Download Zipped Amended WP 8.0 SB0200.ZIP 16,984 Bytes
[Introduced][Status][Bill Documents][Fiscal Note][Bills Directory]

S.B. 200

             1     

MENTAL HEALTH COMMITMENT AMENDMENTS

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Robert F. Montgomery

             5      AN ACT RELATING TO THE DIVISION OF MENTAL HEALTH, LOCAL MENTAL
             6      HEALTH AUTHORITIES, AND THE CODE OF CRIMINAL PROCEDURE; REMOVING THE
             7      REQUIREMENT OF FINDING THAT A PERSON IS AN "IMMEDIATE" DANGER TO SELF
             8      OR OTHERS FOR CIVIL COMMITMENT AND SPECIFIED CRIMINAL COMMITMENTS;
             9      AND FURTHER AMENDING CRITERIA FOR CIVIL COMMITMENT.
             10      This act affects sections of Utah Code Annotated 1953 as follows:
             11      AMENDS:
             12          62A-12-234, as last amended by Chapter 285, Laws of Utah 1993
             13          77-16a-104, as last amended by Chapter 254, Laws of Utah 1995
             14          77-16a-201, as enacted by Chapter 171, Laws of Utah 1992
             15      This act enacts uncodified material.
             16      Be it enacted by the Legislature of the state of Utah:
             17          Section 1. Section 62A-12-234 is amended to read:
             18           62A-12-234. Involuntary commitment under court order -- Examination -- Hearing
             19      -- Power of court -- Findings required -- Costs.
             20          (1) Proceedings for involuntary commitment of an individual who is 18 years of age or
             21      older may be commenced by filing a written application with the district court of the county in
             22      which the proposed patient resides or is found, by a responsible person who has reason to know
             23      of the condition or circumstances of the proposed patient which lead to the belief that the
             24      individual is mentally ill and should be involuntarily committed. That application shall be
             25      accompanied by:
             26          (a) a certificate of a licensed physician or a designated examiner stating that within a
             27      seven-day period immediately preceding the certification the physician or designated examiner has


             28      examined the individual, and that he is of the opinion that the individual is mentally ill and should
             29      be involuntarily committed; or
             30          (b) a written statement by the applicant that the individual has been requested to but has
             31      refused to submit to an examination of mental condition by a licensed physician or designated
             32      examiner. That application shall be sworn to under oath and shall state the facts upon which the
             33      application is based.
             34          (2) Prior to issuing a judicial order, the court may require the applicant to consult with the
             35      appropriate local mental health authority, or may direct a mental health professional from that local
             36      mental health authority to interview the applicant and the proposed patient to determine the
             37      existing facts and report them to the court.
             38          (3) If the court finds from the application, from any other statements under oath, or from
             39      any reports from a mental health professional that there is a reasonable basis to believe that the
             40      proposed patient's mental condition and [immediate] S SUBSTANTIAL s danger to himself, others,
             40a      or property requires
             41      involuntary commitment pending examination and hearing; or, if the proposed patient has refused
             42      to submit to an interview with a mental health professional as directed by the court or to go to a
             43      treatment facility voluntarily, the court may issue an order, directed to a mental health officer or
             44      peace officer, to immediately place the proposed patient in the custody of a local mental health
             45      authority or in a temporary emergency facility as provided in Section 62A-12-237 to be detained
             46      for the purpose of examination. Within 24 hours of the issuance of the order for examination, a
             47      local mental health authority or its designee shall report to the court, orally or in writing, whether
             48      the patient is, in the opinion of the examiners, mentally ill, whether the patient has agreed to
             49      become a voluntary patient under Section 62A-12-228 , and whether treatment programs are
             50      available and acceptable without court proceedings. Based on that information, the court may,
             51      without taking any further action, terminate the proceedings and dismiss the application. In any
             52      event, if the examiner reports orally, he shall immediately send the report in writing to the clerk
             53      of the court.
             54          (4) Notice of commencement of proceedings for involuntary commitment, setting forth
             55      the allegations of the application and any reported facts, together with a copy of any official order
             56      of detention, shall be provided by the court to a proposed patient prior to, or upon, placement in
             57      the custody of a local mental health authority or, with respect to any individual presently in the
             58      custody of a local mental health authority whose status is being changed from voluntary to


             59      involuntary, upon the filing of an application for that purpose with the court. A copy of that order
             60      of detention shall be maintained at the place of detention.
             61          (5) Notice of commencement of those proceedings shall be provided by the court as soon
             62      as practicable to the applicant, any legal guardian, any immediate adult family members, legal
             63      counsel for the parties involved, and any other persons whom the proposed patient or the court
             64      shall designate. That notice shall advise those persons that a hearing may be held within the time
             65      provided by law. If the patient has refused to permit release of information necessary for
             66      provisions of notice under this subsection, the extent of notice shall be determined by the court.
             67          (6) Proceedings for commitment of an individual under the age of 18 years to the division
             68      may be commenced by filing a written application with the juvenile court in accordance with the
             69      provisions of Part 2A.
             70          (7) The district court may, in its discretion, transfer the case to any other district court
             71      within this state, provided that the transfer will not be adverse to the interest of the proposed
             72      patient.
             73          (8) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance
             74      of a judicial order, or after commitment of a proposed patient to a local mental health authority
             75      under court order for detention or examination, the court shall appoint two designated examiners
             76      to examine the proposed patient. If requested by the proposed patient's counsel, the court shall
             77      appoint, as one of the examiners, a reasonably available qualified person designated by counsel.
             78      The examinations, to be conducted separately, shall be held at the home of the proposed patient,
             79      a hospital or other medical facility, or at any other suitable place that is not likely to have a harmful
             80      effect on the patient's health.
             81          (b) A time shall be set for a hearing to be held within ten court days of the appointment
             82      of the designated examiners, unless those examiners or a local mental health authority or its
             83      designee informs the court prior to that hearing date that the patient is not mentally ill, that he has
             84      agreed to become a voluntary patient under Section 62A-12-228 , or that treatment programs are
             85      available and acceptable without court proceedings, in which event the court may, without taking
             86      any further action, terminate the proceedings and dismiss the application.
             87          (9) (a) Prior to the hearing, an opportunity to be represented by counsel shall be afforded
             88      to every proposed patient, and if neither the patient nor others provide counsel, the court shall
             89      appoint counsel and allow him sufficient time to consult with the patient prior to the hearing. In


             90      the case of an indigent patient, the payment of reasonable attorneys' fees for counsel, as determined
             91      by the court, shall be made by the county in which the patient resides or was found.
             92          (b) The proposed patient, the applicant, and all other persons to whom notice is required
             93      to be given shall be afforded an opportunity to appear at the hearing, to testify, and to present and
             94      cross-examine witnesses. The court may, in its discretion, receive the testimony of any other
             95      person. The court may allow a waiver of the patient's right to appear only for good cause shown,
             96      and that cause shall be made a matter of court record.
             97          (c) The court is authorized to exclude all persons not necessary for the conduct of the
             98      proceedings and may, upon motion of counsel, require the testimony of each examiner to be given
             99      out of the presence of any other examiners.
             100          (d) The hearing shall be conducted in as informal a manner as may be consistent with
             101      orderly procedure, and in a physical setting that is not likely to have a harmful effect on the mental
             102      health of the proposed patient.
             103          (e) The court shall receive all relevant and material evidence which is offered, subject to
             104      the rules of evidence.
             105          (f) A local mental health authority or its designee, or the physician in charge of the
             106      patient's care shall, at the time of the hearing, provide the court with the following information:
             107          (i) the detention order;
             108          (ii) admission notes;
             109          (iii) the diagnosis;
             110          (iv) any doctors' orders;
             111          (v) progress notes;
             112          (vi) nursing notes; and
             113          (vii) medication records pertaining to the current commitment.
             114          That information shall also be supplied to the patient's counsel at the time of the hearing,
             115      and at any time prior to the hearing upon request.
             116          (10) The court shall order commitment of an individual who is 18 years of age or older to
             117      a local mental health authority if, upon completion of the hearing and consideration of the record,
             118      the court finds by clear and convincing evidence that:
             119          (a) the proposed patient has a mental illness; S AND s
             120          (b) because of the proposed patient's mental illness he poses [an immediate] a substantial


             121      danger [of physical injury to others or] to himself or others, which may include:
             122          (i) the inability to provide the basic necessities of life such as food, clothing, and shelter
             122a      S ,TO A DEGREE THAT SIGNIFICANTLY AFFECTS HEALTH OR SAFETY [ [ ] ,
             123      if allowed to remain at liberty [ ] ] s ;
             124          (ii) violent, threatening, or other endangering behavior which occurs as a result of the
             125      person's mental illness; or
             126          (iii) a currently relevant historical pattern indicating that without treatment the person will
             127      suffer severe and abnormal mental or emotional distress, and will experience deterioration of his
             128      ability to function in the least restrictive environment, thereby creating a substantial danger to
             129      himself or others; S AND s
             130          (c) the patient lacks the ability to engage in a rational decision-making process regarding
             131      the acceptance of mental treatment as demonstrated by evidence of inability to weigh the possible
             132      costs and benefits of treatment; S AND s
             133          (d) there is no appropriate less-restrictive alternative to a court order of commitment; and
             134          (e) the local mental health authority can provide the individual with treatment that is
             135      adequate and appropriate to his conditions and needs. In the absence of the required findings of
             136      the court after the hearing, the court shall forthwith dismiss the proceedings.
             137          (11) (a) The order of commitment shall designate the period for which the individual shall
             138      be treated. When the individual is not under an order of commitment at the time of the hearing,
             139      that period may not exceed six months without benefit of a review hearing. Upon such a review
             140      hearing, to be commenced prior to the expiration of the previous order, an order for commitment
             141      may be for an indeterminate period, if the court finds by clear and convincing evidence that the
             142      required conditions in Subsection (10) will last for an indeterminate period.
             143          (b) The court shall maintain a current list of all patients under its order of commitment.
             144      That list shall be reviewed to determine those patients who have been under an order of
             145      commitment for the designated period. At least two weeks prior to the expiration of the designated
             146      period of any order of commitment still in effect, the court that entered the original order shall
             147      inform the appropriate local mental health authority or its designee. The local mental health
             148      authority or its designee shall immediately reexamine the reasons upon which the order of
             149      commitment was based. If the local mental health authority or its designee determines that the
             150      conditions justifying that commitment no longer exist, it shall discharge the patient from
             151      involuntary commitment and immediately report that to the court. Otherwise, the court shall


             152      immediately appoint two designated examiners and proceed under Subsections (8) through (10).
             153          (c) The local mental health authority or its designee responsible for the care of a patient
             154      under an order of commitment for an indeterminate period, shall at six-month intervals reexamine
             155      the reasons upon which the order of indeterminate commitment was based. If the local mental
             156      health authority or its designee determines that the conditions justifying that commitment no longer
             157      exist, that local mental health authority or its designee shall discharge the patient from its custody
             158      and immediately report the discharge to the court. If the local mental health authority or its
             159      designee determines that the conditions justifying that commitment continue to exist, the local
             160      mental health authority or its designee shall send a written report of those findings to the court.
             161      The patient and his counsel of record shall be notified in writing that the involuntary commitment
             162      will be continued, the reasons for that decision, and that the patient has the right to a review
             163      hearing by making a request to the court. Upon receiving the request, the court shall immediately
             164      appoint two designated examiners and proceed under Subsections (8) through (10).
             165          (12) In the event that the designated examiners are unable, because a proposed patient
             166      refuses to submit to an examination, to complete that examination on the first attempt, the court
             167      shall fix a reasonable compensation to be paid to those designated examiners for their services.
             168          (13) Any person committed as a result of an original hearing or a person's legally
             169      designated representative who is aggrieved by the findings, conclusions, and order of the court
             170      entered in the original hearing has the right to a new hearing upon a petition filed with the court
             171      within 30 days of the entry of the court order. The petition must allege error or mistake in the
             172      findings, in which case the court shall appoint three impartial designated examiners previously
             173      unrelated to the case to conduct an additional examination of the patient. The new hearing shall,
             174      in all other respects, be conducted in the manner otherwise permitted.
             175          (14) Costs of all proceedings under this section shall be paid by the county in which the
             176      proposed patient resides or is found.
             177          Section 2. Section 77-16a-104 is amended to read:
             178           77-16a-104. Verdict of guilty and mentally ill -- Hearing to determine present mental
             179      state.
             180          (1) Upon a verdict of guilty and mentally ill for the offense charged, or any lesser offense,
             181      the court shall conduct a hearing to determine the defendant's present mental state.
             182          (2) The court may order the department to examine the defendant to determine his mental


             183      condition, and may receive the evidence of any public or private expert witness offered by the
             184      defendant or the prosecutor. The defendant may be placed in the Utah State Hospital for that
             185      examination only upon approval of the executive director.
             186          (3) If the court finds by clear and convincing evidence that the defendant is currently
             187      mentally ill, it shall impose any sentence that could be imposed under law upon a defendant who
             188      is not mentally ill and who is convicted of the same offense, and:
             189          (a) commit him to the department, in accordance with the provisions of Section
             190      77-16a-202 , if it finds by clear and convincing evidence that:
             191          (i) because of his mental illness the defendant poses [an immediate physical] a substantial
             192      danger to self or others, including jeopardizing his own or others' safety, health, or welfare if
             193      placed in a correctional or probation setting, or lacks the ability to provide the basic necessities of
             194      life, such as food, clothing, and shelter, if placed on probation; and
             195          (ii) the department is able to provide the defendant with treatment, care, custody, and
             196      security that is adequate and appropriate to the defendant's conditions and needs. In order to insure
             197      that the requirements of this subsection are met, the court shall notify the executive director of the
             198      proposed placement and provide the department with an opportunity to evaluate the defendant and
             199      make a recommendation to the court regarding placement prior to commitment;
             200          (b) order probation in accordance with Section 77-16a-201 ; or
             201          (c) if the requirements of Subsections (3)(a) and (b) are not met, place the defendant in the
             202      custody of UDC.
             203          (4) If the court finds that the defendant is not currently mentally ill, it shall sentence the
             204      defendant as it would any other defendant.
             205          (5) Expenses for examinations ordered under this section shall be paid in accordance with
             206      Subsection 77-16a-103 (5).
             207          Section 3. Section 77-16a-201 is amended to read:
             208           77-16a-201. Probation.
             209          (1) (a) When the court proposes to place on probation a defendant who has pled or is found
             210      guilty and mentally ill, it shall request UDC to provide a presentence investigation report regarding
             211      whether probation is appropriate for that defendant and, if so, recommending a specific treatment
             212      program. If the defendant is placed on probation, that treatment program shall be made a condition
             213      of probation, and the defendant shall remain under the jurisdiction of the sentencing court.


             214          (b) The court may not place a mentally ill offender who has been convicted of a capital
             215      offense on probation.
             216          (2) The period of probation may be for no less than five years, or until the expiration of
             217      the defendant's sentence, whichever occurs first. Probation may not be subsequently reduced by
             218      the sentencing court without consideration of an updated report on the mental health status of the
             219      defendant.
             220          (3) (a) Treatment ordered by the court under this section may be provided by or under
             221      contract with the department, a mental health facility, a local mental health authority, or, with the
             222      approval of the sentencing court, any other public or private mental health provider.
             223          (b) The entity providing treatment under this section shall file a report with the defendant's
             224      probation officer at least every six months during the term of probation.
             225          (c) Any request for termination of probation regarding a defendant who is receiving
             226      treatment under this section shall include a current mental health report prepared by the treatment
             227      provider.
             228          (4) Failure to continue treatment or any other condition of probation, except by agreement
             229      with the entity providing treatment and the sentencing court, is a basis for initiating probation
             230      violation hearings.
             231          (5) The court may not release a mentally ill offender into the community, as a part of
             232      probation, if it finds by clear and convincing evidence that he:
             233          (a) poses [an immediate physical] a substantial danger to himself or others, including
             234      jeopardizing his own or others' safety, health, or welfare if released into the community; or
             235          (b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
             236      shelter, if released into the community.
             237          (6) A mentally ill offender who is not eligible for release into the community under the
             238      provisions of Subsection (5) may be placed by the court, on probation, in an appropriate mental
             239      health facility.
             240          Section 4. Reporting requirements.
             241           S [ On or before November 1, 2000 and November 1, 2001, the division and local mental
             242      health authorities shall cooperatively compile, analyze, and produce reports to the legislative
             243      interim Health and Human Services Committee that contain the following information relating to
             244      adults involuntarily civilly committed in this state after July 1, 2000:
] s


             245           S [ (1) the number of people committed to each local mental health authority in the state;
             246          (2) the number of people committed pursuant to each individual commitment criterion,
             247      and each combination or criteria identified in Subsections 62A-12-234 (10)(b)(i), (ii), and (iii);
             248          (3) the initial placement for each person involuntarily committed, and the duration of that
             249      placement;
             250          (4) all subsequent placements for each person involuntarily committed during the period
             251      of commitment, and the duration of each subsequent placement;
             252          (5) the total length of each involuntary commitment, including extensions provided for by
             253      any subsequent orders of commitment; and
             254          (6) an evaluation of the affect that changes to the civil commitment laws provided for by
             255      this act have had on persons who are mentally ill and who have been committed to local mental
             256      health authorities since May 1, 2000, the effective date of this act.
] ON OR BEFORE JULY 1, 2000, THE

             256a      DIVISION OF MENTAL HEALTH SHALL SIGN A MEMORANDUM OF AGREEMENT WITH THE STATE'S
             256b      DESIGNATED PROTECTION AND ADVOCACY AGENCY WHICH SHALL PROVIDE FOR COMPILATION,
             256c      ANALYSIS, AND REPORTING OF INFORMATION RELATING TO ADULTS INVOLUNTARILY CIVILLY
             256d      COMMITTED IN THIS STATE AFTER JULY 1, 2000. THOSE REPORTS SHALL BE DUE TO THE
             256e      PROTECTION AND ADVOCACY AGENCY BY NOVEMBER 1, 2000, NOVEMBER 1, 2001, AND
             256f      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.

Office of Legislative Research and General Counsel


[Bill Documents][Bills Directory]