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7 LONG TITLE
8 General Description:
9 This bill amends provisions of the civil commitment code and the definition of
10 "unprofessional conduct" applied to mental health professionals.
11 Highlighted Provisions:
12 This bill:
13 ▸ requires that a mental health professional provide a patient the opportunity to waive
14 the patient's privacy rights;
15 ▸ requires a designated examiner to consider a proposed patient's mental health
16 history when evaluating the proposed patient for civil commitment;
17 ▸ allows a designated examiner to request a court order to obtain a proposed patient's
18 mental health history;
19 ▸ requires a designated examiner to disclose to an unrepresented proposed patient the
20 fact that the designated examiner may, by court order, obtain the proposed patient's
21 mental health history;
22 ▸ limits the circumstances under which a court may terminate a civil commitment;
23 and
24 ▸ makes technical changes.
25 Money Appropriated in this Bill:
26 None
27 Other Special Clauses:
28 None
29 Utah Code Sections Affected:
30 AMENDS:
31 58-60-110, as last amended by Laws of Utah 2001, Chapter 281
32 62A-15-618, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
33 Chapter 8
34 62A-15-626, as last amended by Laws of Utah 2008, Chapter 3
35 62A-15-631, as last amended by Laws of Utah 2018, Chapter 322
36 62A-15-632, as last amended by Laws of Utah 2018, Chapter 322
37 62A-15-637, as last amended by Laws of Utah 2018, Chapter 322
38
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 58-60-110 is amended to read:
41 58-60-110. Unprofessional conduct.
42 (1) As used in this chapter, "unprofessional conduct" includes:
43 (a) using or employing the services of any individual to assist a licensee in any manner
44 not in accordance with the generally recognized practices, standards, or ethics of the profession
45 for which the individual is licensed, or the laws of the state;
46 (b) failure to confine practice conduct to those acts or practices:
47 (i) in which the individual is competent by education, training, and experience within
48 limits of education, training, and experience; and
49 (ii) which are within applicable scope of practice laws of this chapter; [
50 (c) disclosing or refusing to disclose any confidential communication under Section
51 58-60-114 or 58-60-509[
52 (d) a pattern of failing to offer a patient the opportunity to waive the patient's privacy
53 rights under the Standards for Privacy of Individually Identifiable Health Information, 45
54 C.F.R., Parts 160 and 164.
55 (2) "Unprofessional conduct" under this chapter may be further defined by division
56 rule.
57 (3) Notwithstanding Section 58-1-401, the division may not act upon the license of a
58 licensee for unprofessional conduct under Subsection (1)(d).
59 Section 2. Section 62A-15-618 is amended to read:
60 62A-15-618. Designated examiners.
61 (1) A designated examiner shall consider a proposed patient's mental health history
62 when evaluating a proposed patient.
63 (2) A designated examiner may request a court order to obtain a proposed patient's
64 mental health records if a proposed patient refuses to share this information with the designated
65 examiner.
66 (3) [
67 by the county legislative body of the county in which the proposed patient resides or is found,
68 unless [
69 Section 3. Section 62A-15-626 is amended to read:
70 62A-15-626. Release from commitment.
71 (1) (a) [
72 mental health authority's designee shall release from commitment any [
73 in the opinion of the local mental health authority or [
74 designee, has recovered or no longer meets the criteria specified in Section 62A-15-631.
75 (b) A local mental health authority's inability to locate a committed individual may not
76 be the basis for the individual's release, unless the court orders the release of the individual
77 after a hearing.
78 (2) A local mental health authority or [
79 release from commitment any patient whose commitment is determined to be no longer
80 advisable except as provided by Section 78A-6-120, but an effort shall be made to assure that
81 any further supportive services required to meet the patient's needs upon release will be
82 provided.
83 (3) When a patient has been committed to a local mental health authority by judicial
84 process, the local mental health authority shall follow the procedures described in Sections
85 62A-15-636 and 62A-15-637.
86 Section 4. Section 62A-15-631 is amended to read:
87 62A-15-631. Involuntary commitment under court order -- Examination --
88 Hearing -- Power of court -- Findings required -- Costs.
89 (1) A responsible [
90 illness and the condition or circumstances that have led to the adult's need to be involuntarily
91 committed may initiate an involuntary commitment court proceeding by filing, in the district
92 court in the county where the proposed patient resides or is found, a written application that
93 includes:
94 (a) unless the court finds that the information is not reasonably available, the proposed
95 patient's:
96 (i) name;
97 (ii) date of birth; and
98 (iii) social security number; and
99 (b) (i) a certificate of a licensed physician or a designated examiner stating that within
100 the seven-day period immediately preceding the certification, the physician or designated
101 examiner examined the proposed patient and is of the opinion that the proposed patient has a
102 mental illness and should be involuntarily committed; or
103 (ii) a written statement by the applicant that:
104 (A) the proposed patient has been requested to, but has refused to, submit to an
105 examination of mental condition by a licensed physician or designated examiner;
106 (B) is sworn to under oath; and
107 (C) states the facts upon which the application is based.
108 (2) (a) Subject to Subsection (2)(b), before issuing a judicial order, the court may
109 require the applicant to consult with the appropriate local mental health authority, and the court
110 may direct a mental health professional from that local mental health authority to interview the
111 applicant and the proposed patient to determine the existing facts and report them to the court.
112 (b) The consultation described in Subsection (2)(a):
113 (i) may take place at or before the hearing; and
114 (ii) is required if the local mental health authority appears at the hearing.
115 (3) If the court finds from the application, from any other statements under oath, or
116 from any reports from a mental health professional that there is a reasonable basis to believe
117 that the proposed patient has a mental illness that poses a substantial danger to self or others
118 requiring involuntary commitment pending examination and hearing; or, if the proposed patient
119 has refused to submit to an interview with a mental health professional as directed by the court
120 or to go to a treatment facility voluntarily, the court may issue an order, directed to a mental
121 health officer or peace officer, to immediately place the proposed patient in the custody of a
122 local mental health authority or in a temporary emergency facility as provided in Section
123 62A-15-634 to be detained for the purpose of examination.
124 (4) Notice of commencement of proceedings for involuntary commitment, setting forth
125 the allegations of the application and any reported facts, together with a copy of any official
126 order of detention, shall be provided by the court to a proposed patient before, or upon,
127 placement in the custody of a local mental health authority or, with respect to any proposed
128 patient presently in the custody of a local mental health authority whose status is being changed
129 from voluntary to involuntary, upon the filing of an application for that purpose with the court.
130 A copy of that order of detention shall be maintained at the place of detention.
131 (5) Notice of commencement of those proceedings shall be provided by the court as
132 soon as practicable to the applicant, any legal guardian, any immediate adult family members,
133 legal counsel for the parties involved, the local mental health authority or its designee, and any
134 other persons whom the proposed patient or the court shall designate. That notice shall advise
135 those persons that a hearing may be held within the time provided by law. If the proposed
136 patient has refused to permit release of information necessary for provisions of notice under
137 this subsection, the extent of notice shall be determined by the court.
138 (6) Proceedings for commitment of an individual under the age of 18 years to a local
139 mental health authority may be commenced in accordance with Part 7, Commitment of Persons
140 Under Age 18 to Division of Substance Abuse and Mental Health.
141 (7) The district court may, in its discretion, transfer the case to any other district court
142 within this state, provided that the transfer will not be adverse to the interest of the proposed
143 patient.
144 (8) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance
145 of a judicial order, or after commitment of a proposed patient to a local mental health authority
146 or its designee under court order for detention or examination, the court shall appoint two
147 designated examiners:
148 (a) who did not sign the civil commitment application nor the civil commitment
149 certification under Subsection (1);
150 (b) one of whom is a licensed physician; and
151 (c) one of whom may be designated by the proposed patient or the proposed patient's
152 counsel, if that designated examiner is reasonably available.
153 (9) The court shall schedule a hearing to be held within 10 calendar days of the day on
154 which the designated examiners are appointed.
155 (10) The designated examiners shall:
156 (a) conduct their examinations separately;
157 (b) conduct the examinations at the home of the proposed patient, at a hospital or other
158 medical facility, or at any other suitable place that is not likely to have a harmful effect on the
159 proposed patient's health;
160 (c) inform the proposed patient, if not represented by an attorney:
161 (i) that the proposed patient does not have to say anything;
162 (ii) of the nature and reasons for the examination;
163 (iii) that the examination was ordered by the court;
164 (iv) that any information volunteered could form part of the basis for the proposed
165 patient's involuntary commitment; [
166 (v) that findings resulting from the examination will be made available to the court;
167 and
168 (vi) that the designated examiner may, under court order, obtain the proposed patient's
169 mental health records; and
170 (d) within 24 hours of examining the proposed patient, report to the court, orally or in
171 writing, whether the proposed patient is mentally ill, has agreed to voluntary commitment, as
172 described in Section 62A-15-625, or has acceptable programs available to the proposed patient
173 without court proceedings. If the designated examiner reports orally, the designated examiner
174 shall immediately send a written report to the clerk of the court.
175 (11) If a designated examiner is unable to complete an examination on the first attempt
176 because the proposed patient refuses to submit to the examination, the court shall fix a
177 reasonable compensation to be paid to the examiner.
178 (12) If the local mental health authority, its designee, or a medical examiner determines
179 before the court hearing that the conditions justifying the findings leading to a commitment
180 hearing no longer exist, the local mental health authority, its designee, or the medical examiner
181 shall immediately report that determination to the court.
182 (13) The court may terminate the proceedings and dismiss the application at any time,
183 including prior to the hearing, if the designated examiners or the local mental health authority
184 or its designee informs the court that the proposed patient:
185 (a) is not mentally ill;
186 (b) has agreed to voluntary commitment, as described in Section 62A-15-625; or
187 (c) has acceptable options for treatment programs that are available without court
188 proceedings.
189 (14) Before the hearing, an opportunity to be represented by counsel shall be afforded
190 to every proposed patient, and if neither the proposed patient nor others provide counsel, the
191 court shall appoint counsel and allow counsel sufficient time to consult with the proposed
192 patient before the hearing. In the case of an indigent proposed patient, the payment of
193 reasonable attorney fees for counsel, as determined by the court, shall be made by the county in
194 which the proposed patient resides or is found.
195 (15) (a) The proposed patient, the applicant, and all other persons to whom notice is
196 required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to
197 present and cross-examine witnesses. The court may, in its discretion, receive the testimony of
198 any other person. The court may allow a waiver of the proposed patient's right to appear only
199 for good cause shown, and that cause shall be made a matter of court record.
200 (b) The court is authorized to exclude all persons not necessary for the conduct of the
201 proceedings and may, upon motion of counsel, require the testimony of each examiner to be
202 given out of the presence of any other examiners.
203 (c) The hearing shall be conducted in as informal a manner as may be consistent with
204 orderly procedure, and in a physical setting that is not likely to have a harmful effect on the
205 mental health of the proposed patient.
206 (d) The court shall consider all relevant historical and material information that is
207 offered, subject to the rules of evidence, including reliable hearsay under Rule 1102, Utah
208 Rules of Evidence.
209 (e) (i) A local mental health authority or its designee[
210 proposed patient's care shall, at the time of the hearing, provide the court with the following
211 information:
212 (A) the detention order;
213 (B) admission notes;
214 (C) the diagnosis;
215 (D) any doctors' orders;
216 (E) progress notes;
217 (F) nursing notes; and
218 (G) medication records pertaining to the current commitment.
219 (ii) That information shall also be supplied to the proposed patient's counsel at the time
220 of the hearing, and at any time prior to the hearing upon request.
221 (16) The court shall order commitment of a proposed patient who is 18 years of age or
222 older to a local mental health authority if, upon completion of the hearing and consideration of
223 the information presented [
224 convincing evidence that:
225 (a) the proposed patient has a mental illness;
226 (b) because of the proposed patient's mental illness the proposed patient poses a
227 substantial danger to self or others;
228 (c) the proposed patient lacks the ability to engage in a rational decision-making
229 process regarding the acceptance of mental treatment as demonstrated by evidence of inability
230 to weigh the possible risks of accepting or rejecting treatment;
231 (d) there is no appropriate less-restrictive alternative to a court order of commitment;
232 and
233 (e) the local mental health authority can provide the proposed patient with treatment
234 that is adequate and appropriate to the proposed patient's conditions and needs. In the absence
235 of the required findings of the court after the hearing, the court shall dismiss the proceedings.
236 (17) (a) The order of commitment shall designate the period for which the patient shall
237 be treated. When the patient is not under an order of commitment at the time of the hearing,
238 that period may not exceed six months without benefit of a review hearing. Upon such a
239 review hearing, to be commenced prior to the expiration of the previous order, an order for
240 commitment may be for an indeterminate period, if the court finds by clear and convincing
241 evidence that the required conditions in Subsection (16) will last for an indeterminate period.
242 (b) The court shall maintain a current list of all patients under its order of commitment.
243 That list shall be reviewed to determine those patients who have been under an order of
244 commitment for the designated period. At least two weeks prior to the expiration of the
245 designated period of any order of commitment still in effect, the court that entered the original
246 order shall inform the appropriate local mental health authority or its designee. The local
247 mental health authority or its designee shall immediately reexamine the reasons upon which the
248 order of commitment was based. If the local mental health authority or its designee determines
249 that the conditions justifying that commitment no longer exist, it shall discharge the patient
250 from involuntary commitment and immediately report the discharge to the court. Otherwise,
251 the court shall immediately appoint two designated examiners and proceed under Subsections
252 (8) through (14).
253 (c) The local mental health authority or its designee responsible for the care of a patient
254 under an order of commitment for an indeterminate period shall, at six-month intervals,
255 reexamine the reasons upon which the order of indeterminate commitment was based. If the
256 local mental health authority or its designee determines that the conditions justifying that
257 commitment no longer exist, that local mental health authority or its designee shall discharge
258 the patient from its custody and immediately report the discharge to the court. If the local
259 mental health authority or its designee determines that the conditions justifying that
260 commitment continue to exist, the local mental health authority or its designee shall send a
261 written report of those findings to the court. The patient and the patient's counsel of record
262 shall be notified in writing that the involuntary commitment will be continued, the reasons for
263 that decision, and that the patient has the right to a review hearing by making a request to the
264 court. Upon receiving the request, the court shall immediately appoint two designated
265 examiners and proceed under Subsections (8) through (14).
266 (18) Any patient committed as a result of an original hearing or a patient's legally
267 designated representative who is aggrieved by the findings, conclusions, and order of the court
268 entered in the original hearing has the right to a new hearing upon a petition filed with the court
269 within 30 days of the entry of the court order. The petition must allege error or mistake in the
270 findings, in which case the court shall appoint three impartial designated examiners previously
271 unrelated to the case to conduct an additional examination of the patient. The new hearing
272 shall, in all other respects, be conducted in the manner otherwise permitted.
273 (19) Costs of all proceedings under this section shall be paid by the county in which the
274 proposed patient resides or is found.
275 Section 5. Section 62A-15-632 is amended to read:
276 62A-15-632. Circumstances under which conditions justifying initial involuntary
277 commitment shall be considered to continue to exist.
278 (1) After an individual is involuntarily committed to the custody of a local mental
279 health authority under Subsection 62A-15-631(16), the conditions justifying commitment
280 under that subsection shall be considered to continue to exist, for purposes of continued
281 treatment under Subsection 62A-15-631(17) or conditional release under Section 62A-15-637[
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287 (a) the court terminates the civil commitment through a review hearing; or
288 (b) the local mental health authority or a designee of the local mental health authority
289 with custody over the patient discharges the patient and provides notice of the discharge to the
290 court, as described in Subsections 62A-15-631(17)(c) and 62A-15-637(2).
291 (2) A patient whose treatment is continued or who is conditionally released under [
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293 environment available that can provide the patient with the treatment that is adequate and
294 appropriate.
295 (3) Except for good cause, a court may not terminate a civil commitment through a
296 review hearing if the patient:
297 (a) is under a conditional release agreement; and
298 (b) does not appear at the review hearing.
299 Section 6. Section 62A-15-637 is amended to read:
300 62A-15-637. Release of patient to receive other treatment -- Placement in more
301 restrictive environment -- Procedures.
302 (1) A local mental health authority or a designee of a local mental health authority may
303 conditionally release an improved patient to less restrictive treatment when:
304 (a) the authority specifies the [
305 (b) the patient agrees in writing to the less restrictive treatment.
306 (2) (a) Whenever a local mental health authority or a designee of a local mental health
307 authority determines that the conditions justifying commitment no longer exist, the local
308 mental health authority or the designee shall discharge the patient.
309 (b) If the discharged patient has been committed through judicial proceedings, the local
310 mental health authority or the designee shall prepare a report describing the determination and
311 shall send the report to the clerk of the court where the proceedings were held.
312 (3) (a) A local mental health authority or a designee of a local mental health authority
313 is authorized to issue an order for the immediate placement of a current patient into a more
314 restrictive environment, if:
315 (i) the local mental health authority or a designee of a local mental health authority has
316 reason to believe that the patient's current environment is aggravating the patient's mental
317 illness; or
318 (ii) the patient has failed to comply with the specified treatment plan to which the
319 patient agreed in writing.
320 (b) An order for a more restrictive environment shall [
321 (i) state the reasons for the order [
322 (ii) authorize any peace officer to take the patient into physical custody and transport
323 the patient to a facility designated by the local mental health authority[
324 (iii) inform the patient of the right to a hearing, the right to appointed counsel, and the
325 other procedures described in Subsection 62A-15-631(14); and
326 (iv) [
327 imposition of additional or different requirements as conditions for continued conditional
328 release from inpatient care, copies of the order shall be [
329 (A) the patient [
330 (B) the person in whose care the patient is placed[
331 (C) the patient's counsel of record; and [
332 (D) the court that entered the original order of commitment. [
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335 (c) If the patient was in a less restrictive environment for more than 30 days and is
336 aggrieved by the change to a more restrictive environment, the patient or the patient's
337 representative may request a hearing within 30 days of the change. Upon receiving the request,
338 the court shall immediately appoint two designated examiners and proceed pursuant to Section
339 62A-15-631, with the exception of Subsection 62A-15-631(16), unless, by the time set for the
340 hearing, the patient is returned to the less restrictive environment or the patient withdraws the
341 request for a hearing, in writing.
342 (d) The court shall:
343 (i) make findings regarding whether the conditions described in Subsections (3)(a) and
344 (b) were met and whether the patient is in the least restrictive environment that is appropriate
345 for the patient's needs; and
346 (ii) designate, by order, the environment for the patient's care and the period for which
347 the patient shall be treated, which may not extend beyond expiration of the original order of
348 commitment.
349 (4) Nothing contained in this section prevents a local mental health authority or its
350 designee, pursuant to Section 62A-15-636, from discharging a patient from commitment or
351 from placing a patient in an environment that is less restrictive than that ordered by the court.