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S.B. 175
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MENTAL HEALTH AND CORRECTIONS LAW
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AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Robert F. Montgomery
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AN ACT RELATING TO THE HUMAN SERVICES CODE AND THE CODE OF CRIMINAL
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PROCEDURE; AMENDING PROVISIONS RELATING TO THE MEMBERSHIP OF THE
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MENTAL HEALTH AND CORRECTIONS ADVISORY COUNCIL; AND CHANGING THE
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CRITERIA, PROCESS, AND AUTHORITY FOR TRANSFER OF MENTALLY ILL
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PRISONERS TO AND FROM THE STATE HOSPITAL AND THE STATE PRISON.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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62A-12-204.5, as last amended by Chapter 243, Laws of Utah 1996
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77-15-1, as enacted by Chapter 15, Laws of Utah 1980
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77-16a-202, as enacted by Chapter 171, Laws of Utah 1992
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77-16a-203, as enacted by Chapter 171, Laws of Utah 1992
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77-16a-204, as enacted by Chapter 171, Laws of Utah 1992
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-12-204.5
is amended to read:
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62A-12-204.5. Mental Health and Corrections Advisory Council -- Establishment
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and purpose -- Admission of person in custody of Department of Corrections to state hospital
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-- Funding.
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(1) There is established the Mental Health and Corrections Advisory Council composed
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of the following members:
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(a) the director or his [designee] appointee;
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(b) the superintendent or his [designee] appointee;
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(c) the executive director of the Department of Corrections, or his [designee] appointee;
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(d) a member of the Board of Pardons and Parole or its appointee; [and]
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(e) the attorney general, or his appointee;
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S [
(f) a member of the Judicial Council, as selected by that council;
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(g)
]
(f)
s the director of the Division of Services for People with Disabilities, or his appointee;
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S [(h)]
(g)
s a representative from a local mental health authority or an organization, excluding the
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state hospital that provides mental health services under contract with the Division of Mental
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Health or a local mental health authority, as appointed by the director of the division; and
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[(e)] S [(i)]
(h)
s other [members] persons as [designated] appointed by the members described in
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Subsections (3)(a) through [(d)] (h).
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(2) (a) (i) Members who are not government employees shall receive no compensation or
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benefits for their services, but may receive per diem and expenses incurred in the performance of
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the member's official duties at the rates established by the Division of Finance under Sections
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63A-3-106
and
63A-3-107
.
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(ii) Members may decline to receive per diem and expenses for their service.
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(b) (i) State government officer and employee members who do not receive salary, per
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diem, or expenses from their agency for their service may receive per diem and expenses incurred
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in the performance of their official duties from the council at the rates established by the Division
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of Finance under Sections
63A-3-106
and
63A-3-107
.
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(ii) State government officer and employee members may decline to receive per diem and
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expenses for their service.
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(3) The purpose of the Mental Health and Corrections Advisory Council is to:
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(a) advise the director regarding admissions to the state hospital of persons in the custody
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of the Department of Corrections;
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(b) develop policies for coordination between the division and the Department of
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Corrections; and
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(c) advise the executive director of the Department of Corrections regarding issues of care
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for persons in the custody of the Department of Corrections who are mentally ill.
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(4) The executive director of the Department of Corrections may request the director to
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admit a person who is in the custody of the Department of Corrections to the state hospital[.], if
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the clinical director of mental health within the Department of Corrections finds that the inmate
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has mentally deteriorated to the point that admission to the state hospital is necessary to ensure
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adequate mental health treatment. In determining whether that [person] inmate should be placed
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in the state hospital, the director of the division shall consider:
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(a) the mental health treatment needs of the [person] inmate;
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(b) the treatment programs available at the state hospital; and
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(c) whether the [person to be admitted] inmate meets the requirements of Subsection
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62A-12-209
(2)[; and].
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[(d) the availability of treatment space at the state hospital.]
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(5) If the director denies the admission of an inmate as requested by the clinical director
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of mental health within the Department of Corrections, the Board of Pardons and Parole shall
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determine whether the inmate will be admitted to the state hospital. The Board of Pardons and
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Parole shall consider:
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(a) the mental health treatment needs of the inmate;
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(b) the treatment programs available at the state hospital; and
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(c) whether the inmate meets the requirements of Subsection
62A-12-209
(2).
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[(5)] (6) The state hospital shall receive any person in the custody of the Department of
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Corrections when ordered by either the director or the Board of Pardons and Parole, pursuant to
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Subsection (5). Any person so transferred to the state hospital shall remain in the custody of the
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Department of Corrections, and the state hospital shall act solely as the agent of the Department
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of Corrections.
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(7) Inmates transferred to the state hospital pursuant to this section shall be transferred
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back to the Department of Corrections through negotiations between the director and the director
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of the Department of Corrections. If agreement between the director and the director of the
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Department of Corrections cannot be reached, the Board of Pardons and Parole shall have final
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authority in determining whether a person will be transferred back to the Department of
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Corrections. In making that determination, that board shall consider:
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(a) the mental health treatment needs of the inmate;
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(b) the treatment programs available at the state hospital;
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(c) whether the person continues to meet the requirements of Subsection
62A-12-209
(2);
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(d) the ability of the state hospital to provide adequate treatment to the person, as well as
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safety and security to the public; and
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(e) whether, in the opinion of the director of the division, in consultation with the clinical
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director of the state hospital, the person's treatment needs have been met.
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[(6) Beginning in fiscal year 1990, all funds necessary to treat persons at the state hospital
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who are in the custody of the Department of Corrections shall be appropriated to the Department
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of Corrections for use in accordance with Section
64-13-7.5
.]
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Section 2.
Section
77-15-1
is amended to read:
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77-15-1. Incompetent person not to be tried for crime.
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No person who is incompetent to proceed shall be tried [or punished] for a public offense.
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Section 3.
Section
77-16a-202
is amended to read:
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77-16a-202. Person found guilty and mentally ill --Commitment to department.
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(1) In sentencing and committing a mentally ill offender to the department under
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Subsection
77-16a-104
(3)(a), the court shall:
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(a) sentence the offender to a term of imprisonment and order that he be committed to the
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department and admitted to the Utah State Hospital for care and treatment until transferred to UDC
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in accordance with Sections
77-16a-203
and
77-16a-204
, making provision for readmission to the
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Utah State Hospital whenever the requirements and conditions of Section
77-16a-204
are met; or
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(b) sentence the offender to a term of imprisonment and order that he be committed to the
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department for care and treatment for no more than 18 months, or until [he has reached maximum
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benefit,] the offender's condition has been stabilized to the point that commitment to the
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department and admission to the Utah State Hospital is no longer necessary to ensure adequate
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mental health treatment, whichever occurs first. At the expiration of that time, the court may recall
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the sentence and commitment, and resentence the offender. A commitment and retention of
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jurisdiction under this Subsection (1)(b) shall be specified in the sentencing order. If that
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specification is not included in the sentencing order, the offender shall be committed in accordance
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with Subsection (1)(a).
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(2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of a
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mentally ill offender who has been convicted of a capital offense. In capital cases, the court shall
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make the findings required by this section after the capital sentencing proceeding mandated by
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Section
76-3-207
.
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(3) When an offender is committed to the department and admitted to the Utah State
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Hospital under Subsection (1)(b), the department shall provide the court with reports of the
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offender's mental health status every six months. Those reports shall be prepared in accordance
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with the requirements of Section
77-16a-203
. Additionally, the court may appoint an independent
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examiner to assess the mental health status of the offender.
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(4) The period of commitment to the department and admission to the Utah State Hospital,
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and any subsequent retransfers to the Utah State Hospital made pursuant to Section
77-16a-204
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may not exceed the maximum sentence imposed by the court. Upon expiration of that sentence,
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the administrator of the facility where the offender is located may initiate civil proceedings for
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involuntary commitment in accordance with Title 62A, Chapter 12 or Title 62A, Chapter 5.
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Section 4.
Section
77-16a-203
is amended to read:
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77-16a-203. Review of guilty and mentally ill persons committed to department --
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Recommendations for transfer.
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(1) The executive director shall designate a review team of at least three qualified staff
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members, including at least one licensed psychiatrist, to evaluate the mental condition of each
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mentally ill offender committed to it in accordance with Section
77-16a-202
, at least once every
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six months. If the offender is mentally retarded, the review team shall include at least one
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individual who is a designated mental retardation professional, as defined in Section
62A-5-301
.
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(2) At the conclusion of its evaluation, the review team described in Subsection (1) shall
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make a report to the executive director regarding the offender's current mental condition, his
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progress since commitment, prognosis, and a recommendation regarding whether the mentally ill
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offender should be transferred to UDC or remain in the custody of the department.
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(3) (a) The executive director shall notify the UDC medical administrator, and the board's
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mental health adviser that a mentally ill offender is eligible for transfer to UDC if the review team
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finds that the offender:
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(i) is no longer mentally ill; or
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(ii) is still mentally ill and [continues] may continue to be a danger to himself or others,
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but can be controlled if adequate care, medication, and treatment are provided[, and that he has
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reached maximum benefit from the programs within the Department.] by UDC; and
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(iii) the offender's condition has been stabilized to the point that commitment to the
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department and admission to the Utah State Hospital are no longer necessary to ensure adequate
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mental health treatment.
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(b) The administrator of the mental health facility where the offender is located shall
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provide the UDC medical administrator with a copy of the reviewing staff's recommendation and:
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(i) all available clinical facts;
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(ii) the diagnosis;
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(iii) the course of treatment received at the mental health facility;
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(iv) the prognosis for remission of symptoms;
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(v) the potential for recidivism;
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(vi) an estimation of the offender's dangerousness, either to himself or others; and
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(vii) recommendations for future treatment.
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Section 5.
Section
77-16a-204
is amended to read:
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77-16a-204. UDC acceptance of transfer of guilty and mentally ill persons --
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Re-transfer from UDC to department for admission to the Utah State Hospital.
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(1) The UDC medical administrator shall designate a transfer team of at least three
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qualified staff members, including at least one licensed psychiatrist, to evaluate the
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recommendation made by the department's review team pursuant to Section
77-16a-203
. If the
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offender is mentally retarded, the transfer team shall include at least one person who has expertise
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in testing and diagnosis of mentally retarded individuals.
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(2) The transfer team shall concur in the recommendation if it determines that UDC can
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provide the mentally ill offender with [the level of care necessary to maintain his mental condition]
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adequate mental health treatment.
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(3) The UDC transfer team and medical administrator shall recommend the facility in
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which the offender should be placed and the treatment to be provided in order for his mental
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condition to remain stabilized to the director of the Division of Institutional Operations, within the
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Department of Corrections.
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(4) In the event that the department and UDC do not agree on the transfer of a mentally
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ill offender, the administrator of the mental health facility where the offender is located shall notify
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the mental health adviser for the board, in writing, of the dispute. The mental health adviser shall
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be provided with copies of all reports and recommendations. The board's mental health adviser
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shall make a recommendation to the board on the transfer and the board shall issue its decision
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within 30 days.
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(5) UDC shall notify the board whenever a mentally ill offender is transferred from the
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department to UDC.
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(6) When a mentally ill offender sentenced under Section
77-16a-202
, who has been
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transferred from the department to UDC, and accepted by UDC, is evaluated and it is determined
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that the offender's mental condition has deteriorated or that the offender has become mentally
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unstable, the offender may be readmitted to the Utah State Hospital in accordance with the findings
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and procedures described in Subsections
62A-12-204.5
(4) through (6).
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(7) Any person readmitted to the Utah State Hospital pursuant to Subsection (6) shall
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remain in the custody of UDC, and the state hospital shall act solely as the agent of UDC.
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(8) A mentally ill offender who has been readmitted to the Utah State Hospital pursuant
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to Subsection (6) shall be transferred back to S [
DOC
]
UDC
s in accordance with the provisions of
190a
Section
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77-16a-203
.
Legislative Review Note
as of 2-7-00 8:21 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.