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7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to involuntary commitment, commitment to
10 assisted outpatient treatment, and competency to stand trial.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms and modifies definitions;
14 ▸ adds members to the Forensic Mental Health Coordinating Council;
15 ▸ modifies procedures and requirements for involuntary commitment of an individual,
16 including provisions relating to:
17 • notice of expiration of a court order for commitment;
18 • the qualifications of an individual who may evaluate an individual for civil
19 commitment;
20 • access to medical and mental health records in commitment proceedings;
21 • periodic review of an individual's commitment;
22 • the circumstances under which certain individuals who are committed after or
23 during a criminal proceeding may be discharged from commitment; and
24 • the risk assessment that must be completed before certain individuals are
25 released from civil commitment;
26 ▸ clarifies that a court may order assisted outpatient treatment of an individual who
27 does not meet the conditions for civil commitment;
28 ▸ modifies provisions relating to the mental health services a local mental health
29 authority is required to provide to an individual who is under an assisted outpatient
30 treatment order or a civil commitment order;
31 ▸ modifies the circumstances under which records and reports relating to an order for
32 civil commitment or assisted outpatient treatment may be disclosed;
33 ▸ modifies procedures and requirements for finding a defendant incompetent to stand
34 trial in a criminal proceeding, including provisions relating to:
35 • the court in which a petition to determine competency may be filed;
36 • the information and circumstances on which the forensic evaluation of a
37 defendant may be based;
38 • the number of forensic evaluators required to evaluate a defendant;
39 • the court's findings regarding a defendant's competency; and
40 • commitment of an incompetent defendant for restoration treatment; and
41 ▸ makes technical changes.
42 Money Appropriated in this Bill:
43 None
44 Other Special Clauses:
45 None
46 Utah Code Sections Affected:
47 AMENDS:
48 17-43-301, as last amended by Laws of Utah 2019, Chapter 256
49 31A-22-651, as enacted by Laws of Utah 2019, Chapter 256
50 53-10-208.1, as last amended by Laws of Utah 2019, Chapters 33 and 365
51 62A-15-602, as last amended by Laws of Utah 2019, Chapters 189 and 256
52 62A-15-605, as last amended by Laws of Utah 2015, Chapter 403
53 62A-15-626, as last amended by Laws of Utah 2019, Chapter 419
54 62A-15-631, as last amended by Laws of Utah 2019, Chapters 256 and 419
55 62A-15-632, as last amended by Laws of Utah 2019, Chapter 419
56 62A-15-636, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
57 Chapter 8
58 62A-15-637, as last amended by Laws of Utah 2019, Chapter 419
59 62A-15-643, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
60 Chapter 8
61 77-15-2, as last amended by Laws of Utah 2018, Chapter 147
62 77-15-3, as last amended by Laws of Utah 2018, Chapter 147
63 77-15-3.5, as enacted by Laws of Utah 2018, Chapter 147
64 77-15-4, as last amended by Laws of Utah 2018, Chapter 147
65 77-15-5, as last amended by Laws of Utah 2018, Chapter 147
66 77-15-6, as last amended by Laws of Utah 2018, Chapter 147
67 77-16a-302, as last amended by Laws of Utah 2011, Chapter 366
68
69 Be it enacted by the Legislature of the state of Utah:
70 Section 1. Section 17-43-301 is amended to read:
71 17-43-301. Local mental health authorities -- Responsibilities.
72 (1) As used in this section:
73 (a) "Assisted outpatient treatment" means the same as that term is defined in Section
74 62A-15-602.
75 (b) "Crisis worker" means the same as that term is defined in Section 62A-15-1301.
76 (c) "Local mental health crisis line" means the same as that term is defined in Section
77 63C-18-102.
78 (d) "Mental health therapist" means the same as that term is defined in Section
79 58-60-102.
80 (e) "Public funds" means the same as that term is defined in Section 17-43-303.
81 (f) "Statewide mental health crisis line" means the same as that term is defined in
82 Section 63C-18-102.
83 (2) (a) (i) In each county operating under a county executive-council form of
84 government under Section 17-52a-203, the county legislative body is the local mental health
85 authority, provided however that any contract for plan services shall be administered by the
86 county executive.
87 (ii) In each county operating under a council-manager form of government under
88 Section 17-52a-204, the county manager is the local mental health authority.
89 (iii) In each county other than a county described in Subsection (2)(a)(i) or (ii), the
90 county legislative body is the local mental health authority.
91 (b) Within legislative appropriations and county matching funds required by this
92 section, under the direction of the division, each local mental health authority shall:
93 (i) provide mental health services to individuals within the county; and
94 (ii) cooperate with efforts of the Division of Substance Abuse and Mental Health to
95 promote integrated programs that address an individual's substance abuse, mental health, and
96 physical healthcare needs, as described in Section 62A-15-103.
97 (c) Within legislative appropriations and county matching funds required by this
98 section, each local mental health authority shall cooperate with the efforts of the Department of
99 Human Services to promote a system of care, as defined in Section 62A-1-104, for minors with
100 or at risk for complex emotional and behavioral needs, as described in Section [
101 62A-1-104.
102 (3) (a) By executing an interlocal agreement under Title 11, Chapter 13, Interlocal
103 Cooperation Act, two or more counties may join to:
104 (i) provide mental health prevention and treatment services; or
105 (ii) create a united local health department that combines substance abuse treatment
106 services, mental health services, and local health department services in accordance with
107 Subsection (4).
108 (b) The legislative bodies of counties joining to provide services may establish
109 acceptable ways of apportioning the cost of mental health services.
110 (c) Each agreement for joint mental health services shall:
111 (i) (A) designate the treasurer of one of the participating counties or another person as
112 the treasurer for the combined mental health authorities and as the custodian of money
113 available for the joint services; and
114 (B) provide that the designated treasurer, or other disbursing officer authorized by the
115 treasurer, may make payments from the money available for the joint services upon audit of the
116 appropriate auditing officer or officers representing the participating counties;
117 (ii) provide for the appointment of an independent auditor or a county auditor of one of
118 the participating counties as the designated auditing officer for the combined mental health
119 authorities;
120 (iii) (A) provide for the appointment of the county or district attorney of one of the
121 participating counties as the designated legal officer for the combined mental health
122 authorities; and
123 (B) authorize the designated legal officer to request and receive the assistance of the
124 county or district attorneys of the other participating counties in defending or prosecuting
125 actions within their counties relating to the combined mental health authorities; and
126 (iv) provide for the adoption of management, clinical, financial, procurement,
127 personnel, and administrative policies as already established by one of the participating
128 counties or as approved by the legislative body of each participating county or interlocal board.
129 (d) An agreement for joint mental health services may provide for:
130 (i) joint operation of services and facilities or for operation of services and facilities
131 under contract by one participating local mental health authority for other participating local
132 mental health authorities; and
133 (ii) allocation of appointments of members of the mental health advisory council
134 between or among participating counties.
135 (4) A county governing body may elect to combine the local mental health authority
136 with the local substance abuse authority created in Part 2, Local Substance Abuse Authorities,
137 and the local health department created in Title 26A, Chapter 1, Part 1, Local Health
138 Department Act, to create a united local health department under Section 26A-1-105.5. A local
139 mental health authority that joins with a united local health department shall comply with this
140 part.
141 (5) (a) Each local mental health authority is accountable to the department, the
142 Department of Health, and the state with regard to the use of state and federal funds received
143 from those departments for mental health services, regardless of whether the services are
144 provided by a private contract provider.
145 (b) Each local mental health authority shall comply, and require compliance by its
146 contract provider, with all directives issued by the department and the Department of Health
147 regarding the use and expenditure of state and federal funds received from those departments
148 for the purpose of providing mental health programs and services. The department and
149 Department of Health shall ensure that those directives are not duplicative or conflicting, and
150 shall consult and coordinate with local mental health authorities with regard to programs and
151 services.
152 (6) (a) Each local mental health authority shall:
153 (i) review and evaluate mental health needs and services, including mental health needs
154 and services for:
155 (A) an individual incarcerated in a county jail or other county correctional facility;
156 [
157 (B) an individual who is a resident of the county and who is court ordered to receive
158 assisted outpatient treatment under Section 62A-15-630.5; and
159 (C) an individual who is a resident of the county who is committed to the custody or
160 jurisdiction of the local mental health authority under Section 62A-15-631;
161 (ii) in accordance with Subsection (6)(b), annually prepare and submit to the division a
162 plan approved by the county legislative body for mental health funding and service delivery,
163 either directly by the local mental health authority or by contract;
164 (iii) establish and maintain, either directly or by contract, programs licensed under Title
165 62A, Chapter 2, Licensure of Programs and Facilities;
166 (iv) appoint, directly or by contract, a full-time or part-time director for mental health
167 programs and prescribe the director's duties;
168 (v) provide input and comment on new and revised rules established by the division;
169 (vi) establish and require contract providers to establish administrative, clinical,
170 personnel, financial, procurement, and management policies regarding mental health services
171 and facilities, in accordance with the rules of the division, and state and federal law;
172 (vii) establish mechanisms allowing for direct citizen input;
173 (viii) annually contract with the division to provide mental health programs and
174 services in accordance with the provisions of Title 62A, Chapter 15, Substance Abuse and
175 Mental Health Act;
176 (ix) comply with all applicable state and federal statutes, policies, audit requirements,
177 contract requirements, and any directives resulting from those audits and contract requirements;
178 (x) provide funding equal to at least 20% of the state funds that it receives to fund
179 services described in the plan;
180 (xi) comply with the requirements and procedures of Title 11, Chapter 13, Interlocal
181 Cooperation Act, Title 17B, Chapter 1, Part 6, Fiscal Procedures for Local Districts, and Title
182 51, Chapter 2a, Accounting Reports from Political Subdivisions, Interlocal Organizations, and
183 Other Local Entities Act; and
184 (xii) take and retain physical custody of minors committed to the physical custody of
185 local mental health authorities by a judicial proceeding under Title 62A, Chapter 15, Part 7,
186 Commitment of Persons Under Age 18 to Division of Substance Abuse and Mental Health.
187 (b) Each plan under Subsection (6)(a)(ii) shall include services for adults, youth, and
188 children, which shall include:
189 (i) inpatient care and services;
190 (ii) residential care and services;
191 (iii) outpatient care and services;
192 (iv) 24-hour crisis care and services;
193 (v) psychotropic medication management;
194 (vi) psychosocial rehabilitation, including vocational training and skills development;
195 (vii) case management;
196 (viii) community supports, including in-home services, housing, family support
197 services, and respite services;
198 (ix) consultation and education services, including case consultation, collaboration
199 with other county service agencies, public education, and public information; and
200 (x) services to persons incarcerated in a county jail or other county correctional facility.
201 (7) (a) If a local mental health authority provides for a local mental health crisis line
202 under the plan for 24-hour crisis care and services described in Subsection (6)(b)(iv), the local
203 mental health authority shall:
204 (i) collaborate with the statewide mental health crisis line described in Section
205 62A-15-1302;
206 (ii) ensure that each individual who answers calls to the local mental health crisis line:
207 (A) is a mental health therapist or a crisis worker; and
208 (B) meets the standards of care and practice established by the Division of Substance
209 Abuse and Mental Health, in accordance with Section 62A-15-1302; and
210 (iii) ensure that when necessary, based on the local mental health crisis line's capacity,
211 calls are immediately routed to the statewide mental health crisis line to ensure that when an
212 individual calls the local mental health crisis line, regardless of the time, date, or number of
213 individuals trying to simultaneously access the local mental health crisis line, a mental health
214 therapist or a crisis worker answers the call without the caller first:
215 (A) waiting on hold; or
216 (B) being screened by an individual other than a mental health therapist or crisis
217 worker.
218 (b) If a local mental health authority does not provide for a local mental health crisis
219 line under the plan for 24-hour crisis care and services described in Subsection (6)(b)(iv), the
220 local mental health authority shall use the statewide mental health crisis line as a local crisis
221 line resource.
222 (8) Before disbursing any public funds, each local mental health authority shall require
223 that each entity that receives any public funds from a local mental health authority agrees in
224 writing that:
225 (a) the entity's financial records and other records relevant to the entity's performance
226 of the services provided to the mental health authority shall be subject to examination by:
227 (i) the division;
228 (ii) the local mental health authority director;
229 (iii) (A) the county treasurer and county or district attorney; or
230 (B) if two or more counties jointly provide mental health services under an agreement
231 under Subsection (3), the designated treasurer and the designated legal officer;
232 (iv) the county legislative body; and
233 (v) in a county with a county executive that is separate from the county legislative
234 body, the county executive;
235 (b) the county auditor may examine and audit the entity's financial and other records
236 relevant to the entity's performance of the services provided to the local mental health
237 authority; and
238 (c) the entity will comply with the provisions of Subsection (5)(b).
239 (9) A local mental health authority may receive property, grants, gifts, supplies,
240 materials, contributions, and any benefit derived therefrom, for mental health services. If those
241 gifts are conditioned upon their use for a specified service or program, they shall be so used.
242 (10) Public funds received for the provision of services pursuant to the local mental
243 health plan may not be used for any other purpose except those authorized in the contract
244 between the local mental health authority and the provider for the provision of plan services.
245 (11) (a) A local mental health authority shall provide [
246
247 county who:
248 (i) has been ordered under Section 62A-15-630.5 to receive assisted outpatient
249 treatment[
250 (ii) is committed to the custody or jurisdiction of the local mental health authority
251 under Section 62A-15-631.
252 (b) The mental health services described in Subsection (11)(a) shall include:
253 (i) case management; and
254 (ii) an individualized treatment plan created with input from the resident described in
255 Subsection (11)(a), if possible.
256 (c) A court order described in Subsection (11)(a) does not authorize a local mental
257 health authority to forcibly medicate a resident described under Subsection (11)(a).
258 Section 2. Section 31A-22-651 is amended to read:
259 31A-22-651. Insurance coverage for assisted outpatient treatment and
260 involuntary civil commitment.
261 (1) As used in this section, "assisted outpatient treatment" means the same as that term
262 is defined in Section 62A-15-602.
263 (2) A health insurance provider may not deny an insured the benefits of the insured's
264 policy solely because the health care that the insured receives is provided under a court order
265 for assisted outpatient treatment, as provided in Section 62A-15-630.5, or under a court order
266 for civil commitment, as provided in Section 62A-15-631.
267 Section 3. Section 53-10-208.1 is amended to read:
268 53-10-208.1. Magistrates and court clerks to supply information.
269 (1) Every magistrate or clerk of a court responsible for court records in this state shall,
270 within 30 days of the disposition and on forms and in the manner provided by the division,
271 furnish the division with information pertaining to:
272 (a) all dispositions of criminal matters, including:
273 (i) guilty pleas;
274 (ii) convictions;
275 (iii) dismissals;
276 (iv) acquittals;
277 (v) pleas held in abeyance;
278 (vi) judgments of not guilty by reason of insanity[
279 (vii) judgments of guilty with a mental illness;
280 (viii) finding of mental incompetence to stand trial; and
281 (ix) probations granted;
282 (b) orders of civil commitment under the terms of Section 62A-15-631 and orders of
283 assisted outpatient treatment under the terms of Section 62A-15-630.5;
284 (c) the issuance, recall, cancellation, or modification of all warrants of arrest or
285 commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78B-6-303,
286 within one day of the action and in a manner provided by the division; and
287 (d) protective orders issued after notice and hearing, pursuant to:
288 (i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act;
289 (ii) Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act;
290 (iii) Title 78B, Chapter 7, Part 4, Dating Violence Protection Act; or
291 (iv) Title 78B, Chapter 7, Part 5, Sexual Violence Protection Act.
292 (2) The court in the county where a determination or finding was made shall transmit a
293 record of the determination or finding to the bureau no later than 48 hours after the
294 determination is made, excluding Saturdays, Sundays, and legal holidays, if an individual is:
295 (a) adjudicated as a mental defective; or
296 (b) involuntarily committed [
297 Section 62A-15-631[
298 (3) The record described in Subsection (2) shall include:
299 (a) an agency record identifier;
300 (b) the individual's name, sex, race, and date of birth; and
301 (c) the individual's social security number, government issued driver license or
302 identification number, alien registration number, government passport number, state
303 identification number, or FBI number.
304 Section 4. Section 62A-15-602 is amended to read:
305 62A-15-602. Definitions.
306 As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
307 Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah
308 Forensic Mental Health Facility, Part 10, Declaration for Mental Health Treatment, and Part
309 12, Essential Treatment and Intervention Act:
310 (1) "Adult" means an individual 18 years [
311 (2) "Approved treatment facility or program" means a treatment provider that meets the
312 standards described in Subsection 62A-15-103(2)(a)(v).
313 (3) "Assisted outpatient treatment" means involuntary outpatient mental health
314 treatment ordered under Section 62A-15-630.5.
315 (4) [
316 means that an adult is committed to the custody or jurisdiction of the local mental health
317 authority that governs the mental health catchment area where the adult resides or is found.
318 (5) "Community mental health center" means an entity that provides treatment and
319 services to a resident of a designated geographical area, that operates by or under contract with
320 a local mental health authority, and that complies with state standards for community mental
321 health centers.
322 (6) "Designated examiner" means:
323 (a) a licensed physician, preferably a psychiatrist, who is designated by the division as
324 specially qualified by training or experience in the diagnosis of mental or related illness; or
325 (b) a licensed mental health professional designated by the division as specially
326 qualified by training and who has at least five years' continual experience in the treatment of
327 mental illness.
328 (7) "Designee" means a physician who has responsibility for medical functions
329 including admission and [
330 an employee of a person that has contracted with a local mental health authority to provide
331 mental health services under Section 17-43-304.
332 (8) "Discharge" means:
333 (a) to release an individual from the Utah State Hospital or another secure facility; or
334 (b) to dismiss a court order requiring commitment of a forensic-track patient.
335 [
336 court-ordered treatment at a local substance abuse authority or an approved treatment facility or
337 program for the treatment of an adult's substance use disorder.
338 (10) "Forensic-track patient" means a patient who is civilly committed to a secure
339 facility and whose civil commitment is ordered after a court:
340 (a) finds the patient is incompetent to proceed without a substantial probability that the
341 patient will become competent in the foreseeable future under Section 77-15-6; or
342 (b) finds the patient has served the maximum term of commitment under Subsection
343 77-16a-302(3).
344 [
345 without the individual's consent, including the nonconsensual circumstances described in
346 Subsections 76-5-406 (2)(a) through (l):
347 (a) sexual intercourse;
348 (b) penetration, however slight, of the genital or anal opening of the individual;
349 (c) any sexual act involving the genitals or anus of the actor or the individual and the
350 mouth or anus of either individual, regardless of the gender of either participant; or
351 (d) any sexual act causing substantial emotional injury or bodily pain.
352 [
353 26-21-8.
354 [
355 Section 62A-15-102 and described in Section 17-43-201.
356 [
357 provides mental health services under contract with the division, a local mental health
358 authority, a person that contracts with a local mental health authority, or a person that provides
359 acute inpatient psychiatric services to a patient.
360 [
361 mental health authority as qualified by training and experience in the recognition and
362 identification of mental illness, to:
363 (a) apply for and provide certification for a temporary commitment; or
364 (b) assist in the arrangement of transportation to a designated mental health facility.
365 [
366 (a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
367 behavioral, or related functioning; or
368 (b) the same as that term is defined in:
369 (i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
370 published by the American Psychiatric Association; or
371 (ii) the current edition of the International Statistical Classification of Diseases and
372 Related Health Problems.
373 [
374 (a) [
375 a local mental health authority; or
376 (b) undergoing essential treatment and intervention.
377 [
378 (a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
379 (b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
380 Practice Act.
381 (19) "Qualified examiner" means an individual licensed under Title 58, Chapter 60,
382 Mental Health Professional Practice Act, who is qualified by training and education to conduct
383 a risk assessment.
384 (20) "Qualified mental health therapist" means an individual licensed under Title 58,
385 Chapter 60, Mental Health Professional Practice Act, who:
386 (a) is qualified by training and education in the diagnosis of mental illness or related
387 illnesses; and
388 (b) has at least five years of experience in the treatment of mental illness.
389 (21) "Risk assessment" means a forensic evaluation of a forensic-track patient that
390 considers:
391 (a) whether the forensic-track patient is a danger to self or others;
392 (b) whether the forensic-track patient's mental condition is likely to deteriorate if the
393 forensic-track patient is released from a secure facility resulting in the forensic-track patient
394 being a danger to self or others;
395 (c) any pending criminal charges against the forensic-track patient;
396 (d) the forensic-track patient's criminal history;
397 (e) the risk to the community posed if the forensic-track patient is discharged;
398 (f) the availability of treatment for the forensic-track patient in the community; and
399 (g) whether a local mental health authority is able to provide appropriate treatment to
400 the forensic-track patient.
401 [
402 of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
403 protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
404 [
405 serious risk of:
406 (a) suicide;
407 (b) serious bodily self-injury;
408 (c) serious bodily injury because the individual is incapable of providing the basic
409 necessities of life, including food, clothing, or shelter;
410 (d) causing or attempting to cause serious bodily injury to another individual; or
411 (e) engaging in harmful sexual conduct.
412 [
413 of psychotropic medication, or other medical treatments that are generally accepted medical or
414 psychosocial interventions for the purpose of restoring the patient to an optimal level of
415 functioning in the least restrictive environment.
416 Section 5. Section 62A-15-605 is amended to read:
417 62A-15-605. Forensic Mental Health Coordinating Council -- Establishment and
418 purpose.
419 (1) There is established the Forensic Mental Health Coordinating Council composed of
420 the following members:
421 (a) the director of the Division of Substance Abuse and Mental Health or the director's
422 appointee;
423 (b) the superintendent of the state hospital or the superintendent's appointee;
424 (c) the executive director of the Department of Corrections or the executive director's
425 appointee;
426 (d) a member of the Board of Pardons and Parole or [
427 Parole's appointee;
428 (e) the attorney general or the attorney general's appointee;
429 (f) a county or district attorney or the county attorney or district attorney's appointee
430 from:
431 (i) a county of the first class, as classified in Section 17-50-501; and
432 (ii) a county of the second, third, fourth, fifth, or sixth class, as classified in Section
433 17-50-501;
434 (g) an attorney practicing criminal defense recommended by the Utah Association of
435 Criminal Defense Lawyers;
436 [
437 director's appointee;
438 [
439 appointee;
440 [
441 director's appointee;
442 [
443 [
444 [
445 excluding the state hospital that provides mental health services under contract with the
446 Division of Substance Abuse and Mental Health or a local mental health authority, as
447 appointed by the director of the division;
448 [
449 director's appointee; and
450 [
451 organizations with an interest in the mission described in Subsection (3), as appointed by the
452 members described in Subsections (1)(a) through [
453 (2) [
454 ordinary course of employment, a member who is not employed by the state may not receive
455 compensation or benefits for the member's service, but may receive per diem and travel
456 expenses in accordance with:
457 (a) Section 63A-3-106;
458 (b) Section 63A-3-107; and
459 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
460 63A-3-107.
461 (3) The purpose of the Forensic Mental Health Coordinating Council is to:
462 (a) advise the director regarding the state hospital admissions policy for individuals in
463 the custody of the Department of Corrections;
464 (b) develop policies for coordination between the division and the Department of
465 Corrections;
466 (c) advise the executive director of the Department of Corrections regarding
467 department policy related to the care of individuals in the custody of the Department of
468 Corrections who are mentally ill;
469 (d) promote communication between and coordination among all agencies dealing with
470 individuals with an intellectual disability or mental illness who become involved in the civil
471 commitment system or in the criminal or juvenile justice system;
472 (e) study, evaluate, and recommend changes to laws and procedures relating to
473 individuals with an intellectual disability or mental illness who become involved in the civil
474 commitment system or in the criminal or juvenile justice system;
475 (f) identify and promote the implementation of specific policies and programs to deal
476 fairly and efficiently with individuals with an intellectual disability or mental illness who
477 become involved in the civil commitment system or in the criminal or juvenile justice system;
478 and
479 (g) promote judicial education relating to individuals with an intellectual disability or
480 mental illness who become involved in the civil commitment system or in the criminal or
481 juvenile justice system.
482 Section 6. Section 62A-15-626 is amended to read:
483 62A-15-626. Release from commitment.
484 (1) (a) Subject to Subsection (1)(b), a local mental health authority or the local mental
485 health authority's designee shall release a patient from commitment [
486
487
488 Subsection 62A-15-631(17) and an effort shall be made to assure that any further supportive
489 services required to meet the patient's needs upon release will be provided.
490 (b) A local mental health authority's inability to locate a [
491 may not be the basis for the [
492 the [
493 determination that good cause exists to release the patient.
494 (2) A local mental health authority may conditionally release a patient to a less
495 restrictive environment in accordance with Section 62A-15-637.
496 [
497
498
499
500
501 [
502
503
504 Section 7. Section 62A-15-631 is amended to read:
505 62A-15-631. Civil commitment under court order -- Examination -- Hearing --
506 Power of court -- Findings required -- Release from commitment -- Assisted outpatient
507 treatment -- Costs.
508 (1) A responsible individual who has credible knowledge of an adult's mental illness
509 and the condition or circumstances that have led to the adult's need to be involuntarily
510 committed to the custody of a local mental health authority may initiate an involuntary
511 commitment court proceeding by filing, in the district court in the county where the adult
512 proposed patient resides or is found, a written application that includes:
513 (a) unless the court finds that the information is not reasonably available, the proposed
514 patient's:
515 (i) name;
516 (ii) date of birth; and
517 (iii) social security number;
518 (b) (i) a certificate of a licensed physician [
519 mental health therapist stating that within the seven-day period immediately preceding the
520 certification, the physician [
521 examined the proposed patient and is of the opinion that the proposed patient has a mental
522 illness and should be involuntarily committed to the custody of a local mental health authority;
523 or
524 (ii) a written statement by the applicant that:
525 (A) the proposed patient has been requested to, but has refused to, submit to an
526 examination of mental condition by a licensed physician [
527 qualified mental health therapist;
528 (B) is sworn to under oath; and
529 (C) states the facts upon which the application is based; [
530 (c) a statement whether the proposed patient has previously been under an order for
531 commitment or an assisted outpatient treatment order, if known by the applicant[
532 (d) an explanation of the mental health services provided to the proposed patient under
533 an order described in Subsection (1)(c), if known by the applicant.
534 (2) (a) Subject to Subsection (2)(b), before issuing a judicial order, the court may
535 require the applicant to consult with the appropriate local mental health authority or the local
536 mental health authority's designee, and the court may direct a qualified mental health
537 [
538 and the proposed patient to determine the existing facts and report them to the court.
539 (b) The consultation described in Subsection (2)(a):
540 (i) may take place at or before the hearing; and
541 (ii) is required if the local mental health authority or the local mental health authority's
542 designee appears at the hearing.
543 (3) [
544
545
546
547
548
549 mental health officer or peace officer, to immediately take physical custody of the proposed
550 patient and place the proposed patient in the custody of a local mental health authority [
551 in the physical custody of a temporary emergency facility as provided in Section 62A-15-634 to
552 be detained for the purpose of examination[
553 (a) the court finds from the application, any other statements under oath, or any reports
554 from a mental health professional that there is a reasonable basis to believe that the proposed
555 patient has a mental illness that poses a substantial danger to self or others requiring
556 involuntary commitment pending examination and hearing; or
557 (b) the proposed patient refuses to submit to an interview with a mental health
558 professional as directed by the court or go to a treatment facility voluntarily.
559 (4) (a) Notice of commencement of proceedings for involuntary commitment, setting
560 forth the allegations of the application and any reported facts, together with a copy of any
561 official order of detention, shall:
562 (i) be provided by the court to a proposed patient:
563 (A) before, or upon, placement in the custody of a local mental health authority under
564 Subsection (3); or[
565 (B) with respect to any proposed patient presently [
566 local mental health authority whose status is being changed from voluntary to involuntary,
567 upon the filing of an application for that purpose with the court[
568
569 [
570 (ii) be provided by the court as soon as practicable to the applicant, any legal guardian,
571 any immediate adult family members, legal counsel for the parties involved, the local mental
572 health authority or [
573 whom the proposed patient or the court shall designate[
574 (iii) advise [
575 [
576 (b) A copy of the order of detention shall be maintained at the proposed patient's place
577 of detention.
578 (c) The court shall determine the extent of the notice if the proposed patient has refused
579 to permit release of information necessary for provisions of notice under this [
580
581 [
582 local mental health authority may be commenced in accordance with Part 7, Commitment of
583 Persons Under Age 18 to Division of Substance Abuse and Mental Health.
584 [
585 to any other district court within this state, provided that the transfer will not be adverse to the
586 interest of the proposed patient.
587 [
588 the [
589 day on which a proposed patient is committed to the custody of a local mental health authority
590 or [
591
592 (a) who did not sign the civil commitment application nor the civil commitment
593 certification under Subsection (1);
594 (b) one of whom is a licensed physician or qualified mental health therapist; and
595 (c) one of whom may be designated by the proposed patient or the proposed patient's
596 counsel, if that designated examiner is reasonably available.
597 [
598 after the day on which the designated examiners are appointed.
599 [
600 [
601 [
602 other medical facility, or at any other suitable place that is not likely to have a harmful effect on
603 the proposed patient's health;
604 [
605 [
606 [
607 [
608 [
609 proposed patient's involuntary commitment;
610 [
611 court; and
612 [
613 patient's mental health records; and
614 [
615 orally or in writing, whether the proposed patient is mentally ill, has agreed to voluntary
616 commitment, as described in Section 62A-15-625, or has acceptable treatment programs
617 available to the proposed patient without court proceedings.
618 (b) If the designated examiner reports orally, the designated examiner shall
619 immediately send a written report to the clerk of the court.
620 [
621 attempt because the proposed patient refuses to submit to the examination, the court shall fix a
622 reasonable compensation to be paid to the examiner.
623 [
624 designee, or a [
625 conditions justifying the findings leading to a commitment hearing no longer exist, the local
626 mental health authority, [
627 designated examiner shall immediately report [
628 [
629 time, including [
630 designated examiners or the local mental health authority or [
631 authority's designee informs the court that the proposed patient:
632 (a) is not mentally ill;
633 (b) has agreed to voluntary commitment, as described in Section 62A-15-625; or
634 (c) has acceptable options for treatment programs that are available without court
635 proceedings.
636 [
637 opportunity to be represented by counsel [
638 neither the proposed patient nor others provide counsel, the court shall appoint counsel and
639 allow counsel sufficient time to consult with the proposed patient before the hearing.
640 (b) In the case of an indigent proposed patient, the county in which the proposed
641 patient resides or is found shall make payment of reasonable attorney fees for counsel, as
642 determined by the court[
643
644 [
645 other persons to whom notice is required to be given [
646 appear at the hearing, to testify, and to present and cross-examine witnesses.
647 (ii) The court may, in [
648 interested person.
649 (iii) The court may allow a waiver of the proposed patient's right to appear only for an
650 individualized showing of good cause [
651 record.
652 (b) The court is authorized to exclude all [
653 conduct of the proceedings and may, upon motion of counsel for the proposed patient or upon
654 request by the local mental health authority or the local mental health authority's designee,
655 require the testimony of each examiner to be given out of the presence of any other examiners.
656 (c) The court shall conduct the hearing [
657 may be consistent with orderly procedure, and in a physical setting that is not likely to have a
658 harmful effect on the mental health of the proposed patient.
659 (d) The court shall consider all relevant historical and material information that is
660 offered, subject to the rules of evidence, including reliable hearsay under Rule 1102, Utah
661 Rules of Evidence.
662 (e) (i) A local mental health authority [
663 designee, the applicant, or the physician or qualified mental health therapist in charge of the
664 proposed patient's [
665 following information, if known or available:
666 (A) the detention order;
667 (B) admission notes;
668 (C) the diagnosis;
669 (D) any doctors' orders;
670 (E) progress notes;
671 (F) nursing notes;
672 (G) medication records pertaining to the current commitment; [
673 (H) whether the proposed patient has previously been [
674 order for commitment or an order for assisted outpatient treatment[
675 (I) an explanation of the mental health services provided to the proposed patient under
676 an order described in Subsection (14)(e)(i)(H).
677 (ii) (A) Subject to the requirements of HIPAA, as defined in Section 26-18-17, the
678 court may, on a showing of good cause, issue a subpoena for medical or mental health records
679 of a proposed patient that are not provided under Subsection (14)(e)(i).
680 (B) Good cause exists under Subsection (14)(e)(ii)(A) if the court finds additional
681 medical or mental health records are necessary for the court to determine whether commitment
682 of the proposed patient is justified.
683 (C) The court may issue a protective order limiting a person from producing or sharing
684 the information in the medical or mental health records and limiting the use of the records to
685 purposes related to the commitment proceedings for the proposed patient.
686 [
687 [
688 (A) at the time of the hearing[
689 (B) at any time [
690 [
691
692 upon completion of the hearing and consideration of the information presented, the court finds
693 by clear and convincing evidence that:
694 [
695 [
696 substantial danger to self or others;
697 [
698 process regarding the acceptance of mental treatment as demonstrated by evidence of inability
699 to weigh the possible risks of accepting or rejecting treatment;
700 [
701 commitment; and
702 [
703 treatment that is adequate and appropriate to the proposed patient's conditions and needs. [
704
705
706 (b) (i) If, at the hearing described in Subsection (15)(a), the court determines that the
707 proposed patient has a mental illness but does not meet the other conditions described in
708 Subsection (15)(a), the court may consider whether the proposed patient meets the conditions
709 for assisted outpatient treatment under Subsection 62A-15-630.5(14).
710 (ii) The court shall order the proposed patient receive assisted outpatient treatment if,
711 at the hearing described in Subsection (15)(a), the court finds the proposed patient meets the
712 conditions for assisted outpatient treatment under Subsection 62A-15-630.5(14).
713 (16) If the court determines that neither the conditions for commitment under
714 Subsection (15)(a) or assisted outpatient treatment under Subsection (14) are met, the court
715 shall dismiss the proceedings after the hearing described in Subsection (15)(a).
716 (17) (a) (i) The order of commitment shall designate the period for which the patient
717 shall be treated.
718 (ii) When the patient is not under an order of commitment at the time of the hearing,
719 [
720 [
721 (iii) Upon [
722
723 may be for an indeterminate period, if the court finds by clear and convincing evidence that the
724 required conditions described in Subsection [
725 (b) The court shall:
726 (i) maintain a current list of all patients under [
727
728 (ii) review the list to determine those patients who have been under an order of
729 commitment for the designated period[
730 (iii) at least 30 days before the day on which the designated period of any order of
731 commitment [
732 appropriate local mental health authority or [
733 the expiration.
734 (c) (i) The local mental health authority or [
735 designee that is responsible for a patient under an order of commitment for a designated period
736 of time shall [
737 commitment was based[
738
739
740
741
742 information described in Subsection (17)(b)(ii).
743 (ii) The local mental health authority or the local mental health authority's designee
744 responsible for a patient under an order of commitment for an indeterminate period shall
745 examine the reasons upon which the order of commitment was based in accordance with
746 Section 62A-15-636 and at least every six months.
747 [
748
749
750
751
752
753
754
755
756
757
758
759
760 (d) (i) If, after examination, the local mental health authority or the local mental health
761 authority's designee determines that continued commitment of a patient is justified, the local
762 mental health authority or the local mental health authority's designee shall send a written
763 report of the determination to the court that issued the original order of commitment.
764 (ii) The local mental health authority or the local mental health authority's designee
765 shall notify, in writing, the patient and all counsel of record:
766 (A) of the reasons for the determination under Subsection (17)(d)(i); and
767 (B) that the patient may request a review hearing by making a request to the court.
768 (iii) Upon receipt of the request described in Subsection (17)(d)(ii)(B), the court shall
769 immediately:
770 (A) appoint two designated examiners; and
771 (B) proceed in accordance with Subsections (7) through (13).
772 (e) If the local mental health authority or the local mental health authority's designee
773 determines after examination of a patient that the conditions justifying commitment of the
774 patient no longer exist, the local mental health authority or the local mental health authority's
775 designee shall release the patient from custody or jurisdiction of the local mental health
776 authority and immediately report the release to the court.
777 (f) (i) If the local mental health authority or the local mental health authority's designee
778 determines after examination of a forensic-track patient that the forensic-track patient will be
779 eligible for discharge at a future date, the local mental health authority or the local mental
780 health authority's designee shall notify the following persons that the forensic-track patient will
781 be discharged at least 60 days before the day on which the local mental health authority or the
782 local mental health authority's designee authorizes the forensic-track patient will be discharged:
783 (A) the court that adjudicated the forensic-track patient incompetent to proceed or not
784 guilty by reason of insanity;
785 (B) the court that originally ordered the forensic-track patient be civilly committed; and
786 (C) all counsel of record in the cases described in Subsections (17)(f)(i)(A) and (B).
787 (ii) (A) After receiving the notice described in Subsection (17)(f)(i), the court or
788 counsel of record may request a risk assessment of the forensic-track patient be completed by a
789 designated examiner or a qualified examiner at the court or counsel's expense.
790 (B) If the court or counsel of record requests a risk assessment of the forensic-track
791 patient, the court or counsel shall, within 15 days after the day on which the court or counsel
792 receives the notice described in Subsection (17)(f)(i), notify all other persons described in
793 Subsection (17)(f)(i) of the request.
794 (iii) (A) The designated examiner or a qualified examiner shall complete the risk
795 assessment and submit the risk assessment to the court or counsel who requested the risk
796 assessment within 30 days after the day on which the designated examiner or other qualified
797 examiner is retained by the court or counsel of record.
798 (B) The risk assessment described in Subsection (17)(f)(iii)(A) shall include the
799 designated examiner's or qualified examiner's name and qualifications, a brief summary of all
800 data and other information the designated examiner or qualified examiner relied upon in
801 completing the risk assessment, and the compensation to be paid to the designated examiner or
802 qualified examiner for the risk assessment.
803 (iv) After receiving the risk assessment, the court or counsel of record shall:
804 (A) immediately notify the persons described in Subsection (17)(f)(i) of receipt of the
805 risk assessment; and
806 (B) provide each of the persons described in Subsection (17)(f)(i) a copy of the risk
807 assessment.
808 (v) (A) The court shall conduct a hearing on the issue of discharge of the forensic-track
809 patient within 15 days after the day on which the court receives a copy of the risk assessment.
810 (B) The court may reschedule the hearing for good cause if the rescheduling does not
811 unreasonably extend the forensic-track patient's anticipated date of discharge.
812 (vi) (A) If, after the hearing described in Subsection (17)(f)(v), the court determines
813 that the conditions justifying commitment of the forensic-track patient no longer exist, the
814 court shall order the forensic-track patient be discharged.
815 (B) If, after the hearing described in Subsection (17)(f)(v), the court determines that the
816 conditions justifying commitment of the forensic-track patient will not exist on the
817 forensic-track patient's anticipated date of discharge, the court shall order the forensic-track
818 patient be discharged on the forensic-track patient's anticipated date of discharge.
819 (C) If, after the hearing described in Subsection (17)(f)(v), the court determines that
820 commitment of the forensic-track patient is justified, the court shall order the commitment
821 continue in accordance with Subsection (17)(a).
822 (vii) (A) If counsel of record for a forensic-track patient does not enter a renewed
823 appearance within 10 days after the day on which the notice described in Subsection (17)(f)(i)
824 is sent, the court shall appoint counsel for the forensic-track patient in accordance with
825 Subsection (13).
826 (B) For purposes of Subsections (17)(f)(ii) through (vi), counsel appointed under
827 Subsection (17)(f)(vii)(A) is deemed to have received the notice described in Subsection
828 (17)(f)(i) on the day on which the counsel is appointed by the court.
829 (viii) The process described in this Subsection (17)(f):
830 (A) may not delay a forensic-track patient's anticipated date of discharge under
831 Subsection (17)(f)(i); or
832 (B) prohibit a forensic-track patient's release under Subsection (17)(e).
833 (18) (a) Any patient committed as a result of an original hearing or a patient's legally
834 designated representative who is aggrieved by the findings, conclusions, and order of the court
835 entered in the original hearing has the right to a new hearing upon a petition filed with the court
836 within 30 days [
837 (b) The petition described in Subsection (18)(a) must allege error or mistake in the
838 findings, in which case the court shall appoint three impartial designated examiners previously
839 unrelated to the case to conduct an additional examination of the patient.
840 (c) The new hearing shall, in all other respects, be conducted in the manner otherwise
841 permitted.
842 (19) [
843 resides or is found shall pay the costs of all proceedings under this section [
844
845 (20) As provided in Section 31A-22-651, a health insurance provider may not deny an
846 insured the benefits of the insured's policy solely because the health care that the insured
847 receives is provided under a court order for civil commitment.
848 Section 8. Section 62A-15-632 is amended to read:
849 62A-15-632. Circumstances under which conditions justifying initial involuntary
850 commitment shall be considered to continue to exist.
851 (1) After an individual is involuntarily committed to the custody of a local mental
852 health authority under Subsection 62A-15-631[
853 commitment under [
854 continue to exist, for purposes of continued treatment under Subsection 62A-15-631(17) or
855 conditional release to a less restrictive environment under Section 62A-15-637, unless:
856 (a) the court terminates the civil commitment through a review hearing; or
857 (b) the local mental health authority or a designee of the local mental health authority
858 with custody over the patient [
859 [
860
861 (2) A patient whose treatment is continued or who is conditionally released to a less
862 restrictive environment under Section 62A-15-637 shall be maintained in the least restrictive
863 environment available that can provide the patient with the treatment that is adequate and
864 appropriate.
865 (3) Except for on an individualized showing of good cause, a court may not terminate a
866 civil commitment through a review hearing if the patient:
867 (a) is under a conditional release agreement; and
868 (b) does not appear at the review hearing.
869 Section 9. Section 62A-15-636 is amended to read:
870 62A-15-636. Periodic review.
871 (1) Each local mental health authority or [
872 designee shall, as frequently as practicable, examine or cause to be examined every [
873
874
875
876
877
878 (2) A local mental health authority or the local mental health authority's designee shall
879 proceed in accordance with Subsection 62A-15-631(17) if the local mental health authority or
880 the local mental health authority's designee:
881 (a) determines after examination that the conditions justifying a patient's commitment
882 no longer exist; or
883 (b) anticipates after examination that a forensic-track patient will be eligible for
884 discharge at a future date.
885 Section 10. Section 62A-15-637 is amended to read:
886 62A-15-637. Release of patient to receive other treatment -- Placement in more or
887 less restrictive environment -- Procedures.
888 (1) A local mental health authority or a designee of a local mental health authority may
889 conditionally release an improved patient to a less restrictive [
890 (a) the authority specifies the less restrictive treatment; and
891 (b) the patient agrees in writing to the less restrictive [
892 [
893
894
895 [
896
897
898 [
899 authority is authorized to issue an order for the immediate placement of a current patient into a
900 more restrictive environment, if:
901 (i) the local mental health authority or a designee of a local mental health authority has
902 reason to believe that the patient's current environment is aggravating the patient's mental
903 illness; or
904 (ii) the patient has failed to comply with the specified treatment plan to which the
905 patient agreed in writing.
906 (b) An order for a more restrictive environment shall:
907 (i) state the reasons for the order;
908 (ii) authorize any peace officer to take the patient into physical custody and transport
909 the patient to a facility designated by the local mental health authority;
910 (iii) inform the patient of the right to a hearing, the right to appointed counsel, and the
911 other procedures described in Subsection 62A-15-631[
912 (iv) [
913 imposition of additional or different requirements as conditions for continued conditional
914 release from inpatient care, [
915 (A) the patient;
916 (B) the person in whose care the patient is placed;
917 (C) the patient's counsel of record; and
918 (D) the court that entered the original order of commitment.
919 (c) (i) If the patient [
920 is aggrieved by the change to a more restrictive environment, the patient or the patient's
921 representative may request a hearing within 30 days [
922 change is made.
923 (ii) Upon receiving the request described in Subsection (2)(c)(i), the court shall
924 immediately appoint two designated examiners and proceed pursuant to Section 62A-15-631,
925 with the exception of Subsection 62A-15-631[
926 the patient is returned to the less restrictive environment or the patient withdraws the request
927 for a hearing, in writing.
928 (d) The court shall:
929 (i) make findings regarding whether the conditions described in Subsections [
930 (2)(a) and (b) were met and whether the patient is in the least restrictive environment that is
931 appropriate for the patient's needs; and
932 (ii) designate, by order, the environment for the patient's care and the period for which
933 the patient shall be treated, which may not extend beyond expiration of the original order of
934 commitment.
935 [
936 mental health authority or [
937
938 Section 62A-15-631 or from placing a patient in an environment that is less restrictive than that
939 ordered by the court.
940 Section 11. Section 62A-15-643 is amended to read:
941 62A-15-643. Confidentiality of information and records -- Exceptions -- Penalty.
942 (1) All certificates, applications, records, and reports made for the purpose of this part,
943 including those made on judicial proceedings for [
944 or indirectly identify a patient or former patient or an individual whose commitment has been
945 sought under this part, shall be kept confidential and may not be disclosed by any person
946 [
947 (a) the individual identified or [
948 minor, [
949 (b) disclosure may be necessary to [
950 (i) carry out the provisions of this part[
951 (ii) assist a mental health officer or peace officer to locate and transport to a treatment
952 facility or behavioral health receiving center an individual who:
953 (A) is under a court order for civil commitment or assisted outpatient treatment;
954 (B) has missed two or more court-ordered review hearings relating to the order
955 described in Subsection (1)(a)(ii)(A); and
956 (C) if untreated, is likely to experience deterioration in a mental condition that results
957 in the individual being a danger to self or others; or
958 (c) a court [
959 disclosure is necessary for the conduct of proceedings before [
960 make the disclosure would be contrary to the public interest.
961 (2) A person who knowingly or intentionally discloses any information not authorized
962 by this section is guilty of a class B misdemeanor.
963 Section 12. Section 77-15-2 is amended to read:
964 77-15-2. Definitions.
965 As used in this chapter:
966 (1) "Brain injury" means the same as that term is defined in Section 62A-5-101.
967 [
968 evaluator to determine if an individual is competent to stand trial.
969 [
970 (a) a rational and factual understanding of the criminal proceedings against the
971 defendant and of the punishment specified for the offense charged; and
972 (b) the ability to consult with the defendant's legal counsel with a reasonable degree of
973 rational understanding in order to assist in the defense.
974 [
975 [
976 (a) is not involved in the defendant's treatment; [
977 (b) is trained and qualified [
978 restoration screening, and a progress toward competency evaluation[
979 experience, or education relating to:
980 (i) intellectual functioning, psychopathology, or other similar conditions; and
981 (ii) the legal system and the rights of a defendant in a criminal trial; and
982 (c) demonstrates ongoing education and training relating to forensic mental health in
983 accordance with rules established by the department in accordance with Title 63G, Chapter 3,
984 Utah Administrative Rulemaking Act.
985 [
986 trial as a result of a mental illness, intellectual disability, brain injury, or a related condition.
987 (7) "Intellectual disability" means the same as that term is defined in Section
988 78A-6-105.
989 (8) "Mental illness" means the same as that term is defined in Section 62A-15-602.
990 [
991 is competent to stand trial.
992 [
993 whether an individual who is receiving restoration treatment is:
994 (a) competent to stand trial;
995 (b) incompetent to proceed but has a substantial probability of becoming competent to
996 stand trial in the foreseeable future; or
997 (c) incompetent to proceed and does not have a substantial probability of becoming
998 competent to stand trial in the foreseeable future.
999 (11) "Related condition" means the same as that term is defined in Section 78A-6-105.
1000 [
1001 be incompetent to stand trial for the purpose of determining the appropriate placement and
1002 restoration treatment for the individual.
1003 [
1004 (a) provided to an individual who is incompetent to proceed;
1005 (b) tailored to the individual's particular impairment to competency; and
1006 (c) limited to the purpose of restoring the individual to competency.
1007 Section 13. Section 77-15-3 is amended to read:
1008 77-15-3. Petition for inquiry regarding defendant -- Filing -- Contents.
1009 (1) When a defendant charged with a public offense [
1010
1011
1012 is pending [
1013 (2) (a) The petition shall contain:
1014 (i) a certificate that [
1015 believe the defendant is incompetent to proceed[
1016 (ii) a recital of the facts, observations, and conversations with the defendant that have
1017 formed the basis for the petition.
1018 (b) If filed by defense counsel, the petition may not disclose information in violation of
1019 the attorney-client privilege.
1020 [
1021 be filed by the defendant, any person acting on behalf of the defendant, the prosecuting
1022 attorney, or any person having custody or supervision over the defendant.
1023 Section 14. Section 77-15-3.5 is amended to read:
1024 77-15-3.5. Incompetent to proceed in misdemeanor cases.
1025 (1) When a defendant charged with a misdemeanor [
1026 proceed, a petition [
1027
1028 (2) If the most severe charge against a defendant is a misdemeanor and the defendant is
1029 adjudicated by a court as incompetent to proceed:
1030 (a) the department shall provide restoration treatment to the defendant; and
1031 (b) the court may refer the defendant to pretrial diversion services, upon agreement of
1032 the prosecution and defense counsel.
1033 (3) Unless the prosecutor or another individual indicates that civil commitment
1034 proceedings will be initiated under Subsection 77-15-6(5)(c), a court shall release a defendant
1035 who is incompetent to proceed if:
1036 (a) the most severe charge against the defendant is no more severe than a class B
1037 misdemeanor;
1038 (b) more than [
1039 defendant incompetent to proceed; and
1040 (c) the defendant has not been restored to competency.
1041 (4) A court may dismiss the charges against a defendant who [
1042 Subsection (3).
1043 Section 15. Section 77-15-4 is amended to read:
1044 77-15-4. Court may raise issue of competency at any time -- Findings regarding
1045 competency.
1046 (1) The court in which a charge is pending may raise the issue of a defendant's
1047 competency at any time.
1048 (2) If raised by the court, the court shall:
1049 (a) permit counsel for each party to address the issue of competency[
1050 (b) make a finding regarding whether there is a bona fide doubt as to the defendant's
1051 competency to stand trial.
1052 Section 16. Section 77-15-5 is amended to read:
1053 77-15-5. Order for hearing -- Stay of other proceedings -- Examinations of
1054 defendant -- Scope of examination and report.
1055 (1) A court in which criminal proceedings are pending shall stay all criminal
1056 proceedings, if:
1057 (a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
1058 (b) the court:
1059 (i) raises the issue of the defendant's competency under Section 77-15-4[
1060 (ii) makes a finding that there is a bona fide doubt as to the defendant's competency to
1061 stand trial under Section 77-15-4.
1062 (2) The court in which the petition described in Subsection (1)(a) is filed:
1063 (a) shall inform the court in which criminal proceedings are pending of the petition, if
1064 the petition is not filed in the court in which criminal proceedings are pending;
1065 (b) shall review the allegations of incompetency;
1066 (c) may hold a limited hearing solely for the purpose of determining the sufficiency of
1067 the petition, if the court finds the petition is not clearly sufficient on [
1068 (d) shall hold a hearing, if the petition is opposed by either party; and
1069 (e) may not order an examination of the defendant or order a hearing on the mental
1070 condition of the defendant unless the court finds that the allegations in the petition raise a bona
1071 fide doubt as to the defendant's competency to stand trial[
1072 (3) The parties' stipulation to a bona fide doubt about the defendant's competency to
1073 stand trial may not take the place of a petition under this section.
1074 [
1075 to the defendant's competency to stand trial, the court shall order[
1076 [
1077 for the defendant in accordance with Subsection (4)(b).
1078 (b) The court shall order the department to have the defendant evaluated by one
1079 forensic evaluator[
1080 unless:
1081 [
1082
1083
1084 [
1085 [
1086 [
1087 capital felony, and the court determines, based upon the allegations in the petition, that good
1088 cause exists to order a second competency evaluation [
1089 [
1090
1091 [
1092 [
1093 (c) (i) This section does not prohibit a party from seeking an additional forensic
1094 evaluator to conduct a competency evaluation of the defendant.
1095 (ii) If a party seeks an additional competency evaluation under this Subsection (4)(c),
1096 the party shall:
1097 (A) select the additional forensic evaluator; and
1098 (B) pay the costs of the additional forensic evaluator.
1099 (d) The parties' stipulation to a bona fide doubt about the defendant's competency to
1100 stand trial may not take the place of a competency evaluation ordered under this Subsection (4).
1101 [
1102 defendant may have [
1103 brain injury, or a related condition, at least one forensic evaluator who is experienced in
1104 [
1105 or related conditions shall conduct a competency evaluation.
1106 (b) The petitioner or other party, as directed by the court or requested by the
1107 department, shall provide to the forensic evaluator nonmedical information and materials
1108 relevant to a determination of the defendant's competency, including the charging document,
1109 arrest or incident reports pertaining to the charged offense, and known criminal history
1110 information[
1111 (c) For purposes of a competency evaluation, a [
1112 custodian of mental health records pertaining to the defendant [
1113 including the defendant's prior mental health evaluations or records relating to the defendant's
1114 substance use disorder, may provide the records to:
1115 (i) with the defendant's consent, [
1116
1117 (ii) a forensic evaluator by court order.
1118 (d) A court order under Subsection (5)(c) shall include a protective order that expires
1119 30 days after the day on which:
1120 (i) the defendant is found guilty;
1121 (ii) the defendant enters a guilty plea; or
1122 (iii) the court sentences the defendant.
1123 (e) Except as provided in Subsection (5)(f), the court shall order the forensic evaluator
1124 to destroy all records subject to a protective order within the 30-day period described in
1125 Subsection (5)(d).
1126 (f) The court may extend the protective order described in Subsection (5)(d) if:
1127 (i) (A) the court finds the defendant is incompetent to proceed with a substantial
1128 probability that the defendant will become competent in the foreseeable future;
1129 (B) the court commits the individual to the department for restoration treatment; and
1130 (C) the court orders the records be maintained and used by the department only for
1131 purposes of the defendant's restoration treatment; or
1132 (ii) (A) the court finds the defendant incompetent to proceed without a substantial
1133 probability that the defendant will become competent in the foreseeable future;
1134 (B) the prosecutor or another individual indicates to the court that the prosecutor or
1135 individual will seek civil commitment of the defendant under Section 77-15-6; and
1136 (C) the court orders the records be maintained and used only for purposes of examining
1137 the defendant in connection with a petition for civil commitment.
1138 [
1139 inquiry into the mental state of the defendant that is not described in Subsection (5)(a).
1140 [
1141 otherwise, the defendant shall be retained in the same custody or status that the defendant was
1142 in at the time the [
1143 [
1144
1145 addition to any other factors determined to be relevant by the forensic evaluator:
1146 (a) the defendant's present ability to:
1147 (i) rationally and factually understand the criminal proceedings against the defendant;
1148 (ii) consult with the defendant's legal counsel with a reasonable degree of rational
1149 understanding in order to assist in the defense;
1150 (iii) understand the charges or allegations against the defendant;
1151 (iv) communicate facts, events, and states of mind;
1152 (v) understand the range of possible penalties associated with the charges or allegations
1153 against the defendant;
1154 (vi) engage in reasoned choice of legal strategies and options;
1155 (vii) understand the adversarial nature of the proceedings against the defendant;
1156 (viii) manifest behavior sufficient to allow the court to proceed; and
1157 (ix) testify relevantly, if applicable;
1158 (b) the impact of [
1159 or related condition, if any, on the nature and quality of the defendant's relationship with
1160 counsel;
1161 (c) if psychoactive medication is currently being administered:
1162 (i) whether the medication is necessary to maintain the defendant's competency; and
1163 (ii) whether the medication may have an effect on the defendant's demeanor, affect, and
1164 ability to participate in the proceedings; and
1165 (d) whether the defendant is exhibiting false or exaggerated physical or psychological
1166 symptoms relevant to the defendant's capacity to stand trial.
1167 [
1168 proceed, the forensic evaluator shall indicate in the report to the court:
1169 (a) the factors that contribute to the defendant's incompetency, including the nature of
1170 the defendant's mental [
1171 injury, or related condition, if any, and its relationship to the factors contributing to the
1172 defendant's incompetency; and
1173 (b) whether there is a substantial probability that restoration treatment [
1174 the foreseeable future, bring the defendant to competency to stand trial, or that the defendant
1175 cannot become competent to stand trial in the foreseeable future.
1176 [
1177 prosecuting and defense attorneys within 30 days [
1178
1179 inform the court of the examiner's opinion concerning the competency of the defendant to stand
1180 trial.
1181 (b) (i) If the forensic evaluator is unable to complete the report in the time specified in
1182 Subsection [
1183 (ii) A forensic evaluator who provides the notice described in Subsection [
1184 shall receive a 15-day extension, giving the forensic evaluator a total of 45 days after the day
1185 on which the forensic evaluator received the court's order to conduct a competency evaluation
1186 and file a report.
1187 (iii) The court may further extend the deadline for completion of the evaluation and
1188 report if the court determines that there is good cause for the extension.
1189 (iv) Upon receipt of an extension described in Subsection [
1190 evaluator shall file the report as soon as reasonably possible.
1191 [
1192 (a) identify the case ordered for evaluation by the case number;
1193 (b) state the forensic evaluator's name and qualifications;
1194 [
1195 the purpose [
1196 defendant for purposes of the examination;
1197 [
1198 each [
1199
1200 (7)(a) and (b);
1201 [
1202 the basis for the forensic evaluator's clinical findings and opinions[
1203 (f) state the compensation to be paid to the forensic evaluator for the report.
1204 [
1205 examination, whether the examination is with or without the consent of the defendant, any
1206 testimony by a forensic evaluator based upon the statement, and any other fruits of the
1207 statement may not be admitted in evidence against the defendant in any criminal proceeding
1208 except on an issue respecting mental condition on which the defendant has introduced
1209 evidence[
1210 determination of the defendant's competency.
1211 (b) Before examining the defendant, the forensic evaluator shall specifically advise the
1212 defendant of the limits of confidentiality as provided under Subsection [
1213 [
1214 for a competency hearing[
1215 15 days after the day on which the court received the forensic evaluators' reports, unless for
1216 good cause the court sets a later date.
1217 (b) Any person directed by the department to conduct the competency evaluation may
1218 be subpoenaed to testify at the hearing.
1219 (c) (i) The court may call any forensic evaluator to testify at the hearing who is not
1220 called by the parties.
1221 (ii) If the court calls a forensic evaluator to testify, counsel for the parties may
1222 cross-examine the forensic evaluator.
1223 (d) (i) If the forensic evaluators are in conflict as to the competency of the defendant,
1224 all forensic evaluators should be called to testify at the hearing if reasonably available.
1225 (ii) A conflict in the opinions of the forensic evaluators does not require the
1226 appointment of an additional forensic evaluator unless the court [
1227 for the appointment [
1228 [
1229 court, by a preponderance of the evidence, finds the defendant incompetent to proceed.
1230 (ii) The burden of proof is upon the proponent of incompetency at the hearing.
1231 (b) An adjudication of incompetent to proceed does not operate as an adjudication of
1232 incompetency to give informed consent for medical treatment or for any other purpose, unless
1233 specifically set forth in the court order.
1234 [
1235 consider the totality of the circumstances, which may include the testimony of lay witnesses, in
1236 addition to the forensic evaluator's report, testimony, and studies.
1237 [
1238 (a) the court shall issue the order [
1239 77-15-6(1), which shall:
1240 (i) include findings addressing each of the factors in Subsection [
1241 (ii) include a transportation order, if necessary;
1242 (iii) be accompanied by the forensic evaluators' reports, any psychiatric, psychological,
1243 or social work reports submitted to the court relative to the mental condition of the defendant,
1244 and any other documents made available to the court by either the defense or the prosecution,
1245 pertaining to the defendant's current or past mental condition; and
1246 (iv) be sent by the court to the department; and
1247 (b) the prosecuting attorney shall provide to the department:
1248 (i) the charging document and probable cause statement, if any;
1249 (ii) arrest or incident reports prepared by law enforcement and pertaining to the
1250 charged offense; and
1251 (iii) additional supporting documents.
1252 [
1253 section.
1254 [
1255 criminal charges.
1256 Section 17. Section 77-15-6 is amended to read:
1257 77-15-6. Commitment on finding of incompetency to stand trial -- Subsequent
1258 hearings -- Notice to prosecuting attorneys.
1259 (1) (a) Except as provided in Subsection (5), if after a hearing a court finds a defendant
1260 [
1261
1262 the defendant is:
1263 (i) incompetent to proceed, with a substantial probability that the defendant will
1264 become competent in the foreseeable future; or
1265 (ii) incompetent to proceed, without a substantial probability that the defendant will
1266 become competent in the foreseeable future.
1267 (b) (i) If the court finds a defendant is incompetent to proceed under Subsection
1268 (1)(a)(i), the court shall order the defendant be committed to the department for restoration
1269 treatment.
1270 (ii) If the court finds a defendant is incompetent to proceed under Subsection (1)(a)(ii),
1271 the court shall proceed in accordance with Subsections (7) through (12).
1272 [
1273 recommend but may not order placement of [
1274 to proceed under Subsection (1)(a)(i).
1275 (B) The court may[
1276 rather than a nonsecure setting.
1277 (ii) Following restoration screening, the department's designee shall designate and
1278 inform the court of the specific placement and restoration treatment program for the defendant.
1279 [
1280 (i) restore the [
1281 (ii) determine whether the [
1282 foreseeable future.
1283 [
1284 Subsection (1)(a)(i) may not be held for restoration treatment longer than:
1285 (i) the time reasonably necessary to determine [
1286
1287 that the defendant cannot become competent to stand trial in the foreseeable future; and
1288 (ii) the maximum period of incarceration that the defendant could receive if the
1289 defendant were convicted of the most severe offense of the offenses charged.
1290 (2) (a) A defendant who is receiving restoration treatment shall receive a progress
1291 toward competency evaluation, by:
1292 (i) a forensic evaluator, designated by the department; and
1293 (ii) an additional forensic evaluator, if requested by a party and paid for by the
1294 requesting party.
1295 (b) (i) A forensic evaluator shall complete a progress toward competency evaluation
1296 and submit a report within 90 days after the day on which the forensic evaluator receives the
1297 commitment order from the department.
1298 (ii) If the forensic evaluator is unable to complete the report within the 90 [
1299 period described in Subsection (2)(b)(i), the forensic evaluator shall provide to the court and
1300 counsel a summary progress statement that informs the court that additional time is necessary
1301 to complete the report, in which case the examiner shall have up to an additional 45 days to
1302 provide the full report.
1303 (c) The report shall:
1304 [
1305
1306 [
1307 [
1308 (ii) describe the defendant's current mental illness, intellectual disability, brain injury,
1309 or related condition, if any;
1310 [
1311
1312 [
1313
1314 [
1315 [
1316 with respect to the factors identified by the court in [
1317 [
1318
1319 (iv) assess whether the defendant can reasonably be restored to competency in the
1320 foreseeable future given the current restoration treatment being provided and the facility or
1321 program's capacity to provide appropriate restoration treatment for the defendant;
1322 [
1323 estimated to achieve competency, or the amount of time estimated to determine whether
1324 restoration to competency may be achieved[
1325 (vi) assess whether the defendant is exhibiting false or exaggerated physical or
1326 psychological symptoms and state the evaluator's opinion on the impact of any false or
1327 exaggerated symptoms on the defendant's competency to stand trial.
1328 (3) (a) The court on [
1329 department may appoint an additional forensic evaluator to conduct a progress toward
1330 competency evaluation.
1331 (b) If the court appoints an additional forensic evaluator upon motion of a party, that
1332 party shall pay the costs of the additional forensic evaluator.
1333 (4) (a) Within 15 days after the day on which the court receives [
1334 evaluator's report of the progress toward competency evaluation, the court shall hold a hearing
1335 to review the defendant's competency.
1336 (b) At the hearing described in Subsection (4)(a), the burden of proving that the
1337 defendant is [
1338 incompetency.
1339 (c) Following the hearing described in Subsection (4)(a), the court shall determine by a
1340 preponderance of evidence whether the defendant is:
1341 [
1342 [
1343 [
1344 [
1345 [
1346 (5) (a) If, at any time, the court determines that the defendant is competent to stand
1347 trial, the court shall:
1348 (i) proceed with the trial or other procedures as may be necessary to adjudicate the
1349 charges; and
1350 (ii) order that the defendant be returned to the placement and status that the defendant
1351 was in at the time when the petition for the adjudication of competency was filed or raised by
1352 the court, unless the court determines that a [
1353 restrictive environment is more appropriate.
1354 (b) If the court determines that the defendant is [
1355 proceed [
1356 competent in the foreseeable future, the court may order that the defendant remain committed
1357 to the department or the department's designee for the purpose of restoration treatment.
1358 (c) (i) If the court determines that the defendant is incompetent to proceed [
1359
1360 in the foreseeable future, the court shall order the defendant released from commitment to the
1361 department, unless the prosecutor or another individual informs the court that civil
1362 commitment proceedings [
1363 People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act,
1364 will be initiated.
1365 (ii) [
1366 be initiated by a petition filed within seven days after the day on which the court makes the
1367 determination described in Subsection (4)(c), unless the court finds that there is good cause to
1368 delay the initiation of the civil commitment proceedings.
1369 (iii) The court may order the defendant to remain [
1370 the department until the civil commitment proceedings described in this Subsection (5)(c)
1371 conclude.
1372 (iv) If the defendant is civilly committed, the department shall [
1373 to the [
1374 Subsection 62A-15-631(17)(f)(i) that the defendant will be discharged at least [
1375 before [
1376 the defendants will be discharged.
1377 (6) If a court, under Subsection (5)(b), extends a defendant's commitment, the court
1378 shall schedule a competency review hearing for the earlier of:
1379 (a) the department's best estimate of when the defendant may be restored to
1380 competency; or
1381 (b) three months after the day on which the court determined under Subsection (5)(b)
1382 to extend the defendant's commitment.
1383 (7) If a defendant is [
1384 competency review hearing that follows the extension of a defendant's commitment, a court
1385 shall:
1386 (a) except for a defendant charged with crimes listed in Subsection (8), order a
1387 defendant:
1388 (i) released; or
1389 (ii) temporarily detained pending civil commitment proceedings under the same terms
1390 as described in Subsection (5)(c); and
1391 (b) terminate the defendant's commitment [
1392 (8) If the defendant has been charged with aggravated murder, murder, attempted
1393 murder, manslaughter, or a first degree felony and the court determines that the defendant is
1394 making reasonable progress towards restoration of competency at the time of the hearing held
1395 pursuant to Subsection (6), the court may extend the commitment for a period not to exceed [
1396 nine months for the purpose of restoration treatment, with a mandatory review hearing at the
1397 end of the [
1398 (9) If at the [
1399 court determines that the defendant is [
1400 (a) order the defendant, except for a defendant charged with aggravated murder or
1401 murder, to be:
1402 (i) released; or
1403 (ii) temporarily detained pending civil commitment proceedings under the same terms
1404 as provided in Subsection (5)(c); and
1405 (b) terminate the defendant's commitment to the department for restoration treatment.
1406 (10) If the defendant has been charged with aggravated murder or murder and the court
1407 determines that the defendant is making reasonable progress towards restoration of competency
1408 at the time of the [
1409 may extend the commitment for a period not to exceed 24 months for the purpose of restoration
1410 treatment.
1411 (11) If the court extends the defendant's commitment term under Subsection (10), the
1412 court shall hold a hearing no less frequently than at 12-month intervals following the extension
1413 for the purpose of determining the defendant's competency status.
1414 (12) If, at the end of the 24-month commitment period described in Subsection (10),
1415 the court determines that the defendant is [
1416 shall:
1417 (a) order the defendant to be:
1418 (i) released; or
1419 (ii) temporarily detained pending civil commitment proceedings under the same terms
1420 as provided in Subsection (5)(c); and
1421 (b) terminate the defendant's commitment [
1422 (13) Neither release from a pretrial incompetency commitment under the provisions of
1423 this section nor civil commitment requires dismissal of criminal charges. The court may retain
1424 jurisdiction over the criminal case and may order periodic reviews.
1425 (14) A defendant who is civilly committed pursuant to Title 62A, Chapter 5, Services
1426 for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health
1427 Act, may still be adjudicated competent to stand trial under this chapter.
1428 (15) (a) The remedy for a violation of the time periods specified in this section, other
1429 than those specified in Subsection (5)(c), (7), (9), or (12), shall be a motion to compel the
1430 hearing, [
1431 (b) The remedy for a violation of the time periods specified in Subsection (5)(c), (7),
1432 (9), or (12), or is not dismissal of the criminal charges.
1433 (16) In cases in which the treatment of the defendant is precluded by court order for a
1434 period of time, that time period may not be considered in computing time limitations under this
1435 section.
1436 (17) (a) At any time that the defendant becomes competent to stand trial, the clinical
1437 director of the hospital, the department, or the department's designee shall certify that fact to
1438 the court.
1439 (b) The court shall conduct a competency review hearing:
1440 (i) within 15 working days after the day on which the court receives the certification
1441 described in Subsection (17)(a); or
1442 (ii) within 30 working days after the day on which the court receives the certification
1443 described in Subsection (17)(a), if the court determines that more than 15 working days are
1444 necessary for good cause related to the defendant's competency.
1445 (18) The court may order a hearing or rehearing at any time on [
1446 motion or upon recommendations of the clinical director of the hospital or other facility or the
1447 department.
1448 (19) Notice of a hearing or rehearing on competency to stand trial shall be given to the
1449 prosecuting attorney and all counsel of record as described in Subsection
1450 62A-15-631(17)(f)(i)(C). [
1451
1452 Section 18. Section 77-16a-302 is amended to read:
1453 77-16a-302. Individuals found not guilty by reason of insanity -- Disposition --
1454 Discharge.
1455 (1) (a) Upon a verdict of not guilty by reason of insanity, the court shall conduct a
1456 hearing within 10 days after the day on which the verdict is reached to determine whether the
1457 defendant currently has a mental illness.
1458 (b) [
1459 evaluations and present testimony from those examiners.
1460 (2) After the hearing and upon consideration of the record, the court shall order the
1461 defendant committed to the department if [
1462 that:
1463 (a) the defendant has a mental illness; and
1464 (b) because of that mental illness the defendant presents a substantial danger to self or
1465 others.
1466 (3) (a) The period of commitment described in Subsection (2) may not exceed the
1467 period for which the defendant could be incarcerated had the defendant been convicted and
1468 received the maximum sentence for the crime of which the defendant was accused. [
1469
1470
1471 (b) If a defendant's period of commitment is set to expire under the circumstances
1472 described in Subsection (3)(a), the department shall provide notice to the persons described in
1473 Subsection 65A-15-631(17)(f)(i) that the defendant will be discharged at least 60 days before
1474 the day on which the defendant's period of commitment is set to expire.
1475 (c) The prosecutor or another individual shall indicate to the court within 30 days after
1476 the day on which the prosecutor or other individual receives the notice described in Subsection
1477 (3)(b) whether civil commitment proceedings in accordance with Title 62A, Chapter 5,
1478 Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental
1479 Health Act, will be initiated.
1480 (d) The civil commitment proceedings described in Subsection (3)(c) shall be initiated
1481 within the 60-day period described in Subsection (3)(b), unless the court finds good cause to
1482 delay the initiation of the civil commitment proceedings.
1483 (e) The court may order the defendant remain in the custody of the department during
1484 the civil commitment proceedings described in Subsection (3)(c) if the court finds the
1485 circumstances described in Subsection 62A-15-631(3) exist.