Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 38 First Substitute (2019GS)

Sponsor

Sen. Fillmore, L.

Final action

Governor Signed 3/27/2019

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• requires that a mental health professional provide a patient the opportunity to waive the patient's privacy rights;
• requires a designated examiner to consider a proposed patient's mental health history when evaluating the proposed patient for civil commitment;
• allows a designated examiner to request a court order to obtain a proposed patient's mental health history;
• requires a designated examiner to disclose to an unrepresented proposed patient the fact that the designated examiner may, by court order, obtain the proposed patient's mental health history;
• limits the circumstances under which a court may terminate a civil commitment; and
• makes technical changes.

Every vote on this bill

Bill text

MENTAL HEALTH AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Lincoln Fillmore
House Sponsor: 
Brad M. Daw
LONG TITLE
General Description:
This bill amends provisions of the civil commitment code and the definition of
"unprofessional conduct" applied to mental health professionals.
Highlighted Provisions:
This bill:
▸ requires that a mental health professional provide a patient the opportunity to waive
the patient's privacy rights;
▸ requires a designated examiner to consider a proposed patient's mental health
history when evaluating the proposed patient for civil commitment;
▸ allows a designated examiner to request a court order to obtain a proposed patient's
mental health history;
▸ requires a designated examiner to disclose to an unrepresented proposed patient the
fact that the designated examiner may, by court order, obtain the proposed patient's
mental health history;
▸ limits the circumstances under which a court may terminate a civil commitment;
and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
58-60-110
, as last amended by Laws of Utah 2001, Chapter 281
62A-15-618
, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
Chapter 8
62A-15-626
, as last amended by Laws of Utah 2008, Chapter 3
62A-15-631
, as last amended by Laws of Utah 2018, Chapter 322
62A-15-632
, as last amended by Laws of Utah 2018, Chapter 322
62A-15-637
, as last amended by Laws of Utah 2018, Chapter 322
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
58-60-110
 is amended to read:
58-60-110.
Unprofessional conduct.
(1) As used in this chapter, "unprofessional conduct" includes:
(a) using or employing the services of any individual to assist a licensee in any manner
not in accordance with the generally recognized practices, standards, or ethics of the profession
for which the individual is licensed, or the laws of the state;
(b) failure to confine practice conduct to those acts or practices:
(i) in which the individual is competent by education, training, and experience within
limits of education, training, and experience; and
(ii) which are within applicable scope of practice laws of this chapter; [
and
]
(c) disclosing or refusing to disclose any confidential communication under Section
58-60-114
 or 
58-60-509
[
.
]
; and
(d) a pattern of failing to offer a patient the opportunity to waive the patient's privacy
rights under the Standards for Privacy of Individually Identifiable Health Information, 45
C.F.R., Parts 160 and 164.
(2) "Unprofessional conduct" under this chapter may be further defined by division
rule.
(3) Notwithstanding Section 
58-1-401
, the division may not act upon the license of a
licensee for unprofessional conduct under Subsection (1)(d).
Section 2. Section 
62A-15-618
 is amended to read:
62A-15-618.
Designated examiners.
(1) A designated examiner shall consider a proposed patient's mental health history
when evaluating a proposed patient.
(2) A designated examiner may request a court order to obtain a proposed patient's
mental health records if a proposed patient refuses to share this information with the designated
examiner.
(3)
 [
Designated examiners
] 
A designated examiner
 shall be allowed a reasonable fee
by the county legislative body of the county in which the proposed patient resides or is found,
unless [
they are
] 
the designated examiner is
 otherwise paid.
Section 3. Section 
62A-15-626
 is amended to read:
62A-15-626.
Release from commitment.
(1) 
(a)
 [
A
] 
Subject to Subsection (1)(b), a
 local mental health authority or [
its
] 
the
mental health authority's
 designee shall release from commitment any [
person
] 
individual
 who,
in the opinion of the local mental health authority or [
its
] 
the mental health authority's
designee, has recovered or no longer meets the criteria specified in Section 
62A-15-631
.
(b) A local mental health authority's inability to locate a committed individual may not
be the basis for the individual's release, unless the court orders the release of the individual
after a hearing.
(2) A local mental health authority or [
its
] 
the mental health authority's
 designee may
release from commitment any patient whose commitment is determined to be no longer
advisable except as provided by Section 
78A-6-120
, but an effort shall be made to assure that
any further supportive services required to meet the patient's needs upon release will be
provided.
(3) When a patient has been committed to a local mental health authority by judicial
process, the local mental health authority shall follow the procedures described in Sections 
62A-15-636
 and 
62A-15-637
.
Section 4. 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) A responsible [
person
] 
individual
 who has reason to know of an adult's mental
illness and the condition or circumstances that have led 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 proposed
patient's:
(i) name;
(ii) date of birth; and
(iii) social security number; and
(b) (i) a certificate of a licensed physician or a designated examiner stating that within
the seven-day period immediately preceding the certification, the physician or designated
examiner examined the proposed patient and is of the opinion that the proposed patient has a
mental illness and should be involuntarily committed; or
(ii) a written statement by the applicant that:
(A) the proposed patient 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 the court
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) 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 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.
(4) 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 proposed
patient 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) 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 proposed
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) Proceedings for commitment of an individual under the age of 18 years to a local
mental health authority may be commenced in accordance with Part 7, Commitment of Persons
Under Age 18 to Division of Substance Abuse and Mental Health.
(7) 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) 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
or its designee under court order for detention or examination, the court shall appoint two
designated examiners:
(a) who did not sign the civil commitment application nor the civil commitment
certification under Subsection (1);
(b) one of whom is a licensed physician; and
(c) one of whom may be designated by the proposed patient or the proposed patient's
counsel, if that designated examiner is reasonably available.
(9) The court shall schedule a hearing to be held within 10 calendar days of the day on
which the designated examiners are appointed.
(10) The designated examiners shall:
(a) conduct their examinations separately;
(b) conduct the examinations at the home of the proposed patient, at a hospital or other
medical facility, or at any other suitable place that is not likely to have a harmful effect on the
proposed patient's health;
(c) inform the proposed patient, if not represented by an attorney:
(i) that the proposed patient does not have to say anything;
(ii) of the nature and reasons for the examination;
(iii) that the examination was ordered by the court;
(iv) that any information volunteered could form part of the basis for the proposed
patient's involuntary commitment; [
and
]
(v) that findings resulting from the examination will be made available to the court;
and
(vi) that the designated examiner may, under court order, obtain the proposed patient's
mental health records; and
(d) within 24 hours of examining the proposed patient, report to the court, orally or in
writing, whether the proposed patient is mentally ill, has agreed to voluntary commitment, as
described in Section 
62A-15-625
, or has acceptable programs available to the proposed patient
without court proceedings. If the designated examiner reports orally, the designated examiner
shall immediately send a written report to the clerk of the court.
(11) If a designated examiner is unable to complete an examination on the first attempt
because the proposed patient refuses to submit to the examination, the court shall fix a
reasonable compensation to be paid to the examiner.
(12) If the local mental health authority, its designee, or a medical examiner determines
before the court hearing that the conditions justifying the findings leading to a commitment
hearing no longer exist, the local mental health authority, its designee, or the medical examiner
shall immediately report that determination to the court.
(13) The court may terminate the proceedings and dismiss the application at any time,
including prior to the hearing, if the designated examiners or the local mental health authority
or its designee informs the court that the proposed patient:
(a) is not mentally ill;
(b) has agreed to voluntary commitment, as described in Section 
62A-15-625
; or
(c) has acceptable options for treatment programs that are available without court
proceedings.
(14) Before the hearing, an opportunity to be represented by counsel shall be afforded
to every proposed patient, and if neither the proposed patient nor others provide counsel, the
court shall appoint counsel and allow counsel sufficient time to consult with the proposed
patient before the hearing. In the case of an indigent proposed patient, the payment of
reasonable attorney fees for counsel, as determined by the court, shall be made by the county in
which the proposed patient resides or is found.
(15) (a) 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 proposed patient's right to appear only
for good cause shown, and that cause shall be made a matter of court record.
(b) 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.
(c) 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.
(d) 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.
(e) (i) A local mental health authority or its designee[
,
] or the physician in charge of the
proposed 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 proposed patient's counsel at the time
of the hearing, and at any time prior to the hearing upon request.
(16) The court shall order commitment of a proposed patient 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 (15)(d)
], 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 to self or others;
(c) the proposed 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 proposed patient with treatment
that is adequate and appropriate to the proposed patient's conditions and needs. In the absence
of the required findings of the court after the hearing, the court shall dismiss the proceedings.
(17) (a) The order of commitment shall designate the period for which the patient shall
be treated. When the patient 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 (16) 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 the discharge to the court. Otherwise,
the court shall immediately appoint two designated examiners and proceed under Subsections
(8) through (14).
(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) through (14).
(18) Any patient committed as a result of an original hearing or a patient'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.
(19) Costs of all proceedings under this section shall be paid by the county in which the
proposed patient resides or is found.
Section 5. 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 an individual is involuntarily committed to the custody of a local mental
health authority under Subsection 
62A-15-631
(16), the conditions justifying commitment
under that subsection shall be considered to continue to exist, for purposes of continued
treatment under Subsection 
62A-15-631
(17) 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.
]
, unless:
(a) the court terminates the civil commitment through a review hearing; or
(b) the local mental health authority or a designee of the local mental health authority
with custody over the patient discharges the patient and provides notice of the discharge to the
court, as described in Subsections 
62A-15-631
(17)(c) and 
62A-15-637
(2).
(2) A patient whose treatment is continued or who is conditionally released under [
the
terms of this section,
] 
Section 
62A-15-637
 shall be maintained in the least restrictive
environment available that can provide the patient with the treatment that is adequate and
appropriate.
(3) Except for good cause, a court may not terminate a civil commitment through a
review hearing if the patient:
(a) is under a conditional release agreement; and
(b) does not appear at the review hearing.
Section 6. 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 a designee of a local mental health authority may
conditionally
 release an improved patient to less restrictive treatment when:
(a) the authority specifies the [
less-restrictive
] 
less restrictive
 treatment; and
(b) the patient agrees in writing to the less restrictive treatment.
(2) 
(a)
 Whenever a local mental health authority or a designee of a local mental health
authority determines that the conditions justifying commitment no longer exist, the local
mental health authority or the designee shall discharge the patient.
(b)
 If the 
discharged
 patient has been committed through judicial proceedings, 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.
(3) (a) A local mental health authority or a designee of a local mental health authority
is authorized to issue an order for the immediate placement of a current patient into a more
restrictive environment, if:
(i) the local mental health authority or a designee of a local mental health authority has
reason to believe that the patient's current environment is aggravating the patient's mental
illness; or
(ii) the patient has failed to comply with the specified treatment plan to which the
patient agreed in writing.
(b) An order for a more restrictive environment shall [
include
]
:
(i) state
 the reasons for the order [
and shall
]
;
(ii)
 authorize any peace officer to take the patient into physical custody and transport
the patient to a facility designated by the local mental health authority[
.
]
;
(iii) inform the patient of the right to a hearing, the right to appointed counsel, and the
other procedures described in Subsection 
62A-15-631
(14); and
(iv)
 [
Prior
] 
prior
 to or upon admission to the more restrictive environment, or upon
imposition of additional or different requirements as conditions for continued 
conditional
release from inpatient care, copies of the order shall be [
personally
] delivered to
:
(A)
 the patient [
and sent to
]
;
(B)
 the person in whose care the patient is placed[
.The order shall also be sent to
]
;
(C)
 the patient's counsel of record
;
 and [
to
]
(D)
 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
(14).
]
(c) If the patient 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 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
(16), unless, by the time set for the
hearing, the patient is returned to the less restrictive environment or the patient withdraws the
request for a hearing, in writing.
(d) The court shall:
(i) make findings regarding whether the conditions described 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; and
(ii) designate, by order, the environment for the patient's care and the period for which
the patient shall be treated, which may not extend beyond expiration of the original order of
commitment.
(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.