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H.B. 14

             1     

CIVIL COMMITMENT AMENDMENTS

             2     
2012 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Bradley M. Daw

             5     
Senate Sponsor: Margaret Dayton

             6     
             7      LONG TITLE
             8      Committee Note:
             9          The Judiciary, Law Enforcement, and Criminal Justice Interim Committee
             10      recommended this bill.
             11      General Description:
             12          This bill amends Title 62A, Chapter 15, Substance Abuse and Mental Health Act, by
             13      including harmful sexual conduct as grounds for a civil commitment.
             14      Highlighted Provisions:
             15          This bill:
             16          .    defines the term "harmful sexual conduct";
             17          .    amends the definition of "substantial danger";
             18          .    amends the process for civil commitment; and
             19          .    makes technical changes.
             20      Money Appropriated in this Bill:
             21          None
             22      Other Special Clauses:
             23          None
             24      Utah Code Sections Affected:
             25      AMENDS:
             26          62A-15-602, as last amended by Laws of Utah 2003, Chapters 22 and 303
             27          62A-15-631, as last amended by Laws of Utah 2011, Chapter 366


             28     
             29      Be it enacted by the Legislature of the state of Utah:
             30          Section 1. Section 62A-15-602 is amended to read:
             31           62A-15-602. Definitions.
             32          As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
             33      Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah
             34      Forensic Mental Health Facility, and Part 10, Declaration for Mental Health Treatment:
             35          (1) "Adult" means a person 18 years of age or older.
             36          (2) "Commitment to the custody of a local mental health authority" means that an adult
             37      is committed to the custody of the local mental health authority that governs the mental health
             38      catchment area in which the proposed patient resides or is found.
             39          (3) "Designated examiner" means a licensed physician familiar with severe mental
             40      illness, preferably a psychiatrist, designated by the division as specially qualified by training or
             41      experience in the diagnosis of mental or related illness or another licensed mental health
             42      professional designated by the division as specially qualified by training and at least five years'
             43      continual experience in the treatment of mental or related illness. At least one designated
             44      examiner in any case shall be a licensed physician. No person who is the applicant, or who
             45      signs the certification, under Section 62A-15-631 may be a designated examiner in the same
             46      case.
             47          (4) "Designee" means a physician who has responsibility for medical functions
             48      including admission and discharge, an employee of a local mental health authority, or an
             49      employee of an agency that has contracted with a local mental health authority to provide
             50      mental health services under Section 17-43-304 .
             51          (5) "Harmful sexual conduct" means any of the following conduct upon an individual
             52      without the individual's consent, or upon an individual who cannot legally consent to the
             53      conduct including under the circumstances described in Subsections 76-5-406 (1) through (12):
             54          (a) sexual intercourse;
             55          (b) penetration, however slight, of the genital or anal opening of the individual;
             56          (c) any sexual act involving the genitals or anus of the actor or the individual and the
             57      mouth of anus of either individual, regardless of the gender of either participant; or
             58          (d) any sexual act causing substantial emotional injury or bodily pain.


             59          [(5)] (6) "Institution" means a hospital, or a health facility licensed under the
             60      provisions of Section 26-21-9 .
             61          [(6)] (7) "Licensed physician" means an individual licensed under the laws of this state
             62      to practice medicine, or a medical officer of the United States government while in this state in
             63      the performance of official duties.
             64          [(7)] (8) "Local comprehensive community mental health center" means an agency or
             65      organization that provides treatment and services to residents of a designated geographic area,
             66      operated by or under contract with a local mental health authority, in compliance with state
             67      standards for local comprehensive community mental health centers.
             68          (9) "Mental health facility" means the Utah State Hospital or other facility that
             69      provides mental health services under contract with the division, a local mental health
             70      authority, or organization that contracts with a local mental health authority.
             71          (10) "Mental health officer" means an individual who is designated by a local mental
             72      health authority as qualified by training and experience in the recognition and identification of
             73      mental illness, to interact with and transport persons to any mental health facility.
             74          [(8)] (11) "Mental illness" means a psychiatric disorder as defined by the current
             75      edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
             76      American Psychiatric Association which substantially impairs a person's mental, emotional,
             77      behavioral, or related functioning.
             78          [(11)] (12) "Patient" means an individual under commitment to the custody or to the
             79      treatment services of a local mental health authority.
             80          [(12)] (13) "Serious bodily injury" means bodily injury which involves a substantial
             81      risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
             82      protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
             83          [(13)] (14) "Substantial danger" means the person, by his or her behavior, due to
             84      mental illness:
             85          (a) is at serious risk to:
             86          (i) commit suicide[,];
             87          (ii) inflict serious bodily injury on himself or herself; or
             88          (iii) because of his or her actions or inaction, suffer serious bodily injury because he or
             89      she is incapable of providing the basic necessities of life, such as food, clothing, and shelter; or


             90          (b) is at serious risk to cause or attempt to cause serious bodily injury[; or] or engage in
             91      harmful sexual conduct.
             92          [(c) has inflicted or attempted to inflict serious bodily injury on another.]
             93          [(14)] (15) "Treatment" means psychotherapy, medication, including the administration
             94      of psychotropic medication, and other medical treatments that are generally accepted medical
             95      and psychosocial interventions for the purpose of restoring the patient to an optimal level of
             96      functioning in the least restrictive environment.
             97          Section 2. Section 62A-15-631 is amended to read:
             98           62A-15-631. Involuntary commitment under court order -- Examination --
             99      Hearing -- Power of court -- Findings required -- Costs.
             100          (1) Proceedings for involuntary commitment of an individual who is 18 years of age or
             101      older may be commenced by filing a written application with the district court of the county in
             102      which the proposed patient resides or is found, by a responsible person who has reason to know
             103      of the condition or circumstances of the proposed patient which lead to the belief that the
             104      individual has a mental illness and should be involuntarily committed. That application shall
             105      be accompanied by:
             106          (a) a certificate of a licensed physician or a designated examiner stating that within a
             107      seven-day period immediately preceding the certification the physician or designated examiner
             108      has examined the individual, and that the physician or designated examiner is of the opinion
             109      that the individual is mentally ill and should be involuntarily committed; or
             110          (b) a written statement by the applicant that:
             111          (i) the individual has been requested to, but has refused to, submit to an examination of
             112      mental condition by a licensed physician or designated examiner;
             113          (ii) is sworn to under oath; and
             114          (iii) states the facts upon which the application is based.
             115          (2) Before issuing a judicial order, the court may require the applicant to consult with
             116      the appropriate local mental health authority, or may direct a mental health professional from
             117      that local mental health authority to interview the applicant and the proposed patient to
             118      determine the existing facts and report them to the court.
             119          (3) If the court finds from the application, from any other statements under oath, or
             120      from any reports from a mental health professional that there is a reasonable basis to believe


             121      that the proposed patient has a mental illness which poses a substantial danger, as defined in
             122      Section 62A-15-602 , to self[,] or others[, or property] requiring involuntary commitment
             123      pending examination and hearing; or, if the proposed patient has refused to submit to an
             124      interview with a mental health professional as directed by the court or to go to a treatment
             125      facility voluntarily, the court may issue an order, directed to a mental health officer or peace
             126      officer, to immediately place the proposed patient in the custody of a local mental health
             127      authority or in a temporary emergency facility as provided in Section 62A-15-634 to be
             128      detained for the purpose of examination. Within 24 hours of the issuance of the order for
             129      examination, a local mental health authority or its designee shall report to the court, orally or in
             130      writing, whether the patient is, in the opinion of the examiners, mentally ill, whether the patient
             131      has agreed to become a voluntary patient under Section 62A-15-625 , and whether treatment
             132      programs are available and acceptable without court proceedings. Based on that information,
             133      the court may, without taking any further action, terminate the proceedings and dismiss the
             134      application. In any event, if the examiner reports orally, the examiner shall immediately send
             135      the report in writing to the clerk of the court.
             136          (4) Notice of commencement of proceedings for involuntary commitment, setting forth
             137      the allegations of the application and any reported facts, together with a copy of any official
             138      order of detention, shall be provided by the court to a proposed patient before, or upon,
             139      placement in the custody of a local mental health authority or, with respect to any individual
             140      presently in the custody of a local mental health authority whose status is being changed from
             141      voluntary to involuntary, upon the filing of an application for that purpose with the court. A
             142      copy of that order of detention shall be maintained at the place of detention.
             143          (5) Notice of commencement of those proceedings shall be provided by the court as
             144      soon as practicable to the applicant, any legal guardian, any immediate adult family members,
             145      legal counsel for the parties involved, and any other persons whom the proposed patient or the
             146      court shall designate. That notice shall advise those persons that a hearing may be held within
             147      the time provided by law. If the patient has refused to permit release of information necessary
             148      for provisions of notice under this subsection, the extent of notice shall be determined by the
             149      court.
             150          (6) Proceedings for commitment of an individual under the age of 18 years to the
             151      division may be commenced by filing a written application with the juvenile court in


             152      accordance with the provisions of Part 7, Commitment of Persons Under Age 18 to Division of
             153      Substance Abuse and Mental Health.
             154          (7) The district court may, in its discretion, transfer the case to any other district court
             155      within this state, provided that the transfer will not be adverse to the interest of the proposed
             156      patient.
             157          (8) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the
             158      issuance of a judicial order, or after commitment of a proposed patient to a local mental health
             159      authority under court order for detention or examination, the court shall appoint two designated
             160      examiners to examine the proposed patient. If requested by the proposed patient's counsel, the
             161      court shall appoint, as one of the examiners, a reasonably available qualified person designated
             162      by counsel. The examinations, to be conducted separately, shall be held at the home of the
             163      proposed patient, a hospital or other medical facility, or at any other suitable place that is not
             164      likely to have a harmful effect on the patient's health.
             165          (b) The examiner shall inform the patient if not represented by an attorney that, if
             166      desired, the patient does not have to say anything, the nature and reasons for the examination,
             167      that it was ordered by the court, that any information volunteered could form part of the basis
             168      for his or her involuntary commitment, and that findings resulting from the examination will be
             169      made available to the court.
             170          (c) A time shall be set for a hearing to be held within 10 calendar days of the
             171      appointment of the designated examiners, unless those examiners or a local mental health
             172      authority or its designee informs the court prior to that hearing date that the patient is not
             173      mentally ill, that the patient has agreed to become a voluntary patient under Section
             174      62A-15-625 , or that treatment programs are available and acceptable without court
             175      proceedings, in which event the court may, without taking any further action, terminate the
             176      proceedings and dismiss the application.
             177          (9) (a) Before the hearing, an opportunity to be represented by counsel shall be
             178      afforded to every proposed patient, and if neither the patient nor others provide counsel, the
             179      court shall appoint counsel and allow counsel sufficient time to consult with the patient before
             180      the hearing. In the case of an indigent patient, the payment of reasonable attorney fees for
             181      counsel, as determined by the court, shall be made by the county in which the patient resides or
             182      was found.


             183          (b) The proposed patient, the applicant, and all other persons to whom notice is
             184      required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to
             185      present and cross-examine witnesses. The court may, in its discretion, receive the testimony of
             186      any other person. The court may allow a waiver of the patient's right to appear only for good
             187      cause shown, and that cause shall be made a matter of court record.
             188          (c) The court is authorized to exclude all persons not necessary for the conduct of the
             189      proceedings and may, upon motion of counsel, require the testimony of each examiner to be
             190      given out of the presence of any other examiners.
             191          (d) The hearing shall be conducted in as informal a manner as may be consistent with
             192      orderly procedure, and in a physical setting that is not likely to have a harmful effect on the
             193      mental health of the proposed patient.
             194          (e) The court shall consider all relevant historical and material information which is
             195      offered, subject to the rules of evidence, including reliable hearsay under Rule 1102, Utah
             196      Rules of Evidence.
             197          (f) (i) A local mental health authority or its designee, or the physician in charge of the
             198      patient's care shall, at the time of the hearing, provide the court with the following information:
             199          (A) the detention order;
             200          (B) admission notes;
             201          (C) the diagnosis;
             202          (D) any doctors' orders;
             203          (E) progress notes;
             204          (F) nursing notes; and
             205          (G) medication records pertaining to the current commitment.
             206          (ii) That information shall also be supplied to the patient's counsel at the time of the
             207      hearing, and at any time prior to the hearing upon request.
             208          (10) The court shall order commitment of an individual who is 18 years of age or older
             209      to a local mental health authority if, upon completion of the hearing and consideration of the
             210      information presented in accordance with Subsection (9)(e), the court finds by clear and
             211      convincing evidence that:
             212          (a) the proposed patient has a mental illness;
             213          (b) because of the proposed patient's mental illness the proposed patient poses a


             214      substantial danger, as defined in Section 62A-15-602 , [of physical injury] to self or others,
             215      which may include the inability to provide the basic necessities of life such as food, clothing,
             216      and shelter, if allowed to remain at liberty;
             217          (c) the patient lacks the ability to engage in a rational decision-making process
             218      regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh
             219      the possible risks of accepting or rejecting treatment;
             220          (d) there is no appropriate less-restrictive alternative to a court order of commitment;
             221      and
             222          (e) the local mental health authority can provide the individual with treatment that is
             223      adequate and appropriate to the individual's conditions and needs. In the absence of the
             224      required findings of the court after the hearing, the court shall forthwith dismiss the
             225      proceedings.
             226          (11) (a) The order of commitment shall designate the period for which the individual
             227      shall be treated. When the individual is not under an order of commitment at the time of the
             228      hearing, that period may not exceed six months without benefit of a review hearing. Upon
             229      such a review hearing, to be commenced prior to the expiration of the previous order, an order
             230      for commitment may be for an indeterminate period, if the court finds by clear and convincing
             231      evidence that the required conditions in Subsection (10) will last for an indeterminate period.
             232          (b) The court shall maintain a current list of all patients under its order of commitment.
             233      That list shall be reviewed to determine those patients who have been under an order of
             234      commitment for the designated period. At least two weeks prior to the expiration of the
             235      designated period of any order of commitment still in effect, the court that entered the original
             236      order shall inform the appropriate local mental health authority or its designee. The local
             237      mental health authority or its designee shall immediately reexamine the reasons upon which the
             238      order of commitment was based. If the local mental health authority or its designee determines
             239      that the conditions justifying that commitment no longer exist, it shall discharge the patient
             240      from involuntary commitment and immediately report that to the court. Otherwise, the court
             241      shall immediately appoint two designated examiners and proceed under Subsections (8)
             242      through (10).
             243          (c) The local mental health authority or its designee responsible for the care of a patient
             244      under an order of commitment for an indeterminate period, shall at six-month intervals


             245      reexamine the reasons upon which the order of indeterminate commitment was based. If the
             246      local mental health authority or its designee determines that the conditions justifying that
             247      commitment no longer exist, that local mental health authority or its designee shall discharge
             248      the patient from its custody and immediately report the discharge to the court. If the local
             249      mental health authority or its designee determines that the conditions justifying that
             250      commitment continue to exist, the local mental health authority or its designee shall send a
             251      written report of those findings to the court. The patient and his counsel of record shall be
             252      notified in writing that the involuntary commitment will be continued, the reasons for that
             253      decision, and that the patient has the right to a review hearing by making a request to the court.
             254      Upon receiving the request, the court shall immediately appoint two designated examiners and
             255      proceed under Subsections (8) through (10).
             256          (12) In the event that the designated examiners are unable, because a proposed patient
             257      refuses to submit to an examination, to complete that examination on the first attempt, the
             258      court shall fix a reasonable compensation to be paid to those designated examiners for their
             259      services.
             260          (13) Any person committed as a result of an original hearing or a person's legally
             261      designated representative who is aggrieved by the findings, conclusions, and order of the court
             262      entered in the original hearing has the right to a new hearing upon a petition filed with the court
             263      within 30 days of the entry of the court order. The petition must allege error or mistake in the
             264      findings, in which case the court shall appoint three impartial designated examiners previously
             265      unrelated to the case to conduct an additional examination of the patient. The new hearing
             266      shall, in all other respects, be conducted in the manner otherwise permitted.
             267          (14) Costs of all proceedings under this section shall be paid by the county in which the
             268      proposed patient resides or is found.




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