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S.B. 200
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MENTAL HEALTH COMMITMENT 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 DIVISION OF MENTAL HEALTH, LOCAL MENTAL
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HEALTH AUTHORITIES, AND THE CODE OF CRIMINAL PROCEDURE; REMOVING THE
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REQUIREMENT OF FINDING THAT A PERSON IS AN "IMMEDIATE" DANGER TO SELF
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OR OTHERS FOR CIVIL COMMITMENT AND SPECIFIED CRIMINAL COMMITMENTS;
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AND FURTHER AMENDING CRITERIA FOR CIVIL COMMITMENT.
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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-12-234, as last amended by Chapter 285, Laws of Utah 1993
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77-16a-104, as last amended by Chapter 254, Laws of Utah 1995
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77-16a-201, as enacted by Chapter 171, Laws of Utah 1992
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This act enacts uncodified material.
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-12-234
is amended to read:
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62A-12-234. Involuntary commitment under court order -- Examination -- Hearing
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-- Power of court -- Findings required -- Costs.
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(1) Proceedings for involuntary commitment of an individual who is 18 years of age or
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older may be commenced by filing a written application with the district court of the county in
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which the proposed patient resides or is found, by a responsible person who has reason to know
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of the condition or circumstances of the proposed patient which lead to the belief that the
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individual is mentally ill and should be involuntarily committed. That application shall be
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accompanied by:
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(a) a certificate of a licensed physician or a designated examiner stating that within a
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seven-day period immediately preceding the certification the physician or designated examiner has
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examined the individual, and that he is of the opinion that the individual is mentally ill and should
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be involuntarily committed; or
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(b) a written statement by the applicant that the individual has been requested to but has
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refused to submit to an examination of mental condition by a licensed physician or designated
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examiner. That application shall be sworn to under oath and shall state the facts upon which the
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application is based.
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(2) Prior to issuing a judicial order, the court may require the applicant to consult with the
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appropriate local mental health authority, or may direct a mental health professional from that local
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mental health authority to interview the applicant and the proposed patient to determine the
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existing facts and report them to the court.
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(3) If the court finds from the application, from any other statements under oath, or from
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any reports from a mental health professional that there is a reasonable basis to believe that the
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proposed patient's mental condition and [immediate] S
SUBSTANTIAL
s danger to himself, others,
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or property requires
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involuntary commitment pending examination and hearing; or, if the proposed patient has refused
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to submit to an interview with a mental health professional as directed by the court or to go to a
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treatment facility voluntarily, the court may issue an order, directed to a mental health officer or
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peace officer, to immediately place the proposed patient in the custody of a local mental health
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authority or in a temporary emergency facility as provided in Section
62A-12-237
to be detained
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for the purpose of examination. Within 24 hours of the issuance of the order for examination, a
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local mental health authority or its designee shall report to the court, orally or in writing, whether
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the patient is, in the opinion of the examiners, mentally ill, whether the patient has agreed to
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become a voluntary patient under Section
62A-12-228
, and whether treatment programs are
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available and acceptable without court proceedings. Based on that information, the court may,
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without taking any further action, terminate the proceedings and dismiss the application. In any
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event, if the examiner reports orally, he shall immediately send the report in writing to the clerk
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of the court.
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(4) Notice of commencement of proceedings for involuntary commitment, setting forth
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the allegations of the application and any reported facts, together with a copy of any official order
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of detention, shall be provided by the court to a proposed patient prior to, or upon, placement in
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the custody of a local mental health authority or, with respect to any individual presently in the
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custody of a local mental health authority whose status is being changed from voluntary to
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involuntary, upon the filing of an application for that purpose with the court. A copy of that order
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of detention shall be maintained at the place of detention.
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(5) Notice of commencement of those proceedings shall be provided by the court as soon
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as practicable to the applicant, any legal guardian, any immediate adult family members, legal
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counsel for the parties involved, and any other persons whom the proposed patient or the court
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shall designate. That notice shall advise those persons that a hearing may be held within the time
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provided by law. If the patient has refused to permit release of information necessary for
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provisions of notice under this subsection, the extent of notice shall be determined by the court.
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(6) Proceedings for commitment of an individual under the age of 18 years to the division
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may be commenced by filing a written application with the juvenile court in accordance with the
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provisions of Part 2A.
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(7) The district court may, in its discretion, transfer the case to any other district court
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within this state, provided that the transfer will not be adverse to the interest of the proposed
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patient.
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(8) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance
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of a judicial order, or after commitment of a proposed patient to a local mental health authority
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under court order for detention or examination, the court shall appoint two designated examiners
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to examine the proposed patient. If requested by the proposed patient's counsel, the court shall
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appoint, as one of the examiners, a reasonably available qualified person designated by counsel.
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The examinations, to be conducted separately, shall be held at the home of the proposed patient,
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a hospital or other medical facility, or at any other suitable place that is not likely to have a harmful
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effect on the patient's health.
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(b) A time shall be set for a hearing to be held within ten court days of the appointment
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of the designated examiners, unless those examiners or a local mental health authority or its
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designee informs the court prior to that hearing date that the patient is not mentally ill, that he has
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agreed to become a voluntary patient under Section
62A-12-228
, or that treatment programs are
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available and acceptable without court proceedings, in which event the court may, without taking
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any further action, terminate the proceedings and dismiss the application.
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(9) (a) Prior to the hearing, an opportunity to be represented by counsel shall be afforded
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to every proposed patient, and if neither the patient nor others provide counsel, the court shall
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appoint counsel and allow him sufficient time to consult with the patient prior to the hearing. In
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the case of an indigent patient, the payment of reasonable attorneys' fees for counsel, as determined
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by the court, shall be made by the county in which the patient resides or was found.
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(b) The proposed patient, the applicant, and all other persons to whom notice is required
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to be given shall be afforded an opportunity to appear at the hearing, to testify, and to present and
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cross-examine witnesses. The court may, in its discretion, receive the testimony of any other
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person. The court may allow a waiver of the patient's right to appear only for good cause shown,
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and that cause shall be made a matter of court record.
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(c) The court is authorized to exclude all persons not necessary for the conduct of the
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proceedings and may, upon motion of counsel, require the testimony of each examiner to be given
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out of the presence of any other examiners.
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(d) The hearing shall be conducted in as informal a manner as may be consistent with
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orderly procedure, and in a physical setting that is not likely to have a harmful effect on the mental
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health of the proposed patient.
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(e) The court shall receive all relevant and material evidence which is offered, subject to
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the rules of evidence.
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(f) A local mental health authority or its designee, or the physician in charge of the
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patient's care shall, at the time of the hearing, provide the court with the following information:
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(i) the detention order;
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(ii) admission notes;
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(iii) the diagnosis;
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(iv) any doctors' orders;
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(v) progress notes;
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(vi) nursing notes; and
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(vii) medication records pertaining to the current commitment.
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That information shall also be supplied to the patient's counsel at the time of the hearing,
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and at any time prior to the hearing upon request.
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(10) The court shall order commitment of an individual who is 18 years of age or older to
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a local mental health authority if, upon completion of the hearing and consideration of the record,
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the court finds by clear and convincing evidence that:
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(a) the proposed patient has a mental illness; S
AND
s
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(b) because of the proposed patient's mental illness he poses [an immediate] a substantial
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danger [of physical injury to others or] to himself or others, which may include:
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(i) the inability to provide the basic necessities of life such as food, clothing, and shelter
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S
,TO A DEGREE THAT SIGNIFICANTLY AFFECTS HEALTH OR SAFETY
[
[
] ,
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if allowed to remain at liberty [
]
] s ;
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(ii) violent, threatening, or other endangering behavior which occurs as a result of the
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person's mental illness; or
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(iii) a currently relevant historical pattern indicating that without treatment the person will
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suffer severe and abnormal mental or emotional distress, and will experience deterioration of his
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ability to function in the least restrictive environment, thereby creating a substantial danger to
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himself or others; S
AND
s
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(c) the patient lacks the ability to engage in a rational decision-making process regarding
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the acceptance of mental treatment as demonstrated by evidence of inability to weigh the possible
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costs and benefits of treatment; S
AND
s
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(d) there is no appropriate less-restrictive alternative to a court order of commitment; and
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(e) the local mental health authority can provide the individual with treatment that is
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adequate and appropriate to his conditions and needs. In the absence of the required findings of
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the court after the hearing, the court shall forthwith dismiss the proceedings.
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(11) (a) The order of commitment shall designate the period for which the individual shall
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be treated. When the individual is not under an order of commitment at the time of the hearing,
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that period may not exceed six months without benefit of a review hearing. Upon such a review
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hearing, to be commenced prior to the expiration of the previous order, an order for commitment
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may be for an indeterminate period, if the court finds by clear and convincing evidence that the
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required conditions in Subsection (10) will last for an indeterminate period.
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(b) The court shall maintain a current list of all patients under its order of commitment.
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That list shall be reviewed to determine those patients who have been under an order of
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commitment for the designated period. At least two weeks prior to the expiration of the designated
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period of any order of commitment still in effect, the court that entered the original order shall
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inform the appropriate local mental health authority or its designee. The local mental health
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authority or its designee shall immediately reexamine the reasons upon which the order of
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commitment was based. If the local mental health authority or its designee determines that the
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conditions justifying that commitment no longer exist, it shall discharge the patient from
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involuntary commitment and immediately report that to the court. Otherwise, the court shall
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immediately appoint two designated examiners and proceed under Subsections (8) through (10).
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(c) The local mental health authority or its designee responsible for the care of a patient
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under an order of commitment for an indeterminate period, shall at six-month intervals reexamine
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the reasons upon which the order of indeterminate commitment was based. If the local mental
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health authority or its designee determines that the conditions justifying that commitment no longer
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exist, that local mental health authority or its designee shall discharge the patient from its custody
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and immediately report the discharge to the court. If the local mental health authority or its
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designee determines that the conditions justifying that commitment continue to exist, the local
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mental health authority or its designee shall send a written report of those findings to the court.
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The patient and his counsel of record shall be notified in writing that the involuntary commitment
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will be continued, the reasons for that decision, and that the patient has the right to a review
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hearing by making a request to the court. Upon receiving the request, the court shall immediately
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appoint two designated examiners and proceed under Subsections (8) through (10).
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(12) In the event that the designated examiners are unable, because a proposed patient
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refuses to submit to an examination, to complete that examination on the first attempt, the court
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shall fix a reasonable compensation to be paid to those designated examiners for their services.
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(13) Any person committed as a result of an original hearing or a person's legally
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designated representative who is aggrieved by the findings, conclusions, and order of the court
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entered in the original hearing has the right to a new hearing upon a petition filed with the court
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within 30 days of the entry of the court order. The petition must allege error or mistake in the
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findings, in which case the court shall appoint three impartial designated examiners previously
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unrelated to the case to conduct an additional examination of the patient. The new hearing shall,
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in all other respects, be conducted in the manner otherwise permitted.
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(14) Costs of all proceedings under this section shall be paid by the county in which the
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proposed patient resides or is found.
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Section 2.
Section
77-16a-104
is amended to read:
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77-16a-104. Verdict of guilty and mentally ill -- Hearing to determine present mental
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state.
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(1) Upon a verdict of guilty and mentally ill for the offense charged, or any lesser offense,
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the court shall conduct a hearing to determine the defendant's present mental state.
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(2) The court may order the department to examine the defendant to determine his mental
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condition, and may receive the evidence of any public or private expert witness offered by the
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defendant or the prosecutor. The defendant may be placed in the Utah State Hospital for that
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examination only upon approval of the executive director.
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(3) If the court finds by clear and convincing evidence that the defendant is currently
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mentally ill, it shall impose any sentence that could be imposed under law upon a defendant who
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is not mentally ill and who is convicted of the same offense, and:
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(a) commit him to the department, in accordance with the provisions of Section
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77-16a-202
, if it finds by clear and convincing evidence that:
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(i) because of his mental illness the defendant poses [an immediate physical] a substantial
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danger to self or others, including jeopardizing his own or others' safety, health, or welfare if
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placed in a correctional or probation setting, or lacks the ability to provide the basic necessities of
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life, such as food, clothing, and shelter, if placed on probation; and
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(ii) the department is able to provide the defendant with treatment, care, custody, and
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security that is adequate and appropriate to the defendant's conditions and needs. In order to insure
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that the requirements of this subsection are met, the court shall notify the executive director of the
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proposed placement and provide the department with an opportunity to evaluate the defendant and
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make a recommendation to the court regarding placement prior to commitment;
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(b) order probation in accordance with Section
77-16a-201
; or
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(c) if the requirements of Subsections (3)(a) and (b) are not met, place the defendant in the
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custody of UDC.
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(4) If the court finds that the defendant is not currently mentally ill, it shall sentence the
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defendant as it would any other defendant.
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(5) Expenses for examinations ordered under this section shall be paid in accordance with
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Subsection
77-16a-103
(5).
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Section 3.
Section
77-16a-201
is amended to read:
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77-16a-201. Probation.
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(1) (a) When the court proposes to place on probation a defendant who has pled or is found
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guilty and mentally ill, it shall request UDC to provide a presentence investigation report regarding
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whether probation is appropriate for that defendant and, if so, recommending a specific treatment
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program. If the defendant is placed on probation, that treatment program shall be made a condition
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of probation, and the defendant shall remain under the jurisdiction of the sentencing court.
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(b) The court may not place a mentally ill offender who has been convicted of a capital
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offense on probation.
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(2) The period of probation may be for no less than five years, or until the expiration of
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the defendant's sentence, whichever occurs first. Probation may not be subsequently reduced by
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the sentencing court without consideration of an updated report on the mental health status of the
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defendant.
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(3) (a) Treatment ordered by the court under this section may be provided by or under
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contract with the department, a mental health facility, a local mental health authority, or, with the
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approval of the sentencing court, any other public or private mental health provider.
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(b) The entity providing treatment under this section shall file a report with the defendant's
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probation officer at least every six months during the term of probation.
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(c) Any request for termination of probation regarding a defendant who is receiving
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treatment under this section shall include a current mental health report prepared by the treatment
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provider.
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(4) Failure to continue treatment or any other condition of probation, except by agreement
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with the entity providing treatment and the sentencing court, is a basis for initiating probation
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violation hearings.
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(5) The court may not release a mentally ill offender into the community, as a part of
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probation, if it finds by clear and convincing evidence that he:
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(a) poses [an immediate physical] a substantial danger to himself or others, including
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jeopardizing his own or others' safety, health, or welfare if released into the community; or
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(b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
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shelter, if released into the community.
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(6) A mentally ill offender who is not eligible for release into the community under the
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provisions of Subsection (5) may be placed by the court, on probation, in an appropriate mental
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health facility.
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Section 4. Reporting requirements.
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S [
On or before November 1, 2000 and November 1, 2001, the division and local mental
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health authorities shall cooperatively compile, analyze, and produce reports to the legislative
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interim Health and Human Services Committee that contain the following information relating to
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adults involuntarily civilly committed in this state after July 1, 2000:
] s
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S [
(1) the number of people committed to each local mental health authority in the state;
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(2) the number of people committed pursuant to each individual commitment criterion,
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and each combination or criteria identified in Subsections
62A-12-234
(10)(b)(i), (ii), and (iii);
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(3) the initial placement for each person involuntarily committed, and the duration of that
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placement;
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(4) all subsequent placements for each person involuntarily committed during the period
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of commitment, and the duration of each subsequent placement;
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(5) the total length of each involuntary commitment, including extensions provided for by
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any subsequent orders of commitment; and
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(6) an evaluation of the affect that changes to the civil commitment laws provided for by
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this act have had on persons who are mentally ill and who have been committed to local mental
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health authorities since May 1,
2000, the effective date of this act.]
ON OR BEFORE JULY 1, 2000, THE
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DIVISION OF MENTAL HEALTH SHALL SIGN A MEMORANDUM OF AGREEMENT WITH THE STATE'S
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DESIGNATED PROTECTION AND ADVOCACY AGENCY WHICH SHALL PROVIDE FOR COMPILATION,
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ANALYSIS, AND REPORTING OF INFORMATION RELATING TO ADULTS INVOLUNTARILY CIVILLY
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COMMITTED IN THIS STATE AFTER JULY 1, 2000. THOSE REPORTS SHALL BE DUE TO THE
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PROTECTION AND ADVOCACY AGENCY BY NOVEMBER 1, 2000, NOVEMBER 1, 2001, AND
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NOVEMBER 1, 2002.
s
Legislative Review Note
as of 2-7-00 7:08 AM
This legislation raises the following constitutional or statutory concerns:
Some courts have held that a finding of "immediate" or "imminent" danger to self or others is a
constitutionally necessary prerequisite to involuntary civil commitment of a person. Other courts
have held that the risk of dangerousness must be "relatively immediate", or that the risk of
dangerous conduct be within the "reasonably foreseeable future".
However, there are some states whose civil commitment statutes do not require a finding of an
"immediate" danger to self or others, and this legislation also removes the statutory requirement
for determining that danger to self or others be "immediate".
Because of the legal and constitutional complexities of this issue and varying court opinions, there
is a potential that this legislation could be challenged under the due process guarantees of both the
United States Constitution and the Utah Constitution.