatment that is adequate and appropriate.
Section 10. Section 
62A-15-635
 is amended to read:
62A-15-635.
Notice of commitment.
Whenever a patient has been temporarily, involuntarily committed to a local mental
health authority [
pursuant to
] 
under
 Section 
62A-15-629
 on the application of [
any person
] 
an
individual
 other than [
his
] 
the patient's
 legal guardian, spouse, or next of kin, the local mental
health authority or [
its
] 
a
 designee 
of the local mental health authority
 shall immediately notify
the patient's legal guardian, spouse, or next of kin, if known.
Section 11. Section 
62A-15-637
 is amended to read:
62A-15-637.
Release of patient to receive other treatment -- Placement in more
restrictive environment -- Procedures.
(1) A local mental health authority or [
its
] 
a
 designee 
of a local mental health authority
may release an improved patient to less restrictive treatment [
as it may specify, and when
agreed to in writing by the patient.
] 
when:
(a) the authority specifies the less restrictive treatment; and
(b) the patient agrees in writing to the less restrictive treatment.
(2)
 Whenever a local mental health authority or [
its designee
] 
a designee of a local
mental health authority
 determines that the conditions justifying commitment no longer exist,
the [
patient shall be discharged
] 
local mental health authority or the designee shall discharge
the patient
. If the patient has been committed through judicial proceedings, [
a report
describing that determination shall be sent
] 
the local mental health authority or the designee
shall prepare a report describing the determination and shall send the report
 to the clerk of the
court where the proceedings were held.
[
(2)
] 
(3)
 (a) A local mental health authority or [
its designee
] 
a designee of a local
mental health authority
 is authorized to issue an order for the immediate placement of a 
current
patient [
not previously released from an order of commitment
] into a more restrictive
environment, if
:
(i)
 the local mental health authority or [
its designee
] 
a designee of a local mental health
authority
 has reason to believe that the [
less restrictive environment in which the patient has
been placed
] 
patient's current environment
 is aggravating the patient's mental illness [
as
defined in Subsection 
62A-15-631
(10), or that
]
; or
(ii)
 the patient has failed to comply with the specified treatment plan to which [
he
] 
the
patient
 had agreed in writing.
(b) [
That
] 
An
 order 
for a more restrictive environment
 shall include the reasons
therefor and shall authorize any peace officer to take the patient into physical custody and
transport [
him
] 
the patient
 to a facility designated by the division. Prior to or upon admission
to the more restrictive environment, or upon imposition of additional or different requirements
as conditions for continued release from inpatient care, copies of the order shall be personally
delivered to the patient and sent to the person in whose care the patient is placed. The order
shall also be sent to the patient's counsel of record and to the court that entered the original
order of commitment. The order shall inform the patient of the right to a hearing, as prescribed
in this section, the right to appointed counsel, and the other procedures prescribed in
Subsection 
62A-15-631
[
(9)
]
(10)
.
(c) If the patient [
has been in the
] 
was in a
 less restrictive environment for more than
30 days and is aggrieved by the change to a more restrictive environment, the patient or [
his
]
the patient's
 representative may request a hearing within 30 days of the change. Upon receiving
the request, the court shall immediately appoint two designated examiners and proceed
pursuant to Section 
62A-15-631
, with the exception of Subsection 
62A-15-631
[
(10)
]
(11)
,
unless, by the time set for the hearing, the patient has [
again been placed in
] 
returned to
 the less
restrictive environment[
,
] or the patient has in writing withdrawn [
his
] 
the
 request for a
hearing.
[
(3) The court shall find that either:
]
[
(a) the less restrictive environment in which the patient has been placed is aggravating
the patient's dangerousness or mental illness as defined in Subsection 
62A-15-631
(10), or the
patient has failed to comply with a specified treatment plan to which he had agreed in writing;
or
]
[
(b) the less restrictive environment in which the patient has been placed is not
aggravating the patient's mental illness or dangerousness, and the patient has not failed to
comply with any specified treatment plan to which he had agreed in writing, in which event the
order shall designate that the individual shall be placed and treated in a less restrictive
environment appropriate for his needs.
]
(d) The court shall make findings as to whether the criteria in Subsections (3)(a) and
(b) were met and whether the patient is in the least restrictive environment that is appropriate
for the patient's needs.
[
(4)
] 
(e)
 The 
court
 order shall also designate 
the environment for the patient's care and
the period for which the [
individual
] 
patient
 shall be treated, in no event to extend beyond
expiration of the original order of commitment.
[
(5)
] 
(4)
 Nothing contained in this section prevents a local mental health authority or
its designee, pursuant to Section 
62A-15-636
, from discharging a patient from commitment or
from placing a patient in an environment that is less restrictive than that ordered by the court.
Section 12. Section 
62A-15-703
 is amended to read:
62A-15-703.
Residential and inpatient settings -- Commitment proceeding --
Child in physical custody of local mental health authority.
(1) A child may receive services from a local mental health authority in an inpatient or
residential setting only after a commitment proceeding, for the purpose of transferring physical
custody, has been conducted in accordance with the requirements of this section.
(2) That commitment proceeding shall be initiated by a petition for commitment, and
shall be a careful, diagnostic inquiry, conducted by a neutral and detached fact finder, pursuant
to the procedures and requirements of this section. If the findings described in Subsection (4)
exist, the proceeding shall result in the transfer of physical custody to the appropriate local
mental health authority, and the child may be placed in an inpatient or residential setting.
(3) The neutral and detached fact finder who conducts the inquiry:
(a) shall be a designated examiner, as defined in Subsection 
62A-15-602
(3); and
(b) may not profit, financially or otherwise, from the commitment or physical
placement of the child in that setting.
(4) Upon determination by [
the
] 
a
 fact finder that the following circumstances clearly
exist, [
he
] 
the fact finder
 may order that the child be committed to the physical custody of a
local mental health authority:
(a) the child has a mental illness, as defined in Subsection 
62A-15-602
(8);
(b) the child demonstrates a risk of [
harm to himself
]
, or a reasonable fear of the risk
of, substantial danger to self
 or others;
[
(c) the child is experiencing significant impairment in his ability to perform socially;
]
[
(d)
] 
(c)
 the child will benefit from care and treatment by the local mental health
authority; and
[
(e)
] 
(d)
 there is no appropriate less-restrictive alternative.
(5) (a) The commitment proceeding before the neutral and detached fact finder shall be
conducted in as informal manner as possible[
,
] and in a physical setting that is not likely to
have a harmful effect on the child.
(b) The child, the child's parent or legal guardian, the [
person who submitted the
petition for commitment
] 
petitioner
, and a representative of the appropriate local mental health
authority shall all receive informal notice of the date and time of the proceeding. Those parties
shall also be afforded an opportunity to appear and to address the petition for commitment.
(c) The neutral and detached fact finder may, in [
his
] 
the fact finder's
 discretion,
receive the testimony of any other person.
(d) The fact finder may allow [
the
] 
a
 child to waive [
his
] 
the child's
 right to be present
at the commitment proceeding, for good cause shown. If that right is waived, the purpose of
the waiver shall be made a matter of record at the proceeding.
(e) At the time of the commitment proceeding, the appropriate local mental health
authority, its designee, or the psychiatrist who has been in charge of the child's care prior to the
commitment proceeding, shall provide the neutral and detached fact finder with the following
information, as it relates to the period of current admission:
(i) the petition for commitment;
(ii) the admission notes;
(iii) the child's diagnosis;
(iv) physicians' orders;
(v) progress notes;
(vi) nursing notes; and
(vii) medication records.
(f) The information described in Subsection (5)(e) shall also be provided to the child's
parent or legal guardian upon written request.
(g) (i) The neutral and detached fact finder's decision of commitment shall state the
duration of the commitment. Any commitment to the physical custody of a local mental health
authority may not exceed 180 days. Prior to expiration of the commitment, and if further
commitment is sought, a hearing shall be conducted in the same manner as the initial
commitment proceeding, in accordance with the requirements of this section.
(ii) [
When
] 
At the conclusion of the hearing and subsequently in writing, when
 a
decision for commitment is made, the neutral and detached fact finder shall inform the child
and [
his
] 
the child's
 parent or legal guardian of that decision[
,
] and of the reasons for ordering
commitment [
at the conclusion of the hearing, and also in writing
].
(iii) The neutral and detached fact finder shall state in writing the basis of [
his
] 
the
decision, with specific reference to each of the criteria described in Subsection (4), as a matter
of record.
[
(6) Absent the procedures and findings required by this section, a child may be
temporarily committed to the physical custody of a local mental health authority only in
accordance with the emergency procedures described in Subsection 
62A-15-629
(1) or (2). A
child temporarily committed in accordance with those emergency procedures may be held for a
maximum of 72 hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of
that time period, the child shall be released unless the procedures and findings required by this
section have been satisfied.
]
(6) A child may be temporarily committed for a maximum of 72 hours, excluding
Saturdays, Sundays, and legal holidays, to the physical custody of a local mental health
authority in accordance with the procedures described in Section 
62A-15-629
 and upon
satisfaction of the risk factors described in Subsection (4). A child who is temporarily
committed shall be released at the expiration of the 72 hours unless the procedures and findings
required by this section for the commitment of a child are satisfied.
(7) A local mental health authority shall have physical custody of each child committed
to it under this section. The parent or legal guardian of a child committed to the physical
custody of a local mental health authority under this section, retains legal custody of the child,
unless legal custody has been otherwise modified by a court of competent jurisdiction. In cases
when the Division of Child and Family Services or the Division of Juvenile Justice Services
has legal custody of a child, that division shall retain legal custody for purposes of this part.
(8) The cost of caring for and maintaining a child in the physical custody of a local
mental health authority shall be assessed to and paid by the child's parents, according to their
ability to pay. For purposes of this section, the Division of Child and Family Services or the
Division of Juvenile Justice Services shall be financially responsible, in addition to the child's
parents, if the child is in the legal custody of either of those divisions at the time the child is
committed to the physical custody of a local mental health authority under this section, unless
Medicaid regulation or contract provisions specify otherwise. The Office of Recovery Services
shall assist those divisions in collecting the costs assessed pursuant to this section.
(9) Whenever application is made for commitment of a minor to a local mental health
authority under any provision of this section by a person other than the child's parent or
guardian, the local mental health authority or its designee shall notify the child's parent or
guardian. The parents shall be provided sufficient time to prepare and appear at any scheduled
proceeding.
(10) (a) Each child committed pursuant to this section is entitled to an appeal within 30
days after any order for commitment. The appeal may be brought on the child's own petition[
,
]
or that of [
his
] 
the child's
 parent or legal guardian, to the juvenile court in the district where the
child resides or is currently physically located. With regard to a child in the custody of the
Division of Child and Family Services or the Division of Juvenile Justice Services, the attorney
general's office shall handle the appeal, otherwise the appropriate county attorney's office is
responsible for appeals brought pursuant to this Subsection (10)(a).
(b) Upon receipt of the petition for appeal, the court shall appoint a designated
examiner previously unrelated to the case, to conduct an examination of the child in accordance
with the criteria described in Subsection (4), and file a written report with the court. The court
shall then conduct an appeal hearing to determine whether the findings described in Subsection
(4) exist by clear and convincing evidence.
(c) Prior to the time of the appeal hearing, the appropriate local mental health authority,
its designee, or the mental health professional who has been in charge of the child's care prior
to commitment, shall provide the court and the designated examiner for the appeal hearing with
the following information, as it relates to the period of current admission:
(i) the original petition for commitment;
(ii) admission notes;
(iii) diagnosis;
(iv) physicians' orders;
(v) progress notes;
(vi) nursing notes; and
(vii) medication records.
(d) Both the neutral and detached fact finder and the designated examiner appointed for
the appeal hearing shall be provided with an opportunity to review the most current
information described in Subsection (10)(c) prior to the appeal hearing.
(e) The child, [
his
] 
the child's
 parent or legal guardian, the person who submitted the
original petition for commitment, and a representative of the appropriate local mental health
authority shall be notified by the court of the date and time of the appeal hearing. Those
persons shall be afforded an opportunity to appear at the hearing. In reaching its decision, the
court shall review the record and findings of the neutral and detached fact finder, the report of
the designated examiner appointed pursuant to Subsection (10)(b), and may, in its discretion,
allow or require the testimony of the neutral and detached fact finder, the designated examiner,
the child, the child's parent or legal guardian, the person who brought the initial petition for
commitment, or any other person whose testimony the court deems relevant. The court may
allow the child to waive [
his
] 
the
 right to appear at the appeal hearing, for good cause shown. 
If that waiver is granted, the purpose shall be made a part of the court's record.
(11) Each local mental health authority has an affirmative duty to conduct periodic
evaluations of the mental health and treatment progress of every child committed to its physical
custody under this section, and to release any child who has sufficiently improved so that the
criteria justifying commitment no longer exist.
(12) (a) A local mental health authority or its designee, in conjunction with the child's
current treating mental health professional may release an improved child to a less restrictive
environment, as they determine appropriate. Whenever the local mental health authority or its
designee, and the child's current treating mental health professional, determine that the
conditions justifying commitment no longer exist, the child shall be discharged and released to
[
his
] 
the child's
 parent or legal guardian. With regard to a child who is in the physical custody
of the State Hospital, the treating psychiatrist or clinical director of the State Hospital shall be
the child's current treating mental health professional.
(b) A local mental health authority or its designee, in conjunction with the child's
current treating mental health professional, is authorized to issue a written order for the
immediate placement of a child not previously released from an order of commitment into a
more restrictive environment, if the local authority or its designee and the child's current
treating mental health professional has reason to believe that the less restrictive environment in
which the child has been placed is exacerbating [
his
] 
the child's
 mental illness, or increasing
the risk of harm to [
himself
] 
self
 or others.
(c) The written order described in Subsection (12)(b) shall include the reasons for
placement in a more restrictive environment and shall authorize any peace officer to take the
child into physical custody and transport [
him
] 
the child
 to a facility designated by the
appropriate local mental health authority in conjunction with the child's current treating mental
health professional. Prior to admission to the more restrictive environment, copies of the order
shall be personally delivered to the child, [
his
] 
the child's
 parent or legal guardian, the
administrator of the more restrictive environment, or [
his
] 
the administrator's
 designee, and the
child's former treatment provider or facility.
(d) If the child has been in a less restrictive environment for more than 30 days and is
aggrieved by the change to a more restrictive environment, the child or [
his
] 
the child's
representative may request a review within 30 days of the change, by a neutral and detached
fact finder as described in Subsection (3). The fact finder shall determine whether:
(i) the less restrictive environment in which the child has been placed is exacerbating
[
his
] 
the child's
 mental illness[
,
] or increasing the risk of harm to [
himself
] 
self
 or others; or
(ii) the less restrictive environment in which the child has been placed is not
exacerbating [
his
] 
the child's
 mental illness[
,
] or increasing the risk of harm to [
himself
] 
self
 or
others, in which case the fact finder shall designate that the child remain in the less restrictive
environment.
(e) Nothing in this section prevents a local mental health authority or its designee, in
conjunction with the child's current mental health professional, from discharging a child from
commitment or from placing a child in an environment that is less restrictive than that
designated by the neutral and detached fact finder.
(13) Each local mental health authority or its designee, in conjunction with the child's
current treating mental health professional shall discharge any child who, in the opinion of that
local authority, or its designee, and the child's current treating mental health professional, no
longer meets the criteria specified in Subsection (4), except as provided by Section 
78A-6-120
. 
The local authority and the mental health professional shall assure that any further supportive
services required to meet the child's needs upon release will be provided.
(14) Even though a child has been committed to the physical custody of a local mental
health authority [
pursuant to
] 
under
 this section, the child is still entitled to additional due
process proceedings, in accordance with Section 
62A-15-704
, before any treatment [
which
]
that
 may affect a constitutionally protected liberty or privacy interest is administered. Those
treatments include, but are not limited to, antipsychotic medication, electroshock therapy, and
psychosurgery.
Legislative Review Note
Office of Legislative Research and General Counsel