First Substitute H.B. 271

Representative Michael E. Noel proposes the following substitute bill:

1 COMMITMENT TO MENTAL HEALTH
2 AUTHORITY
3 2005 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Michael E. Noel
6 Stephen H. Urquhart 7
8 LONG TITLE
9 General Description:
10 This bill amends portions of the Utah Human Services Code related to designated
11 examiners and involuntary commitment hearings.
12 Highlighted Provisions:
13 This bill:
14 . creates and defines the terms:
15 . physician designated examiner; and
16 . mental health professional designated examiner;
17 . provides that, for cases involving the commitment of a person to a mental health
18 authority, the court shall appoint two designated examiners, including at least one
19 physician designated examiner, to conduct an examination of a proposed patient;
20 . provides that if a physician designated examiner is not reasonably available to
21 conduct an examination and appear in court, the court may appoint two mental
22 health professional designated examiners to conduct an examination of a proposed
23 patient; and
24 . makes technical changes.
25 Monies Appropriated in this Bill:

26 None
27 Other Special Clauses:
28 None
29 Utah Code Sections Affected:
30 AMENDS:
31 62A-15-602, as last amended by Chapters 22 and 303, Laws of Utah 2003
32 62A-15-631, as last amended by Chapter 303, Laws of Utah 2003
33 62A-15-703, as last amended by Chapter 171, Laws of Utah 2003
34 62A-15-705, as last amended by Chapter 195, Laws of Utah 2003
35 77-15-5, as last amended by Chapter 82, Laws of Utah 2003
36
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 62A-15-602 is amended to read:
39 62A-15-602. Definitions.
40 As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
41 Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah
42 Forensic Mental Health Facility, and Part 10, Declaration for Mental Health Treatment:
43 (1) "Adult" means a person 18 years of age or older.
44 (2) "Commitment to the custody of a local mental health authority" means that an adult
45 is committed to the custody of the local mental health authority that governs the mental health
46 catchment area in which the proposed patient resides or is found.
47 (3) "Designated examiner" means [a licensed physician familiar with severe mental
48 illness, preferably a psychiatrist, designated by the division as specially qualified by training or
49 experience in the diagnosis of mental or related illness or another licensed mental health
50 professional designated by the division as specially qualified by training and at least five years'
51 continual experience in the treatment of mental or related illness. At least one designated
52 examiner in any case shall be a licensed physician. No person who is the applicant, or who
53 signs the certification, under Section 62A-15-631 may be a designated examiner in the same
54 case.] a:
55 (a) mental health professional designated examiner; or
56 (b) physician designated examiner.

57 (4) "Designee" means:
58 (a) a physician who has responsibility for medical functions including admission and
59 discharge[,];
60 (b) an employee of a local mental health authority[,]; or
61 (c) an employee of an agency that has contracted with a local mental health authority to
62 provide mental health services under Section 17-43-304 .
63 (5) "Institution" means a hospital, or a health facility licensed under the provisions of
64 Section 26-21-9 .
65 (6) "Licensed physician" means:
66 (a) an individual licensed under the laws of this state to practice medicine[,]; or
67 (b) a medical officer of the United States government while in this state in the
68 performance of official duties.
69 (7) "Local comprehensive community mental health center" means an agency or
70 organization that provides treatment and services:
71 (a) to residents of a designated geographic area, operated by or under contract with a
72 local mental health authority[,]; and
73 (b) in compliance with state standards for local comprehensive community mental
74 health centers.
75 [(9)] (8) "Mental health facility" means:
76 (a) the Utah State Hospital [or other];
77 (b) a facility that provides mental health services under contract with the division[,];
78 (c) a local mental health authority[,]; or [organization that contracts]
79 (d) a facility that provides mental health services under contract with a local mental
80 health authority.
81 [(10)] (9) "Mental health officer" means an individual who is designated by a local
82 mental health authority as qualified by training and experience in the recognition and
83 identification of mental illness, to interact with and transport persons to any mental health
84 facility.
85 (10) "Mental health professional designated examiner" means a licensed mental health
86 professional designated by the division as specially qualified by training and at least five years
87 of continual experience in the treatment of mental or related illness.

88 [(8)] (11) "Mental illness" means a psychiatric disorder:
89 (a) as defined by the current edition of the Diagnostic and Statistical Manual of Mental
90 Disorders published by the American Psychiatric Association [which]; and
91 (b) that substantially impairs a person's mental, emotional, behavioral, or related
92 functioning.
93 [(11)] (12) "Patient" means an individual under commitment to the custody or to the
94 treatment services of a local mental health authority.
95 (13) "Physician designated examiner" means a psychiatrist or a licensed physician
96 familiar with severe mental illness, designated by the division as specially qualified by training
97 or experience in the diagnosis of mental or related illness.
98 [(12)] (14) "Serious bodily injury" means bodily injury [which] that involves a
99 substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious
100 disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or
101 mental faculty.
102 [(13)] (15) "Substantial danger" means the person, by his [or her] behavior, due to
103 mental illness:
104 (a) is at serious risk to:
105 (i) commit suicide[,];
106 (ii) inflict serious bodily injury on himself [or herself]; or
107 (iii) because of his [or her actions] action or inaction, suffer serious bodily injury
108 because he [or she] is incapable of providing the basic necessities of life, such as food,
109 clothing, and shelter;
110 (b) is at serious risk to cause or attempt to cause serious bodily injury; or
111 (c) has inflicted or attempted to inflict serious bodily injury on another.
112 [(14)] (16) "Treatment" means:
113 (a) psychotherapy[,];
114 (b) medication, including the administration of psychotropic medication[,]; and
115 (c) other medical treatments that are generally accepted medical and psychosocial
116 interventions for the purpose of restoring the patient to an optimal level of functioning in the
117 least restrictive environment.
118 Section 2. Section 62A-15-631 is amended to read:

119 62A-15-631. Involuntary commitment under court order -- Examination --
120 Hearing -- Power of court -- Findings required -- Costs.
121 (1) (a) Proceedings for involuntary commitment of an individual who is 18 years of age
122 or older may be commenced by filing a written application with the district court of the county
123 in which the proposed patient resides or is found, by a responsible person who has reason to
124 know of the condition or circumstances of the proposed patient [which] that lead to the belief
125 that the individual is mentally ill and should be involuntarily committed. [That application
126 shall]
127 (b) The application described in Subsection (1)(a) shall:
128 (i) be accompanied by:
129 [(a)] (A) a certificate of a licensed physician or a designated examiner stating that:
130 (I) within a seven-day period immediately preceding the certification the physician or
131 designated examiner has examined the individual[,]; and [that he]
132 (II) the licensed physician or designated examiner is of the opinion that the individual
133 is mentally ill and should be involuntarily committed; or
134 [(b)] (B) a written statement by the applicant that the individual has been requested to,
135 but has refused to, submit to an examination of the individual's mental condition by a licensed
136 physician or designated examiner[. That application shall];
137 (ii) be sworn to under oath; and [shall]
138 (iii) state the facts upon which the application is based.
139 (2) Prior to issuing a judicial order, the court may:
140 (a) require the applicant to consult with the appropriate local mental health authority[,];
141 or [may]
142 (b) direct a mental health professional from [that] the appropriate local mental health
143 authority to interview the applicant and the proposed patient to determine the existing facts and
144 report them to the court.
145 (3) [If] (a) The court may issue an order, directed to a mental health officer or peace
146 officer, to immediately place the proposed patient in the custody of a local mental health
147 authority or in a temporary emergency facility as provided in Section 62A-15-634 to be
148 detained for the purpose of examination if:
149 (i) the court finds from the application, from any other statements under oath, or from

150 any reports from a mental health professional that there is a reasonable basis to believe that the
151 proposed patient has a mental illness which poses a substantial danger, as defined in Section
152 62A-15-602 , to himself, others, or property requiring involuntary commitment pending
153 examination and hearing; or[, if]
154 (ii) the proposed patient has refused to submit to an interview with a mental health
155 professional as directed by the court or to go to a treatment facility voluntarily[, the court may
156 issue an order, directed to a mental health officer or peace officer, to immediately place the
157 proposed patient in the custody of a local mental health authority or in a temporary emergency
158 facility as provided in Section 62A-15-634 to be detained for the purpose of examination.
159 Within].
160 (b) Subject to Subsection (3)(d), within 24 hours of the issuance of the order for
161 examination, a local mental health authority or its designee shall report to the court, orally or in
162 writing, whether:
163 (i) the patient is, in the opinion of the examiners, mentally ill[, whether];
164 (ii) the patient has agreed to become a voluntary patient under Section 62A-15-625 [,];
165 and [whether]
166 (iii) treatment programs are available and acceptable without court proceedings.
167 (c) Based on [that] the information described in Subsection (3)(b), the court may,
168 without taking any further action[,]:
169 (i) terminate the proceedings; and
170 (ii) dismiss the application. [In any event, if the examiner reports orally, he]
171 (d) If the report described in Subsection (3)(b) is made orally, the examiner shall
172 immediately send the report in writing to the clerk of the court.
173 (4) (a) Notice of commencement of proceedings for involuntary commitment, setting
174 forth the allegations of the application and any reported facts, together with a copy of any
175 official order of detention, shall be provided by the court to a proposed patient:
176 (i) prior to, or upon, placement of the proposed patient in the custody of a local mental
177 health authority; or[,]
178 (ii) with respect to any individual presently in the custody of a local mental health
179 authority whose status is being changed from voluntary to involuntary, upon the filing of an
180 application for that purpose with the court.

181 (b) A copy of [that] the order of detention described in Subsection (4)(a) shall be
182 maintained at the place of detention.
183 (5) (a) Notice of commencement of [those] the proceedings described in Subsection
184 (4)(a) shall be provided by the court as soon as practicable to:
185 (i) the applicant[,];
186 (ii) any legal guardian[,];
187 (iii) any immediate adult family members[,];
188 (iv) legal counsel for the parties involved[,]; and
189 (v) any other [persons whom] person designated by the proposed patient or the court
190 [shall designate. That].
191 (b) The notice described in Subsection (5)(a) shall [advise those persons] state that a
192 hearing may be held within the time provided by law.
193 (c) If the patient [has refused] refuses to permit release of information necessary [for
194 provisions of notice under this subsection] to provide the notice described in Subsection (5)(a),
195 the extent of notice shall be determined by the court.
196 (6) Proceedings for commitment of an individual under the age of 18 years to the
197 division may be commenced by filing a written application with the juvenile court in
198 accordance with the provisions of Part 7.
199 (7) The district court may, in its discretion, transfer the case to any other district court
200 within this state, provided that the transfer will not be adverse to the interest of the proposed
201 patient.
202 (8) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the
203 issuance of a judicial order, or after commitment of a proposed patient to a local mental health
204 authority under court order for detention or examination, the court shall, subject to Subsection
205 (8)(b), appoint two designated examiners to examine the proposed patient.
206 (b) (i) Except as provided in Subsection (8)(b)(ii), the designated examiners described
207 in Subsection (8)(a) shall include at least one physician designated examiner.
208 (ii) Notwithstanding Subsection (8)(b)(i), the court may appoint two mental health
209 professional designated examiners to examine the proposed patient if the court determines that
210 a physician designated examiner is not reasonably available to conduct an examination or
211 appear in court.

212 (iii) The court may not appoint a person as a designated examiner in a case if that
213 person made:
214 (A) the application described in Subsection (1)(a); or
215 (B) the certification described in Subsection (1)(b)(i)(A).
216 (iv) If requested by the proposed patient's counsel, the court shall appoint, as one of the
217 designated examiners, a reasonably available qualified person designated by counsel.
218 (c) The examinations[, to be] described in Subsection (8)(a) shall be:
219 (i) conducted separately[, shall be]; and
220 (ii) held at:
221 (A) the home of the proposed patient[,];
222 (B) a hospital or other medical facility[,]; or [at]
223 (C) any other suitable place that is not likely to have a harmful effect on the patient's
224 health.
225 [(b) The] (d) If the proposed patient is not represented by an attorney, the examiner
226 shall inform the proposed patient [if not represented by an attorney that, if desired, the patient
227 does not have]:
228 (i) that the proposed patient is not required to say anything[,];
229 (ii) of the nature and reasons for the examination[,];
230 (iii) that [it] the examination was ordered by the court[,];
231 (iv) that any information volunteered could form part of the basis for [his or her] the
232 proposed patient's involuntary commitment[,]; and
233 (v) that findings resulting from the examination will be made available to the court.
234 [(c)] (e) [A time shall be set for] Except as provided in Subsection (8)(f), the court
235 shall schedule a hearing to be held within ten calendar days [of the appointment of the
236 designated examiners, unless those examiners] from the day on which the designated
237 examiners are appointed under Subsection (8)(a).
238 (f) Notwithstanding Subsection (8)(e), the court may, without taking further action,
239 terminate the proceedings and dismiss the application if the designated examiners described in
240 Subsection (8)(a), or a local mental health authority or its designee informs the court [prior to
241 that hearing date that] before the day of the hearing that:
242 (i) the patient is not mentally ill[, that he];

243 (ii) the patient has agreed to become a voluntary patient under Section 62A-15-625 [,];
244 or [that]
245 (iii) treatment programs for the patient are available and acceptable without court
246 proceedings[, in which event the court may, without taking any further action, terminate the
247 proceedings and dismiss the application].
248 (9) (a) [Prior to the hearing] Consistent with Subsection (9)(b), prior to the hearing
249 described in Subsection (8)(e), an opportunity to be represented by counsel shall be afforded to
250 every proposed patient[, and if neither the patient nor others provide counsel].
251 (b) If the proposed patient does not obtain counsel prior to the hearing described in
252 Subsection (8)(e), the court shall:
253 (i) appoint counsel for the proposed patient; and
254 (ii) allow [him] counsel sufficient time to consult with the proposed patient prior to the
255 hearing. [In the case of an indigent patient]
256 (c) If the proposed patient is indigent, the payment of reasonable attorneys' fees for
257 counsel, as determined by the court, shall be made by the county in which the proposed patient
258 resides or was found.
259 [(b)] (d) (i) The proposed patient, the applicant, and all other persons to whom notice is
260 required to be given shall be afforded an opportunity to:
261 (A) appear at the hearing[, to];
262 (B) testify[,] at the hearing; and [to]
263 (C) present and cross-examine witnesses.
264 (ii) The court may[, in its discretion,]:
265 (A) receive the testimony of any other person[. The court may]; and
266 (B) consistent with Subsection (9)(d)(iii), allow a waiver of the patient's right to appear
267 [only for good cause shown, and that cause shall be made a matter of court record.] at the
268 hearing only upon a showing of good cause.
269 [(c) The court is authorized to]
270 (iii) The basis for a showing of good cause under Subsection (9)(d)(ii)(B) shall be
271 placed on the court record.
272 (e) At the hearing described in Subsection (8)(e), the court may:
273 (i) exclude all persons not necessary for the conduct of the proceedings; and [may,]

274 (ii) upon motion of counsel, require the testimony of each designated examiner to be
275 given out of the presence of any other [examiners] designated examiner.
276 [(d)] (f) The hearing described in Subsection (8)(e) shall be conducted:
277 (i) in as informal a manner as may be consistent with orderly procedure[,]; and
278 (ii) in a physical setting that is not likely to have a harmful effect on the mental health
279 of the proposed patient.
280 [(e)] (g) The court shall consider all relevant historical and material information which
281 is offered, subject to the rules of evidence, including reliable hearsay under Rule 1102, Utah
282 Rules of Evidence.
283 [(f)] (h) (i) A local mental health authority or its designee, or the physician in charge of
284 the patient's care shall, at the time of the hearing, provide the court with the following
285 information:
286 (A) the detention order;
287 (B) admission notes;
288 (C) the diagnosis;
289 (D) any doctors' orders;
290 (E) progress notes;
291 (F) nursing notes; and
292 (G) medication records pertaining to the current commitment.
293 (ii) [That information shall also be supplied] The person that provides the information
294 described in Subsection (9)(h)(i) to the court shall give a copy of that information to the
295 patient's counsel at:
296 (A) the time of the hearing[,]; and [at]
297 (B) any time prior to the hearing upon request.
298 (10) (a) The court shall order commitment of an individual who is 18 years of age or
299 older to a local mental health authority if, upon completion of the hearing and consideration of
300 the information presented in accordance with Subsection (9)[(e)](g), the court finds by clear
301 and convincing evidence that:
302 [(a)] (i) the proposed patient has a mental illness;
303 [(b)] (ii) because of the proposed patient's mental illness he poses a substantial danger,
304 as defined in Section 62A-15-602 , of physical injury to others or himself, [which] that may

305 include the inability to provide the basic necessities of life such as food, clothing, and shelter, if
306 allowed to remain at liberty;
307 [(c)] (iii) the patient lacks the ability to engage in a rational decision-making process
308 regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh
309 the possible risks of accepting or rejecting treatment;
310 [(d)] (iv) there is no appropriate less-restrictive alternative to a court order of
311 commitment; and
312 [(e)] (v) the local mental health authority can provide the individual with treatment that
313 is adequate and appropriate to his conditions and needs.
314 (b) In the absence of the required findings [of the court after the hearing] described in
315 Subsection (10)(a), the court shall forthwith dismiss the proceedings.
316 (11) (a) [The] Subject to Subsection (11)(b), the order of commitment shall designate
317 the period for which [the individual] a person shall be treated.
318 (b) When [the individual] a person is not under an order of commitment at the time of
319 the hearing, [that period] the commitment may not exceed six months [without benefit of a
320 review hearing. Upon such], unless a review hearing[, to be] is commenced prior to the
321 expiration of the previous order[,].
322 (c) After the review hearing described in Subsection (11)(b), the court may enter an
323 order for commitment [may be] for an indeterminate period, if the court finds by clear and
324 convincing evidence that the [required] conditions described in Subsection (10)(a) will last for
325 an indeterminate period.
326 [(b)] (12) (a) The court shall:
327 (i) maintain a current list of all patients under [its] an order of commitment[. That list
328 shall be reviewed to determine those] by the court;
329 (ii) review the list described in Subsection (12)(a)(i) to identify the patients who have
330 been under an order of commitment for the designated period[. At least two weeks prior to the
331 expiration of the designated period of any order of commitment still in effect, the court that
332 entered the original order shall inform the appropriate local mental health authority or its
333 designee. The]; and
334 (iii) notify the appropriate local mental health authority or its designee of the expiration
335 of a commitment at least two weeks before the expiration.

336 (b) Upon receiving the notice described in Subsection (12)(a)(iii), the local mental
337 health authority or its designee shall:
338 (i) immediately reexamine the reasons upon which the order of commitment was
339 based[. If]; and
340 (ii) if the local mental health authority or its designee determines that the conditions
341 justifying [that] the commitment no longer exist[, it shall]:
342 (A) discharge the patient from involuntary commitment; and
343 (B) immediately report [that] the discharge to the court. [Otherwise]
344 (c) If the local mental health authority or its designee determines that the conditions
345 justifying the commitment continue to exist, the court shall immediately:
346 (i) appoint two designated examiners; and
347 (ii) proceed under Subsections (8) through (10).
348 [(c)] (d) The local mental health authority or its designee responsible for the care of a
349 patient under an order of commitment for an indeterminate period[,] shall:
350 (i) at six-month intervals reexamine the reasons upon which the order of indeterminate
351 commitment was based[. If]; and
352 (ii) (A) if the local mental health authority or its designee determines that the
353 conditions justifying [that] the commitment no longer exist, [that local mental health authority
354 or its designee shall] discharge the patient from its custody and immediately report the
355 discharge to the court[. If]; or
356 (B) if the local mental health authority or its designee determines that the conditions
357 justifying [that] the commitment continue to exist[, the local mental health authority or its
358 designee shall]:
359 (I) send a written report of [those] the findings upon which the determination is made
360 to the court[. The]; and
361 (II) notify the patient and his counsel of record [shall be notified], in writing:
362 (Aa) that the involuntary commitment will be continued[,];
363 (Bb) of the reasons [for that decision,] that the involuntary commitment will be
364 continued; and
365 (Cc) that the patient has the right to a review hearing by making a request to the court.
366 (e) Upon receiving [the] a request for a review hearing under Subsection

367 (12)(d)(ii)(B)(II)(Cc), the court shall immediately appoint two designated examiners and
368 proceed under Subsections (8) through (10).
369 [(12)] (13) In the event that the designated examiners are unable, because a proposed
370 patient refuses to submit to an examination, to complete that examination on the first attempt,
371 the court shall fix a reasonable compensation to be paid to those designated examiners for their
372 services.
373 [(13)] (14) (a) Any person committed as a result of an original hearing or a person's
374 legally designated representative who is aggrieved by the findings, conclusions, and order of
375 the court entered in the original hearing has the right to a new hearing upon a petition filed with
376 the court within 30 days of the entry of the court order.
377 (b) The petition described in Subsection (14)(a) must allege error or mistake in the
378 findings, in which case the court shall appoint three impartial designated examiners previously
379 unrelated to the case to conduct an additional examination of the patient. [The]
380 (c) Except as provided in Subsection (14)(b), the new hearing shall[, in all other
381 respects,] be conducted in the manner [otherwise permitted] described in this section.
382 [(14)] (15) Costs of all proceedings under this section shall be paid by the county in
383 which the proposed patient resides or is found.
384 Section 3. Section 62A-15-703 is amended to read:
385 62A-15-703. Residential and inpatient settings -- Commitment proceeding --
386 Child in physical custody of local mental health authority.
387 (1) A child may receive services from a local mental health authority in an inpatient or
388 residential setting only after a commitment proceeding, for the purpose of transferring physical
389 custody, has been conducted in accordance with the requirements of this section.
390 (2) That commitment proceeding shall be initiated by a petition for commitment, and
391 shall be a careful, diagnostic inquiry, conducted by a neutral and detached fact finder, pursuant
392 to the procedures and requirements of this section. If the findings described in Subsection (4)
393 exist, the proceeding shall result in the transfer of physical custody to the appropriate local
394 mental health authority, and the child may be placed in an inpatient or residential setting.
395 (3) The neutral and detached fact finder who conducts the inquiry:
396 (a) shall be a designated examiner, as defined in [Subsection] Section
397 62A-15-602 [(3)]; and

398 (b) may not profit, financially or otherwise, from the commitment or physical
399 placement of the child in that setting.
400 (4) Upon determination by the fact finder that the following circumstances clearly
401 exist, he may order that the child be committed to the physical custody of a local mental health
402 authority:
403 (a) the child has a mental illness, as defined in [Subsection] Section 62A-15-602 [(8)];
404 (b) the child demonstrates a risk of harm to himself or others;
405 (c) the child is experiencing significant impairment in his ability to perform socially;
406 (d) the child will benefit from care and treatment by the local mental health authority;
407 and
408 (e) there is no appropriate less-restrictive alternative.
409 (5) (a) The commitment proceeding before the neutral and detached fact finder shall be
410 conducted in as informal manner as possible, and in a physical setting that is not likely to have
411 a harmful effect on the child.
412 (b) The child, the child's parent or legal guardian, the person who submitted the
413 petition for commitment, and a representative of the appropriate local mental health authority
414 shall all receive informal notice of the date and time of the proceeding. Those parties shall also
415 be afforded an opportunity to appear and to address the petition for commitment.
416 (c) The neutral and detached fact finder may, in his discretion, receive the testimony of
417 any other person.
418 (d) The fact finder may allow the child to waive his right to be present at the
419 commitment proceeding, for good cause shown. If that right is waived, the purpose of the
420 waiver shall be made a matter of record at the proceeding.
421 (e) At the time of the commitment proceeding, the appropriate local mental health
422 authority, its designee, or the psychiatrist who has been in charge of the child's care prior to the
423 commitment proceeding, shall provide the neutral and detached fact finder with the following
424 information, as it relates to the period of current admission:
425 (i) the petition for commitment;
426 (ii) the admission notes;
427 (iii) the child's diagnosis;
428 (iv) physicians' orders;

429 (v) progress notes;
430 (vi) nursing notes; and
431 (vii) medication records.
432 (f) The information described in Subsection (5)(e) shall also be provided to the child's
433 parent or legal guardian upon written request.
434 (g) (i) The neutral and detached fact finder's decision of commitment shall state the
435 duration of the commitment. Any commitment to the physical custody of a local mental health
436 authority may not exceed 180 days. Prior to expiration of the commitment, and if further
437 commitment is sought, a hearing shall be conducted in the same manner as the initial
438 commitment proceeding, in accordance with the requirements of this section.
439 (ii) When a decision for commitment is made, the neutral and detached fact finder shall
440 inform the child and his parent or legal guardian of that decision, and of the reasons for
441 ordering commitment at the conclusion of the hearing, and also in writing.
442 (iii) The neutral and detached fact finder shall state in writing the basis of his decision,
443 with specific reference to each of the criteria described in Subsection (4), as a matter of record.
444 (6) Absent the procedures and findings required by this section, a child may be
445 temporarily committed to the physical custody of a local mental health authority only in
446 accordance with the emergency procedures described in Subsection 62A-15-629 (1) or (2). A
447 child temporarily committed in accordance with those emergency procedures may be held for a
448 maximum of 72 hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of
449 that time period, the child shall be released unless the procedures and findings required by this
450 section have been satisfied.
451 (7) A local mental health authority shall have physical custody of each child committed
452 to it under this section. The parent or legal guardian of a child committed to the physical
453 custody of a local mental health authority under this section, retains legal custody of the child,
454 unless legal custody has been otherwise modified by a court of competent jurisdiction. In cases
455 when the Division of Child and Family Services or the Division of Juvenile Justice Services
456 has legal custody of a child, that division shall retain legal custody for purposes of this part.
457 (8) The cost of caring for and maintaining a child in the physical custody of a local
458 mental health authority shall be assessed to and paid by the child's parents, according to their
459 ability to pay. For purposes of this section, the Division of Child and Family Services or the

460 Division of Juvenile Justice Services shall be financially responsible, in addition to the child's
461 parents, if the child is in the legal custody of either of those divisions at the time the child is
462 committed to the physical custody of a local mental health authority under this section, unless
463 Medicaid regulation or contract provisions specify otherwise. The Office of Recovery Services
464 shall assist those divisions in collecting the costs assessed pursuant to this section.
465 (9) Whenever application is made for commitment of a minor to a local mental health
466 authority under any provision of this section by a person other than the child's parent or
467 guardian, the local mental health authority or its designee shall notify the child's parent or
468 guardian. The parents shall be provided sufficient time to prepare and appear at any scheduled
469 proceeding.
470 (10) (a) Each child committed pursuant to this section is entitled to an appeal within 30
471 days after any order for commitment. The appeal may be brought on the child's own petition,
472 or that of his parent or legal guardian, to the juvenile court in the district where the child
473 resides or is currently physically located. With regard to a child in the custody of the Division
474 of Child and Family Services or the Division of Juvenile Justice Services, the attorney general's
475 office shall handle the appeal, otherwise the appropriate county attorney's office is responsible
476 for appeals brought pursuant to this Subsection (10)(a).
477 (b) Upon receipt of the petition for appeal, the court shall appoint a designated
478 examiner previously unrelated to the case, to conduct an examination of the child in accordance
479 with the criteria described in Subsection (4), and file a written report with the court. The court
480 shall then conduct an appeal hearing to determine whether the findings described in Subsection
481 (4) exist by clear and convincing evidence.
482 (c) Prior to the time of the appeal hearing, the appropriate local mental health authority,
483 its designee, or the mental health professional who has been in charge of the child's care prior
484 to commitment, shall provide the court and the designated examiner for the appeal hearing with
485 the following information, as it relates to the period of current admission:
486 (i) the original petition for commitment;
487 (ii) admission notes;
488 (iii) diagnosis;
489 (iv) physicians' orders;
490 (v) progress notes;

491 (vi) nursing notes; and
492 (vii) medication records.
493 (d) Both the neutral and detached fact finder and the designated examiner appointed for
494 the appeal hearing shall be provided with an opportunity to review the most current
495 information described in Subsection (10)(c) prior to the appeal hearing.
496 (e) The child, his parent or legal guardian, the person who submitted the original
497 petition for commitment, and a representative of the appropriate local mental health authority
498 shall be notified by the court of the date and time of the appeal hearing. Those persons shall be
499 afforded an opportunity to appear at the hearing. In reaching its decision, the court shall review
500 the record and findings of the neutral and detached fact finder, the report of the designated
501 examiner appointed pursuant to Subsection (10)(b), and may, in its discretion, allow or require
502 the testimony of the neutral and detached fact finder, the designated examiner, the child, the
503 child's parent or legal guardian, the person who brought the initial petition for commitment, or
504 any other person whose testimony the court deems relevant. The court may allow the child to
505 waive his right to appear at the appeal hearing, for good cause shown. If that waiver is granted,
506 the purpose shall be made a part of the court's record.
507 (11) Each local mental health authority has an affirmative duty to conduct periodic
508 evaluations of the mental health and treatment progress of every child committed to its physical
509 custody under this section, and to release any child who has sufficiently improved so that the
510 criteria justifying commitment no longer exist.
511 (12) (a) A local mental health authority or its designee, in conjunction with the child's
512 current treating mental health professional may release an improved child to a less restrictive
513 environment, as they determine appropriate. Whenever the local mental health authority or its
514 designee, and the child's current treating mental health professional, determine that the
515 conditions justifying commitment no longer exist, the child shall be discharged and released to
516 his parent or legal guardian. With regard to a child who is in the physical custody of the State
517 Hospital, the treating psychiatrist or clinical director of the State Hospital shall be the child's
518 current treating mental health professional.
519 (b) A local mental health authority or its designee, in conjunction with the child's
520 current treating mental health professional, is authorized to issue a written order for the
521 immediate placement of a child not previously released from an order of commitment into a

522 more restrictive environment, if the local authority or its designee and the child's current
523 treating mental health professional has reason to believe that the less restrictive environment in
524 which the child has been placed is exacerbating his mental illness, or increasing the risk of
525 harm to himself or others.
526 (c) The written order described in Subsection (12)(b) shall include the reasons for
527 placement in a more restrictive environment and shall authorize any peace officer to take the
528 child into physical custody and transport him to a facility designated by the appropriate local
529 mental health authority in conjunction with the child's current treating mental health
530 professional. Prior to admission to the more restrictive environment, copies of the order shall
531 be personally delivered to the child, his parent or legal guardian, the administrator of the more
532 restrictive environment, or his designee, and the child's former treatment provider or facility.
533 (d) If the child has been in a less restrictive environment for more than 30 days and is
534 aggrieved by the change to a more restrictive environment, the child or his representative may
535 request a review within 30 days of the change, by a neutral and detached fact finder as
536 described in Subsection (3). The fact finder shall determine whether:
537 (i) the less restrictive environment in which the child has been placed is exacerbating
538 his mental illness, or increasing the risk of harm to himself or others; or
539 (ii) the less restrictive environment in which the child has been placed is not
540 exacerbating his mental illness, or increasing the risk of harm to himself or others, in which
541 case the fact finder shall designate that the child remain in the less restrictive environment.
542 (e) Nothing in this section prevents a local mental health authority or its designee, in
543 conjunction with the child's current mental health professional, from discharging a child from
544 commitment or from placing a child in an environment that is less restrictive than that
545 designated by the neutral and detached fact finder.
546 (13) Each local mental health authority or its designee, in conjunction with the child's
547 current treating mental health professional shall discharge any child who, in the opinion of that
548 local authority, or its designee, and the child's current treating mental health professional, no
549 longer meets the criteria specified in Subsection (4), except as provided by Section 78-3a-121 .
550 The local authority and the mental health professional shall assure that any further supportive
551 services required to meet the child's needs upon release will be provided.
552 (14) Even though a child has been committed to the physical custody of a local mental

553 health authority pursuant to this section, the child is still entitled to additional due process
554 proceedings, in accordance with Section 62A-15-704 , before any treatment which may affect a
555 constitutionally protected liberty or privacy interest is administered. Those treatments include,
556 but are not limited to, antipsychotic medication, electroshock therapy, and psychosurgery.
557 Section 4. Section 62A-15-705 is amended to read:
558 62A-15-705. Commitment proceedings in juvenile court -- Criteria -- Custody.
559 (1) (a) Subject to Subsection (1)(b), commitment proceedings for a child may be
560 commenced by filing a written application with the juvenile court of the county in which the
561 child resides or is found, in accordance with the procedures described in Section 62A-15-631 .
562 (b) Commitment proceedings under this section may be commenced only after a
563 commitment proceeding under Section 62A-15-703 has concluded without the child being
564 committed.
565 (2) The juvenile court shall order commitment to the physical custody of a local mental
566 health authority if, upon completion of the hearing and consideration of the record, it finds by
567 clear and convincing evidence that:
568 (a) the child has a mental illness, as defined in [Subsection] Section 62A-15-602 [(8)];
569 (b) the child demonstrates a risk of harm to himself or others;
570 (c) the child is experiencing significant impairment in his ability to perform socially;
571 (d) the child will benefit from the proposed care and treatment; and
572 (e) there is no appropriate less restrictive alternative.
573 (3) The local mental health authority has an affirmative duty to conduct periodic
574 reviews of children committed to its custody pursuant to this section, and to release any child
575 who has sufficiently improved so that the local mental health authority or its designee
576 determines that commitment is no longer appropriate.
577 Section 5. Section 77-15-5 is amended to read:
578 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
579 defendant -- Scope of examination and report.
580 (1) When a petition is filed pursuant to Section 77-15-3 raising the issue of the
581 defendant's competency to stand trial or when the court raises the issue of the defendant's
582 competency pursuant to Section 77-15-4 , the court in which proceedings are pending shall stay
583 all proceedings. If the proceedings are in a court other than the district court in which the

584 petition is filed, the district court shall notify that court of the filing of the petition. The district
585 court in which the petition is filed shall pass upon the sufficiency of the allegations of
586 incompetency. If a petition is opposed by either party, the court shall, prior to granting or
587 denying the petition, hold a limited hearing solely for the purpose of determining the
588 sufficiency of the petition. If the court finds that the allegations of incompetency raise a bona
589 fide doubt as to the defendant's competency to stand trial, it shall enter an order for a hearing
590 on the mental condition of the person who is the subject of the petition.
591 (2) (a) After the granting of a petition and prior to a full competency hearing, the court
592 may order the Department of Human Services to examine the person and to report to the court
593 concerning the defendant's mental condition.
594 (b) The defendant shall be examined by at least two mental health experts not involved
595 in the current treatment of the defendant.
596 (c) If the issue is sufficiently raised in the petition or if it becomes apparent that the
597 defendant may be incompetent due to mental retardation, at least one expert experienced in
598 mental retardation assessment shall evaluate the defendant. Upon appointment of the experts,
599 the petitioner or other party as directed by the court shall provide information and materials to
600 the examiners relevant to a determination of the defendant's competency and shall provide
601 copies of the charging document, arrest or incident reports pertaining to the charged offense,
602 known criminal history information, and known prior mental health evaluations and treatments.
603 (d) The prosecuting and defense attorneys shall cooperate in providing the relevant
604 information and materials to the examiners, and the court may make the necessary orders to
605 provide the information listed in Subsection (2)(c) to the examiners. The court may provide in
606 its order for a competency examination of a defendant that custodians of mental health records
607 pertaining to the defendant shall provide those records to the examiners without the need for
608 consent of the defendant or further order of the court.
609 (3) During the examination under Subsection (2), unless the court or the executive
610 director of the department directs otherwise, the defendant shall be retained in the same
611 custody or status he was in at the time the examination was ordered.
612 (4) The experts shall in the conduct of their examination and in their report to the court
613 consider and address, in addition to any other factors determined to be relevant by the experts:
614 (a) the defendant's present capacity to:

615 (i) comprehend and appreciate the charges or allegations against him;
616 (ii) disclose to counsel pertinent facts, events, and states of mind;
617 (iii) comprehend and appreciate the range and nature of possible penalties, if
618 applicable, that may be imposed in the proceedings against him;
619 (iv) engage in reasoned choice of legal strategies and options;
620 (v) understand the adversary nature of the proceedings against him;
621 (vi) manifest appropriate courtroom behavior; and
622 (vii) testify relevantly, if applicable;
623 (b) the impact of the mental disorder, or mental retardation, if any, on the nature and
624 quality of the defendant's relationship with counsel;
625 (c) if psychoactive medication is currently being administered:
626 (i) whether the medication is necessary to maintain the defendant's competency; and
627 (ii) the effect of the medication, if any, on the defendant's demeanor and affect and
628 ability to participate in the proceedings.
629 (5) If the expert's opinion is that the defendant is incompetent to proceed, the expert
630 shall indicate in the report:
631 (a) which of the above factors contributes to the defendant's incompetency;
632 (b) the nature of the defendant's mental disorder or mental retardation and its
633 relationship to the factors contributing to the defendant's incompetency;
634 (c) the treatment or treatments appropriate and available; and
635 (d) the defendant's capacity to give informed consent to treatment to restore
636 competency.
637 (6) The experts examining the defendant shall provide an initial report to the court and
638 the prosecuting and defense attorneys within 30 days of the receipt of the court's order. The
639 report shall inform the court of the examiner's opinion concerning the competency of the
640 defendant to stand trial, or, in the alternative, the examiner may inform the court in writing that
641 additional time is needed to complete the report. If the examiner informs the court that
642 additional time is needed, the examiner shall have up to an additional 30 days to provide the
643 report to the court and counsel. The examiner must provide the report within 60 days from the
644 receipt of the court's order unless, for good cause shown, the court authorizes an additional
645 period of time to complete the examination and provide the report.

646 (7) Any written report submitted by the experts shall:
647 (a) identify the specific matters referred for evaluation;
648 (b) describe the procedures, techniques, and tests used in the examination and the
649 purpose or purposes for each;
650 (c) state the expert's clinical observations, findings, and opinions on each issue referred
651 for examination by the court, and indicate specifically those issues, if any, on which the expert
652 could not give an opinion; and
653 (d) identify the sources of information used by the expert and present the basis for the
654 expert's clinical findings and opinions.
655 (8) (a) Any statement made by the defendant in the course of any competency
656 examination, whether the examination is with or without the consent of the defendant, any
657 testimony by the expert based upon such statement, and any other fruits of the statement may
658 not be admitted in evidence against the defendant in any criminal proceeding except on an
659 issue respecting mental condition on which the defendant has introduced evidence. The
660 evidence may be admitted, however, where relevant to a determination of the defendant's
661 competency.
662 (b) Prior to examining the defendant, examiners should specifically advise the
663 defendant of the limits of confidentiality as provided under Subsection (8)(a).
664 (9) When the report is received the court shall set a date for a mental hearing which
665 shall be held in not less than five and not more than 15 days, unless the court enlarges the time
666 for good cause. The hearing shall be conducted according to the procedures outlined in
667 Subsections 62A-15-631 (9)[(b)] (d) through (9)[(f)] (h). Any person or organization directed
668 by the department to conduct the examination may be subpoenaed to testify at the hearing. If
669 the experts are in conflict as to the competency of the defendant, all experts should be called to
670 testify at the hearing if reasonably available. The court may call any examiner to testify at the
671 hearing who is not called by the parties. If the court calls an examiner, counsel for the parties
672 may cross-examine the expert.
673 (10) A person shall be presumed competent unless the court, by a preponderance of the
674 evidence, finds the person incompetent to proceed. The burden of proof is upon the proponent
675 of incompetency at the hearing. An adjudication of incompetency to proceed shall not operate
676 as an adjudication of incompetency to give informed consent for medical treatment or for any

677 other purpose, unless specifically set forth in the court order.
678 (11) (a) If the court finds the defendant incompetent to stand trial, its order shall
679 contain findings addressing each of the factors in Subsections (4)(a) and (b) of this section.
680 The order issued pursuant to Subsection 77-15-6 (1) which the court sends to the facility where
681 the defendant is committed or to the person who is responsible for assessing his progress
682 toward competency shall be provided contemporaneously with the transportation and
683 commitment order of the defendant, unless exigent circumstances require earlier commitment
684 in which case the court shall forward the order within five working days of the order of
685 transportation and commitment of the defendant.
686 (b) The order finding the defendant incompetent to stand trial shall be accompanied by:
687 (i) copies of the reports of the experts filed with the court pursuant to the order of
688 examination if not provided previously;
689 (ii) copies of any of the psychiatric, psychological, or social work reports submitted to
690 the court relative to the mental condition of the defendant; and
691 (iii) any other documents made available to the court by either the defense or the
692 prosecution, pertaining to the defendant's current or past mental condition.
693 (12) If the court finds it necessary to order the defendant transported prior to the
694 completion of findings and compilation of documents required under Subsection (11), the
695 transportation and commitment order delivering the defendant to the Utah State Hospital, or
696 other mental health facility as directed by the executive director of the Department of Human
697 Services or his designee, shall indicate that the defendant's commitment is based upon a finding
698 of incompetency, and the mental health facility's copy of the order shall be accompanied by the
699 reports of any experts filed with the court pursuant to the order of examination. The executive
700 director of the Department of Human Services or his designee may refuse to accept a defendant
701 as a patient unless he is accompanied by a transportation and commitment order which is
702 accompanied by the reports.
703 (13) Upon a finding of incompetency to stand trial by the court, the prosecuting and
704 defense attorneys shall provide information and materials relevant to the defendant's
705 competency to the facility where the defendant is committed or to the person responsible for
706 assessing his progress towards competency. In addition to any other materials, the prosecuting
707 attorney shall provide:

708 (a) copies of the charging document and supporting affidavits or other documents used
709 in the determination of probable cause;
710 (b) arrest or incident reports prepared by a law enforcement agency pertaining to the
711 charged offense; and
712 (c) information concerning the defendant's known criminal history.
713 (14) The court may make any reasonable order to insure compliance with this section.
714 (15) Failure to comply with this section shall not result in the dismissal of criminal
715 charges.