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Third Substitute S.B. 27
Senator Leonard M. Blackham proposes the following substitute bill:
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SUSAN GALL INVOLUNTARY
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COMMITMENT AMENDMENTS
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2003 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Leonard M. Blackham
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Karen HaleLyle W. HillyardDavid L. Gladwell
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This act, in memory of Susan Jenkins Gall, modifies the process by which adults are
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involuntarily committed to mental health programs. It eliminates the "immediate
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danger" standard and provides for a "substantial danger" standard for the purposes of
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involuntary commitment, defines substantial danger, shortens the time period before a
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hearing when a person is being detained pending a hearing, and requires a report to the
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Health and Human Services Interim Committee. It also requires examiners to inform
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patients of specific rights.
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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-15-103, as renumbered and amended by Chapter 8, Laws of Utah 2002, Fifth
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Special Session
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62A-15-602, as renumbered and amended by Chapter 8, Laws of Utah 2002, Fifth
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Special Session
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62A-15-631, as renumbered and amended by Chapter 8, Laws of Utah 2002, Fifth
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Special Session
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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-15-103
is amended to read:
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62A-15-103. Division -- Creation -- Responsibilities.
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(1) There is created the Division of Substance Abuse and Mental Health within the
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department, under the administration and general supervision of the executive director, and,
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with regard to its programs, under the policy direction of the board. The division is the
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substance abuse authority and the mental health authority for this state.
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(2) The division shall:
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(a) (i) educate the general public regarding the nature and consequences of substance
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abuse by promoting school and community-based prevention programs;
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(ii) render support and assistance to public schools through approved school-based
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substance abuse education programs aimed at prevention of substance abuse;
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(iii) promote or establish programs for the prevention of substance abuse within the
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community setting through community-based prevention programs;
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(iv) cooperate and assist other organizations and private treatment centers for substance
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abusers, by providing them with essential materials for furthering programs of prevention and
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rehabilitation of actual and potential substance abusers; and
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(v) promote or establish programs for education and certification of instructors to
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educate persons convicted of driving under the influence of alcohol or drugs or driving with
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any measurable controlled substance in the body;
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(b) (i) collect and disseminate information pertaining to mental health; and
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(ii) provide direction over the state hospital including approval of its budget,
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administrative policy, and coordination of services with local service plans; [and]
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(iii) promulgate rules in accordance with the Title 63, Chapter 46a, Utah
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Administrative Rulemaking Act, to educate families concerning mental illness and promote
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family involvement, when appropriate, and with patient consent, in the treatment program of a
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family member; and
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(iv) promulgate rules in accordance with the Title 63, Chapter 46a, Utah
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Administrative Rulemaking Act, to direct that all individuals receiving services through local
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mental health authorities or the Utah State Hospital be informed about and, if desired, provided
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assistance in completion of a declaration for mental health treatment in accordance with
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Section
62A-15-1002
; and
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(c) (i) consult and coordinate with local substance abuse authorities and local mental
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health authorities regarding programs and services;
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(ii) provide consultation and other assistance to public and private agencies and groups
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working on substance abuse and mental health issues;
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(iii) promote and establish cooperative relationships with courts, hospitals, clinics,
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medical and social agencies, public health authorities, law enforcement agencies, education and
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research organizations, and other related groups;
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(iv) promote or conduct research on substance abuse and mental health issues, and
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submit to the governor and the Legislature recommendations for changes in policy and
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legislation;
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(v) receive, distribute, and provide direction over public funds for substance abuse and
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mental health services;
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(vi) monitor and evaluate programs provided by local substance abuse authorities and
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local mental health authorities;
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(vii) examine expenditures of any local, state, and federal funds;
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(viii) monitor the expenditure of public funds by:
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(A) local substance abuse authorities;
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(B) local mental health authorities; and
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(C) in counties where they exist, the private contract provider that has an annual or
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otherwise ongoing contract to provide comprehensive substance abuse or mental health
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programs or services for the local substance abuse authority or local mental health authorities;
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(ix) contract with local substance abuse authorities and local mental health authorities
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to provide a comprehensive continuum of services in accordance with board and division
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policy, contract provisions, and the local plan;
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(x) contract with private and public entities for special statewide or nonclinical services
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according to board and division policy;
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(xi) review and approve each local substance abuse authority's plan and each local
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mental health authority's plan in order to ensure:
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(A) a statewide comprehensive continuum of substance abuse services;
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(B) a statewide comprehensive continuum of mental health services; and
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(C) appropriate expenditure of public funds;
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(xii) review and make recommendations regarding each local substance abuse
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authority's contract with its provider of substance abuse programs and services and each local
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mental health authority's contract with its provider of mental health programs and services to
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ensure compliance with state and federal law and policy;
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(xiii) monitor and ensure compliance with board and division policy and contract
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requirements; and
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(xiv) withhold funds from local substance abuse authorities, local mental health
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authorities, and public and private providers for contract noncompliance, failure to comply
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with division directives regarding the use of public funds, or for misuse of public funds or
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monies.
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(3) (a) The division may refuse to contract with and may pursue its legal remedies
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against any local substance abuse authority or local mental health authority that fails, or has
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failed, to expend public funds in accordance with state law, division policy, contract
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provisions, or directives issued in accordance with state law.
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(b) The division may withhold funds from a local substance abuse authority or local
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mental health authority if the authority's contract with its provider of substance abuse or mental
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health programs or services fails to comply with state and federal law or policy.
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(4) Before reissuing or renewing a contract with any local substance abuse authority or
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local mental health authority, the division shall review and determine whether the local
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substance abuse authority or local mental health authority is complying with its oversight and
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management responsibilities described in Sections
17A-3-601
,
17A-3-603.5
,
17A-3-701
and
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17A-3-703
. Nothing in this Subsection (4) may be used as a defense to the responsibility and
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liability described in Section
17A-3-603.5
and to the responsibility and liability described in
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Section
17A-3-703
.
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(5) In carrying out its duties and responsibilities, the division may not duplicate
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treatment or educational facilities that exist in other divisions or departments of the state, but
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shall work in conjunction with those divisions and departments in rendering the treatment or
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educational services that those divisions and departments are competent and able to provide.
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(6) (a) The division may accept in the name of and on behalf of the state donations,
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gifts, devises, or bequests of real or personal property or services to be used as specified by the
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donor.
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(b) Those donations, gifts, devises, or bequests shall be used by the division in
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performing its powers and duties. Any money so obtained shall be considered private
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nonlapsing funds and shall be deposited into an interest-bearing restricted special revenue fund
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to be used by the division for substance abuse or mental health services. The state treasurer
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may invest the fund and all interest shall remain with the fund.
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(7) The division shall annually review with each local substance abuse authority and
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each local mental health authority the authority's statutory and contract responsibilities
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regarding:
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(a) the use of public funds;
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(b) oversight responsibilities regarding public funds; and
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(c) governance of substance abuse and mental health programs and services.
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Section 2.
Section
62A-15-602
is amended to read:
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62A-15-602. Definitions.
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As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
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Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah
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Forensic Mental Health Facility, and Part 10, Declaration for Mental Health Treatment:
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(1) "Adult" means a person 18 years of age or older.
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(2) "Commitment to the custody of a local mental health authority" means that an adult
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is committed to the custody of the local mental health authority that governs the mental health
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catchment area in which the proposed patient resides or is found.
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(3) "Designated examiner" means a licensed physician familiar with severe mental
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illness, preferably a psychiatrist, designated by the division as specially qualified by training or
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experience in the diagnosis of mental or related illness or another licensed mental health
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professional designated by the division as specially qualified by training and at least five years'
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continual experience in the treatment of mental or related illness. At least one designated
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examiner in any case shall be a licensed physician. No person who is the applicant, or who
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signs the certification, under Section
62A-15-631
may be a designated examiner in the same
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case.
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(4) "Designee" means a physician who has responsibility for medical functions
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including admission and discharge, an employee of a local mental health authority, or an
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employee of an agency that has contracted with a local mental health authority to provide
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mental health services under Section
17A-3-606
.
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(5) "Institution" means a hospital, or a health facility licensed under the provisions of
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Section
26-21-9
.
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(6) "Licensed physician" means an individual licensed under the laws of this state to
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practice medicine, or a medical officer of the United States government while in this state in
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the performance of official duties.
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(7) "Local comprehensive community mental health center" means an agency or
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organization that provides treatment and services to residents of a designated geographic area,
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operated by or under contract with a local mental health authority, in compliance with state
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standards for local comprehensive community mental health centers.
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(8) "Mental illness" means a psychiatric disorder as defined by the current edition of
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the Diagnostic and Statistical Manual of Mental Disorders published by the American
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Psychiatric Association which substantially impairs a person's mental, emotional, behavioral,
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or related functioning.
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(9) "Mental health facility" means the Utah State Hospital or other facility that
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provides mental health services under contract with the division, a local mental health
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authority, or organization that contracts with a local mental health authority.
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(10) "Mental health officer" means an individual who is designated by a local mental
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health authority as qualified by training and experience in the recognition and identification of
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mental illness, to interact with and transport persons to any mental health facility.
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(11) "Patient" means an individual [who has been temporarily placed in] under
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commitment to the custody or to the treatment services of a local mental health authority[, or
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who has been committed to a local mental health authority either voluntarily or by court order].
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(12) "Serious bodily injury" means bodily injury which involves a substantial risk of
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death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
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protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
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(13) "Substantial danger" means the person, by his or her behavior, due to mental
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illness:
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(a) is at serious risk to:
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(i) commit suicide,
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(ii) inflict serious bodily injury on himself or herself; or
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(iii) because of his or her actions or inaction, suffer serious bodily injury because he or
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she is incapable of providing the basic necessities of life, such as food, clothing, and shelter;
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(b) is at serious risk to cause or attempt to cause serious bodily injury; or
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(c) has inflicted or attempted to inflict serious bodily injury on another.
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[(12)] (14) "Treatment" means psychotherapy, medication, including the administration
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of psychotropic medication, and other medical treatments that are generally accepted medical
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and psychosocial interventions for the purpose of restoring the patient to an optimal level of
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functioning in the least restrictive environment.
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Section 3.
Section
62A-15-631
is amended to read:
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62A-15-631. Involuntary commitment under court order -- Examination --
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Hearing -- 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
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has examined the individual, and that he is of the opinion that the individual is mentally ill and
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should be involuntarily committed; or
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(b) a written statement by the applicant that the individual has been requested to but
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has refused to submit to an examination of mental condition by a licensed physician or
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designated examiner. That application shall be sworn to under oath and shall state the facts
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upon which the application is based.
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(2) Prior to issuing a judicial order, the court may require the applicant to consult with
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the appropriate local mental health authority, or may direct a mental health professional from
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that local mental health authority to interview the applicant and the proposed patient to
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determine the 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
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from any reports from a mental health professional that there is a reasonable basis to believe
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that the proposed [patient's mental condition and immediate] patient has a mental illness which
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poses a substantial danger, as defined in Section
62A-15-602
, to himself, others, or property
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[requires] requiring involuntary commitment pending examination and hearing; or, if the
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proposed patient has refused to submit to an interview with a mental health professional as
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directed by the court or to go to a treatment facility voluntarily, the court may issue an order,
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directed to a mental health officer or peace officer, to immediately place the proposed patient in
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the custody of a local mental health authority or in a temporary emergency facility as provided
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in Section
62A-15-634
to be detained for the purpose of examination. Within 24 hours of the
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issuance of the order for examination, a local mental health authority or its designee shall
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report to the court, orally or in writing, whether the patient is, in the opinion of the examiners,
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mentally ill, whether the patient has agreed to become a voluntary patient under Section
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62A-15-625
, and whether treatment programs are available and acceptable without court
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proceedings. Based on that information, the court may, without taking any further action,
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terminate the proceedings and dismiss the application. In any event, if the examiner reports
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orally, he shall immediately send the report in writing to the clerk 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
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order of detention, shall be provided by the court to a proposed patient prior to, or upon,
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placement in the custody of a local mental health authority or, with respect to any individual
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presently in the custody of a local mental health authority whose status is being changed from
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voluntary to involuntary, upon the filing of an application for that purpose with the court. A
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copy of that order 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
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soon as practicable to the applicant, any legal guardian, any immediate adult family members,
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legal counsel for the parties involved, and any other persons whom the proposed patient or the
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court shall designate. That notice shall advise those persons that a hearing may be held within
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the time provided by law. If the patient has refused to permit release of information necessary
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for provisions of notice under this subsection, the extent of notice shall be determined by the
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court.
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(6) Proceedings for commitment of an individual under the age of 18 years to the
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division may be commenced by filing a written application with the juvenile court in
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accordance with the provisions of Part 7.
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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
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issuance of a judicial order, or after commitment of a proposed patient to a local mental health
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authority under court order for detention or examination, the court shall appoint two designated
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examiners to examine the proposed patient. If requested by the proposed patient's counsel, the
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court shall appoint, as one of the examiners, a reasonably available qualified person designated
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by counsel. The examinations, to be conducted separately, shall be held at the home of the
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proposed patient, a hospital or other medical facility, or at any other suitable place that is not
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likely to have a harmful effect on the patient's health.
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(b) The examiner shall inform the patient if not represented by an attorney that, if
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desired, the patient does not have to say anything, the nature and reasons for the examination,
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that it was ordered by the court, that any information volunteered could form part of the basis
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for his or her involuntary commitment, and that findings resulting from the examination will be
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made available to the court.
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[(b)] (c) A time shall be set for a hearing to be held within ten [court] calendar days of
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the appointment of the designated examiners, unless those examiners or a local mental health
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authority or its designee informs the court prior to that hearing date that the patient is not
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mentally ill, that he has agreed to become a voluntary patient under Section
62A-15-625
, or
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that treatment programs are available and acceptable without court proceedings, in which event
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the court may, without taking any further action, terminate the proceedings and dismiss the
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application.
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(9) (a) Prior to the hearing, an opportunity to be represented by counsel shall be
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afforded to every proposed patient, and if neither the patient nor others provide counsel, the
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court shall appoint counsel and allow him sufficient time to consult with the patient prior to the
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hearing. In the case of an indigent patient, the payment of reasonable attorneys' fees for
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counsel, as determined by the court, shall be made by the county in which the patient resides or
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was found.
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(b) The proposed patient, the applicant, and all other persons to whom notice is
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required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to
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present and cross-examine witnesses. The court may, in its discretion, receive the testimony of
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any other person. The court may allow a waiver of the patient's right to appear only for good
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cause shown, 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
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given 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
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mental health of the proposed patient.
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(e) The court shall [receive] consider all relevant historical and material [evidence]
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information which is offered, subject to the rules of evidence, including reliable hearsay under
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Rule 1102, Utah Rules of Evidence.
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(f) (i) 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)] (A) the detention order;
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[(ii)] (B) admission notes;
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[(iii)] (C) the diagnosis;
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[(iv)] (D) any doctors' orders;
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[(v)] (E) progress notes;
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[(vi)] (F) nursing notes; and
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[(vii)] (G) medication records pertaining to the current commitment.
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(ii) That information shall also be supplied to the patient's counsel at the time of the
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hearing, 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
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to a local mental health authority if, upon completion of the hearing and consideration of the
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[record] information presented in accordance with Subsection (9)(e), the court finds by clear
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and convincing evidence that:
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(a) the proposed patient has a mental illness;
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(b) because of the proposed patient's mental illness he poses [an immediate] a
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substantial danger, as defined in Section
62A-15-602
, of physical injury to others or himself,
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which may include the inability to provide the basic necessities of life such as food, clothing,
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and shelter, if allowed to remain at liberty;
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(c) the patient lacks the ability to engage in a rational decision-making process
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regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh
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the possible [costs and benefits of] risks of accepting or rejecting treatment;
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(d) there is no appropriate less-restrictive alternative to a court order of commitment;
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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
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shall be treated. When the individual is not under an order of commitment at the time of the
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hearing, that period may not exceed six months without benefit of a review hearing. Upon
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such a review hearing, to be commenced prior to the expiration of the previous order, an order
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for commitment may be for an indeterminate period, if the court finds by clear and convincing
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evidence that the 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
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designated period of any order of commitment still in effect, the court that entered the original
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order shall inform the appropriate local mental health authority or its designee. The local
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mental health authority or its designee shall immediately reexamine the reasons upon which the
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order of commitment was based. If the local mental health authority or its designee determines
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that the conditions justifying that commitment no longer exist, it shall discharge the patient
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from involuntary commitment and immediately report that to the court. Otherwise, the court
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shall immediately appoint two designated examiners and proceed under Subsections (8)
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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
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reexamine the reasons upon which the order of indeterminate commitment was based. If the
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local mental health authority or its designee determines that the conditions justifying that
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commitment no longer exist, that local mental health authority or its designee shall discharge
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the patient from its custody and immediately report the discharge to the court. If the local
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mental health authority or its designee determines that the conditions justifying that
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commitment continue to exist, the local mental health authority or its designee shall send a
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written report of those findings to the court. The patient and his counsel of record shall be
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notified in writing that the involuntary commitment will be continued, the reasons for that
340
decision, and that the patient has the right to a review hearing by making a request to the court.
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Upon receiving the request, the court shall immediately appoint two designated examiners and
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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
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court shall fix a reasonable compensation to be paid to those designated examiners for their
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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
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shall, 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 4. Reporting requirements.
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On or before November 1, 2004, the division shall report to the Health and Human
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Services Interim Committee an analysis of mental health commitments using the following
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information:
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(1) the total number of individuals committed under the definitions of mental illness
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and substantial danger;
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(2) the length of time between issuance of an order of detention and commitment
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hearing, and the mental health facility or unit where the individual was placed during this time
364
period;
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(3) the total cost of care given between detention of the individual and formal
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commitment, or until the time the individual hold is dropped;
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(4) for each individual committed, actual placement, including days in inpatient
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settings before a community placement occurred;
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(5) the duration for the commitment, including all recommitments;
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(6) the length of time between termination of the commitment and recommitment, if it
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occurs; and
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(7) the number of people lost to followup and why.
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