02-24 13:09 3rd Sub. (Cherry) H.B. 276
Nelson T. Abbott proposes the following substitute bill:
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Commitment Revisions
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor: Evan J. Vickers
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LONG TITLE
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General Description:
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This bill addresses the commitment of individuals in relation to civil, criminal, and juvenile
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proceedings.
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Highlighted Provisions:
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This bill:
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▸ defines terms;
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▸ amends the definitions of "intellectual disability" and "intermediate care facility for
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people with an intellectual disability" as used in the Utah Code;
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▸ amends provisions relating to the rights and privileges to which an individual is entitled
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when under commitment to the custody or to the treatment services of a local mental
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health authority;
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▸ provides that if a right of a patient of a local mental health authority is limited or denied,
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including for the welfare of the patient or caretakers, the nature, extent, and reason for
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that limitation or denial shall be entered in the patient's treatment record;
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▸ requires a designated examiner to conduct an examination of a proposed patient by
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telehealth except in certain circumstances;
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▸ requires a court to hold a hearing on an application for involuntary commitment remotely
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unless the court finds good cause not to hold the hearing remotely;
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▸ amends standards and processes related to the involuntary civil commitment of an
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individual with an intellectual disability or related condition;
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▸ provides that a court may only order the Department of Health and Human Services
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(department) to provide an initial evaluation and progress toward competency evaluation
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for a defendant or minor if the defendant or minor is located within the state;
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▸ requires a court to dismiss a petition for involuntary civil commitment if both designated
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examiners determine that the proposed patient does not meet the criteria for involuntary
3rd Sub. H.B. 276 3rd Sub. (Cherry) H.B. 276 02-24 13:09
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commitment;
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▸ provides that when there is a conflict in the opinions of forensic evaluators, if a party
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seeks an additional competency evaluation then the party is responsible for selecting the
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evaluator and paying the cost of the evaluator;
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▸ amends provisions regarding the release of a defendant determined to be incompetent to
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proceed from a secured setting;
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▸ addresses when the department is required to provide an updated juvenile competency
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evaluation after an extended attainment period; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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26B-2-121, as renumbered and amended by Laws of Utah 2023, Chapter 305
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26B-2-122, as last amended by Laws of Utah 2024, Chapter 240
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26B-5-301, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-5-310, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-5-322, as last amended by Laws of Utah 2023, Chapter 184 and renumbered and
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amended by Laws of Utah 2023, Chapter 308
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26B-5-332, as last amended by Laws of Utah 2024, Chapters 287, 299 and 314
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26B-5-362, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-5-371, as last amended by Laws of Utah 2023, Chapter 184 and renumbered and
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amended by Laws of Utah 2023, Chapter 308
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26B-6-401, as last amended by Laws of Utah 2024, Chapter 240
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26B-6-606, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-6-607, as last amended by Laws of Utah 2024, Chapter 299
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26B-6-608, as last amended by Laws of Utah 2024, Chapter 299
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26B-6-613, as renumbered and amended by Laws of Utah 2023, Chapter 308
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68-3-12.5, as last amended by Laws of Utah 2024, Chapter 438
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77-15-2, as last amended by Laws of Utah 2023, Chapter 171
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77-15-5, as last amended by Laws of Utah 2023, Chapters 171, 417 and last amended by
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Coordination Clause, Laws of Utah 2023, Chapter 417
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77-15-6, as last amended by Laws of Utah 2024, Chapter 174
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77-19-203, as enacted by Laws of Utah 2004, Chapter 137
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77-29-3, as enacted by Laws of Utah 1980, Chapter 15
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80-6-402, as last amended by Laws of Utah 2023, Chapter 330
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80-6-403, as last amended by Laws of Utah 2023, Chapter 330
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 26B-2-121 is amended to read:
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26B-2-121 . Access to abuse and neglect information.
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(1) As used in this section:
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(a) "Direct service worker" means the same as that term is defined in Section 26B-6-401.
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(b) "Personal care attendant" means the same as that term is defined in Section [
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26B-6-401] 26B-6-101.
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(2) With respect to a licensee, a direct service worker, or a personal care attendant, the
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department may access only the Licensing Information System of the Division of Child
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and Family Services created by Section 80-2-1002 and juvenile court records under
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Subsection 80-3-404(4), for the purpose of:
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(a)(i) determining whether a person associated with a licensee, with direct access to
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children:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); and
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(ii) informing a licensee that a person associated with the licensee:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2);
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(b)(i) determining whether a direct service worker:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); and
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(ii) informing a direct service worker or the direct service worker's employer that the
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direct service worker:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); or
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(c)(i) determining whether a personal care attendant:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); and
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(ii) informing a person described in Subsections 26B-6-101(9)(a)(i) through (iv) that
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a personal care attendant:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2).
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(3) Notwithstanding Subsection (2), the department may access the Division of Child and
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Family Services' Management Information System under Section 80-2-1001:
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(a) for the purpose of licensing and monitoring foster parents;
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(b) for the purposes described in Subsection 80-2-1001(5)(b)(iii); and
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(c) for the purpose described in Section 26B-1-211.
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(4) The department shall receive and process personal identifying information under
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Subsection 26B-2-120(1) for the purposes described in Subsection (2).
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(5) The department shall adopt rules under Title 63G, Chapter 3, Utah Administrative
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Rulemaking Act, consistent with this part, defining the circumstances under which a
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person may have direct access or provide services to children when:
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(a) the person is listed in the Licensing Information System of the Division of Child and
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Family Services created by Section 80-2-1002; or
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(b) juvenile court records show that a court made a substantiated finding under Section
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80-3-404, that the person committed a severe type of child abuse or neglect.
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Section 2. Section 26B-2-122 is amended to read:
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26B-2-122 . Access to vulnerable adult abuse and neglect information.
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(1) For purposes of this section:
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(a) "Direct service worker" means the same as that term is defined in Section 26B-6-401.
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(b) "Personal care attendant" means the same as that term is defined in Section [
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26B-6-401] 26B-6-101.
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(2) With respect to a licensee, a direct service worker, or a personal care attendant, the
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department may access the database created by Section 26B-6-210 for the purpose of:
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(a)(i) determining whether a person associated with a licensee, with direct access to
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vulnerable adults, has a supported or substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; and
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(ii) informing a licensee that a person associated with the licensee has a supported or
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substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation;
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(b)(i) determining whether a direct service worker has a supported or substantiated
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finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; and
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(ii) informing a direct service worker or the direct service worker's employer that the
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direct service worker has a supported or substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; or
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(c)(i) determining whether a personal care attendant has a supported or substantiated
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finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; and
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(ii) informing a person described in Subsections 26B-6-401(9)(a)(i) through (iv) that
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a personal care attendant has a supported or substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation.
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(3) The department shall receive and process personal identifying information under
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Subsection 26B-2-120(2) for the purposes described in Subsection (2).
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(4) The department shall adopt rules under Title 63G, Chapter 3, Utah Administrative
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Rulemaking Act, consistent with this part and Chapter 6, Part 2, Abuse, Neglect, or
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Exploitation of a Vulnerable Adult, defining the circumstances under which a person
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may have direct access or provide services to vulnerable adults when the person is listed
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in the statewide database of the Division of Aging and Adult Services created by Section
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26B-6-210 as having a supported or substantiated finding of abuse, neglect, or
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exploitation.
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Section 3. Section 26B-5-301 is amended to read:
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26B-5-301 . Definitions.
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As used in this part, Part 4, Commitment of Persons Under Age 18, and Part 5, Essential
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Treatment and Intervention:
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(1) "Adult" means an individual 18 years old or older.
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(2) "Approved treatment facility or program" means a mental health or substance use
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treatment provider that meets the goals and measurements described in Subsection
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26B-5-102(2)(j).
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(3) "Assisted outpatient treatment" means involuntary outpatient mental health treatment
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ordered under Section 26B-5-351.
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(4) "Attending physician" means a physician licensed to practice medicine in this state who
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has primary responsibility for the care and treatment of the declarant.
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(5) "Attorney-in-fact" means an adult properly appointed under this part to make mental
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health treatment decisions for a declarant under a declaration for mental health treatment.
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(6) "Commitment to the custody of a local mental health authority" means that an adult is
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committed to the custody of the local mental health authority that governs the mental
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health catchment area where the adult resides or is found.
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(7) "Community mental health center" means an entity that provides treatment and services
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to a resident of a designated geographical area, that operates by or under contract with a
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local mental health authority, and that complies with state standards for community
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mental health centers.
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(8) "Designated examiner" means:
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(a) a licensed physician, preferably a psychiatrist, who is designated by the division as
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specially qualified by training or experience in the diagnosis of mental or related
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illness; or
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(b) a licensed mental health professional designated by the division as specially qualified
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by training and who has at least five years' continual experience in the treatment of
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mental illness.
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(9) "Designee" means a physician who has responsibility for medical functions including
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admission and discharge, an employee of a local mental health authority, or an employee
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of a person that has contracted with a local mental health authority to provide mental
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health services under Section 17-43-304.
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(10) "Essential treatment" and "essential treatment and intervention" mean court-ordered
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treatment at a local substance abuse authority or an approved treatment facility or
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program for the treatment of an adult's substance use disorder.
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(11) "Harmful sexual conduct" means the following conduct upon an individual without the
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individual's consent, including the nonconsensual circumstances described in
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Subsections 76-5-406(2)(a) through (l):
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(a) sexual intercourse;
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(b) penetration, however slight, of the genital or anal opening of the individual;
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(c) any sexual act involving the genitals or anus of the actor or the individual and the
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mouth or anus of either individual, regardless of the gender of either participant; or
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(d) any sexual act causing substantial emotional injury or bodily pain.
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(12) "Informed waiver" means the patient was informed of a right and, after being informed
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of that right and the patient's right to waive the right, expressly communicated his or her
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intention to waive that right.
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(13) "Incapable" means that, in the opinion of the court in a guardianship proceeding under
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Title 75, Utah Uniform Probate Code, or in the opinion of two physicians, a person's
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ability to receive and evaluate information effectively or communicate decisions is
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impaired to such an extent that the person currently lacks the capacity to make mental
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health treatment decisions.
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(14) "Institution" means a hospital or a health facility licensed under Section 26B-2-206.
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(15) "Lay person" means an individual identified and authorized by a patient to participate
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in activities related to the patient's commitment, including court appearances, discharge
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planning, and grievances, except that a patient may revoke a lay person's authorization at
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any time.
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(16) "Local substance abuse authority" means the same as that term is defined in Section
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26B-5-101 and described in Section 17-43-201.
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[(16)] (17) "Mental health facility" means the Utah State Hospital or other facility that
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provides mental health services under contract with the division, a local mental health
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authority, a person that contracts with a local mental health authority, or a person that
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provides acute inpatient psychiatric services to a patient.
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[(17)] (18) "Mental health officer" means an individual who is designated by a local mental
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health authority as qualified by training and experience in the recognition and
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identification of mental illness, to:
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(a) apply for and provide certification for a temporary commitment; or
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(b) assist in the arrangement of transportation to a designated mental health facility.
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[(18)] (19) "Mental illness" means:
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(a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
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behavioral, or related functioning; or
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(b) the same as that term is defined in:
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(i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
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published by the American Psychiatric Association; or
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(ii) the current edition of the International Statistical Classification of Diseases and
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Related Health Problems.
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[(19)] (20) "Mental health treatment" means convulsive treatment, treatment with
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psychoactive medication, or admission to and retention in a facility for a period not to
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exceed 17 days.
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[(20)] (21) "Patient" means an individual who is:
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(a) under commitment to the custody or to the treatment services of a local mental health
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authority; or
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(b) undergoing essential treatment and intervention.
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[(21)] (22) "Physician" means an individual who is:
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(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
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(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
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Practice Act.
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[(22)] (23) "Serious bodily injury" means bodily injury that involves a substantial risk of
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death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
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protracted loss or impairment of the function of a bodily member, organ, or mental
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faculty.
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[(23)] (24) "State hospital" means the Utah State Hospital established in Section 26B-5-302.
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[(24)] (25) "Substantial danger" means that due to mental illness, an individual is at serious
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risk of:
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(a) suicide;
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(b) serious bodily self-injury;
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(c) serious bodily injury because the individual is incapable of providing the basic
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necessities of life, including food, clothing, or shelter;
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(d) causing or attempting to cause serious bodily injury to another individual;
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(e) engaging in harmful sexual conduct; or
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(f) if not treated, suffering severe and abnormal mental, emotional, or physical distress
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that:
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(i) is associated with significant impairment of judgment, reason, or behavior; and
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(ii) causes a substantial deterioration of the individual's previous ability to function
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independently.
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[(25)] (26) "Treatment" means psychotherapy, medication, including the administration of
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psychotropic medication, or other medical treatments that are generally accepted
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medical or psychosocial interventions for the purpose of restoring the patient to an
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optimal level of functioning in the least restrictive environment.
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Section 4. Section 26B-5-310 is amended to read:
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26B-5-310 . Restrictions and limitations -- Rights and privileges.
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(1) Subject to the general rules of the division, subject to the requirement in Subsection (2)
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that the reason, nature, and extent of any limitation or denial of a patient's right shall be
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entered in the patient's treatment record, and except to the extent that the director or [his]
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the director's designee determines that it is necessary for the welfare of the patient or the
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patient's caretakers to impose restrictions, every patient is entitled to:
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(a)(i) communicate, by sealed mail or otherwise, with persons, including official
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agencies, inside or outside the [facility] responsible mental health authority, local
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substance abuse authority, or approved treatment facility or program;
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(ii) be provided with letter-writing materials, including postage; and
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(iii) have staff of the responsible mental health authority, local substance abuse
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authority, or approved treatment facility or program assist the patient if the patient
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is unable to write, prepare, or mail correspondence;
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(b) have frequent and consistent opportunities to receive visitors[; and] at reasonable
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times that do not interfere with clinical activities;
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(c) speak or visit with the patient's attorney or clergy member within a reasonable period
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of time;
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(d) exercise all civil rights, including the right to dispose of property, execute
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instruments, make purchases, enter contractual relationships, and vote, unless the
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patient has been adjudicated to be incompetent and has not been restored to legal
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capacity[.] ;
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(e) have access to adequate water and food, and to have the patient's nutritional needs
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met in a manner that is consistent with recognized dietary practices;
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(f) be treated fairly, with respect and recognition of the patient's dignity and
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individuality;
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(g) not be discriminated against on the basis of a characteristic identified in Subsection
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57-21-5(1);
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(h) within 72 business hours after the patient's request, see and receive the services of a
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patient representative, including a peer specialist or patient advocate, who is not
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involved in the direct clinical care of the patient;
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(i) have the patient's behavioral health orders for scope of treatment, declaration for
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mental health treatment, or other psychiatric advance directive reviewed and
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considered as the preferred treatment option for involuntary administration of
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medications by the responsible local mental health authority, local substance abuse
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authority, or approved treatment facility or program, unless by clear and convincing
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evidence the patient's directive does not qualify as effective participation in
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behavioral health decision-making;
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(j) with the patient's consent, have the patient's information or records disclosed to an
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adult family member, the patient's lay person, or, in accordance with state and federal
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law, to a protection and advocacy system designated pursuant to 42 U.S.C. Sec.
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10801 et seq.;
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(k)(i) access to a telephone to make and receive private calls, unless determined a
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clinical or safety risk; and
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(ii) staff assistance to be able to communicate with others, if the patient does not have
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a contact list;
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(l) wear the patient's own clothes, keep and use the patient's own possessions, and keep
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and be allowed to spend a reasonable amount of the patient's own money, unless
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deemed a clinical or safety risk; and
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(m) be told:
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(i) the reason for the patient's detainment and the limitation of the patient's
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detainment, including a description of the patient's right to refuse medication
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unless the patient requires emergency medications; and
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(ii) that the patient's commitment does not mean all treatment during commitment is
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mandatory.
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(2)(a) When any right of a patient is limited or denied, the nature, extent, and reason for
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that limitation or denial shall be entered in the patient's treatment record.
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(b) Information pertaining to a denial of any right of a patient shall be made available,
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upon request, to the patient, the patient's attorney, and the patient's lay person.
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(c) Any continuing denial or limitation of any right of a patient shall be reviewed every
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30 days and shall also be entered in [that] the patient's treatment record.
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(d) Notice of [that] a continuing denial of any right of a patient in excess of 30 days shall
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be sent to the division, the [appropriate] responsible local mental health authority, the
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appropriate local substance abuse authority, or an approved treatment facility or
340
program[, whichever is most applicable to the patient].
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[(3) Notwithstanding any limitations authorized under this section on the right of
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communication, each patient is entitled to communicate by sealed mail with the
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appropriate local mental health authority, the appropriate local substance abuse
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authority, an approved treatment facility or program, the division, the patient's attorney,
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and the court, if any, that ordered the patient's commitment or essential treatment. In no
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case may the patient be denied a visit with the legal counsel or clergy of the patient's
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choice.]
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[(4)] (3) Local mental health authorities, local substance abuse authorities, and approved
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treatment facilities or programs shall provide reasonable means and arrangements for
350
informing involuntary patients of their right to release as provided in this chapter, and
351
for assisting them in making and presenting requests for release.
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[(5)] (4) [Mental] Local mental health facilities, local substance abuse authorities, and
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approved treatment facilities or programs shall post a statement, created by the division,
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describing a patient's rights under Utah law.
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[(6)] (5) A local mental health authority, local substance abuse authority, or approved
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treatment facility or program may not intentionally retaliate or discriminate against a
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detained patient or employee for contacting or providing information to any official or to
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an employee of any state protection and advocacy agency or for initiating, participating
359
in, or testifying in a grievance procedure or in an action for any remedy authorized
360
pursuant to this section.
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(6) Notwithstanding Section 53B-17-303, an individual committed under this chapter has
362
the right to determine the final disposition of that individual's body after death.
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Section 5. Section 26B-5-322 is amended to read:
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26B-5-322 . Criminal's escape -- Penalty.
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Any person committed to the state hospital under the provisions of [Title 77, Chapter 15,
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Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
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Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition, who escapes
368
or leaves the state hospital without proper legal authority is guilty of a class A misdemeanor.
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Section 6. Section 26B-5-332 is amended to read:
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26B-5-332 . Involuntary commitment under court order -- Examination --
371
Hearing -- Power of court -- Findings required -- Costs.
372
(1) A responsible individual who has credible knowledge of an adult's mental illness and
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the condition or circumstances that have led to the adult's need to be involuntarily
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committed may initiate an involuntary commitment court proceeding by filing, in the
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court in the county where the proposed patient resides or is found, a written application
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that includes:
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(a) unless the court finds that the information is not reasonably available, the proposed
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patient's:
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(i) name;
380
(ii) date of birth; and
381
(iii) social security number;
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(b)(i) a certificate of a licensed physician or a designated examiner stating that within
383
the seven-day period immediately preceding the certification, the physician or
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designated examiner examined the proposed patient and is of the opinion that the
385
proposed patient has a mental illness and should be involuntarily committed; or
386
(ii) a written statement by the applicant that:
387
(A) the proposed patient has been requested to, but has refused to, submit to an
388
examination of mental condition by a licensed physician or designated
389
examiner;
390
(B) is sworn to under oath; and
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(C) states the facts upon which the application is based; and
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(c) a statement whether the proposed patient has previously been under an assisted
393
outpatient treatment order, if known by the applicant.
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(2) Before issuing a judicial order, the court:
395
(a) shall require the applicant to consult with the appropriate local mental health
396
authority at or before the hearing; and
397
(b) may direct a mental health professional from the local mental health authority to
398
interview the applicant and the proposed patient to determine the existing facts and
399
report the existing facts to the court.
400
(3) The court may issue an order, directed to a mental health officer or peace officer, to
401
immediately place a proposed patient in the custody of a local mental health authority or
402
in a temporary emergency facility, as described in Section 26B-5-334, to be detained for
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the purpose of examination if:
404
(a) the court finds from the application, any other statements under oath, or any reports
405
from a mental health professional that there is a reasonable basis to believe that the
406
proposed patient has a mental illness that poses a danger to self or others and requires
407
involuntary commitment pending examination and hearing; or
408
(b) the proposed patient refuses to submit to an interview with a mental health
409
professional as directed by the court or to go to a treatment facility voluntarily.
410
(4)(a) The court shall provide notice of commencement of proceedings for involuntary
411
commitment, setting forth the allegations of the application and any reported facts,
412
together with a copy of any official order of detention, to a proposed patient before,
413
or upon, placement of the proposed patient in the custody of a local mental health
414
authority or, with respect to any proposed patient presently in the custody of a local
415
mental health authority whose status is being changed from voluntary to involuntary,
416
upon the filing of an application for that purpose with the court.
417
(b) The place of detention shall maintain a copy of the order of detention.
418
(5)(a) The court shall provide notice of commencement of proceedings for involuntary
419
commitment as soon as practicable to the applicant, any legal guardian, any
420
immediate adult family members, legal counsel for the parties involved, the local
421
mental health authority or the local mental health authority's designee, and any other
422
persons whom the proposed patient or the court designates.
423
(b) Except as provided in Subsection (5)(c), the notice under Subsection (5)(a) shall
424
advise the persons that a hearing may be held within the time provided by law.
425
(c) If the proposed patient refuses to permit release of information necessary for
426
provisions of notice under this subsection, the court shall determine the extent of
427
notice.
428
(6) Proceedings for commitment of an individual under 18 years old to a local mental health
429
authority may be commenced in accordance with Part 4, Commitment of Persons Under
430
Age 18.
431
(7)(a) The court may, in the court's discretion, transfer the case to any other district court
432
within this state, if the transfer will not be adverse to the interest of the proposed
433
patient.
434
(b) If a case is transferred under Subsection (7)(a), the parties to the case may be
435
transferred and the local mental health authority may be substituted in accordance
436
with Utah Rules of Civil Procedure, Rule 25.
- 13 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
437
(8) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance of a
438
judicial order, or after commitment of a proposed patient to a local mental health
439
authority or the local mental health authority's designee under court order for detention
440
or examination, the court shall appoint two designated examiners:
441
(a) who did not sign the civil commitment application nor the civil commitment
442
certification under Subsection (1);
443
(b) one of whom is:
444
(i) a licensed physician; or
445
(ii) a psychiatric mental health nurse practitioner or a psychiatric mental health
446
clinical nurse specialist who:
447
(A) is nationally certified;
448
(B) is doctorally trained; and
449
(C) has at least two years of inpatient mental health experience, regardless of the
450
license the individual held at the time of that experience; and
451
(c) one of whom may be designated by the proposed patient or the proposed patient's
452
counsel, if that designated examiner is reasonably available.
453
(9) The court shall schedule a hearing to be held within 10 calendar days after the day on
454
which the designated examiners are appointed.
455
(10)(a) The designated examiners shall[:]
456
[(i)] conduct the examinations separately[;] .
457
[(ii)] (b) [conduct the examinations at the home of the proposed patient, at a hospital or
458
other medical facility, or at any other suitable place, including] The designated
459
examiners shall conduct the examinations:
460
(i) through telehealth[,] unless the designated examiner determines that:
461
(A) a telehealth examination would not be sufficient to properly assess the
462
proposed patient;
463
(B) a telehealth examination would have a harmful effect on the proposed patient's
464
health; or
465
(C) an in-person examination can be conducted as effectively, conveniently, and
466
timely as an examination through telehealth; and
467
(ii) if the designated examiner determines, pursuant to Subsection (10)(b)(i), that the
468
examination should be conducted in person, at the home of the proposed patient,
469
at a hospital or other medical facility, or at any other suitable place that is not
470
likely to have a harmful effect on the proposed patient's health[;] .
- 14 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
471
[(iii)] (c) The designated examiners shall inform the proposed patient, if not represented
472
by an attorney:
473
[(A)] (i) that the proposed patient does not have to say anything;
474
[(B)] (ii) of the nature and reasons for the examination;
475
[(C)] (iii) that the examination was ordered by the court;
476
[(D)] (iv) that any information volunteered could form part of the basis for the
477
proposed patient's involuntary commitment;
478
[(E)] (v) that findings resulting from the examination will be made available to the
479
court; and
480
[(F)] (vi) that the designated examiner may, under court order, obtain the proposed
481
patient's mental health records[; and] .
482
[(iv)] (d) [within] Within 24 hours of examining the proposed patient, a designated
483
examiner shall report to the court, orally or in writing, whether the proposed patient
484
is mentally ill, has agreed to voluntary commitment, as described in Section
485
26B-5-360, or has acceptable programs available to the proposed patient without
486
court proceedings.
487
[(b)] (e) If a designated examiner reports orally under Subsection [(10)(a)] (10)(d), the
488
designated examiner shall immediately send a written report to the clerk of the court.
489
(11) If a designated examiner is unable to complete an examination on the first attempt
490
because the proposed patient refuses to submit to the examination, the court shall fix a
491
reasonable compensation to be paid to the examiner.
492
(12) If the local mental health authority, the local mental health authority's designee, or a
493
medical examiner determines before the court hearing that the conditions justifying the
494
findings leading to a commitment hearing no longer exist, the local mental health
495
authority, the local mental health authority's designee, or the medical examiner shall
496
immediately report the determination to the court.
497
(13)(a) The court shall terminate the proceedings and dismiss the application before the
498
hearing if both designated examiners inform the court that the proposed patient does
499
not meet the criteria in Subsection (16).
500
(b) The court may terminate the proceedings and dismiss the application at any time,
501
including before the hearing, if the designated examiners or the local mental health
502
authority or the local mental health authority's designee informs the court that the
503
proposed patient:
504
[(a) does not meet the criteria in Subsection (16);]
- 15 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
505
[(b)] (i) has agreed to voluntary commitment, as described in Section 26B-5-360;
506
[(c)] (ii) has acceptable options for treatment programs that are available without
507
court proceedings; or
508
[(d)] (iii) meets the criteria for assisted outpatient treatment described in Section
509
26B-5-351.
510
(14)(a) Before the hearing, the court shall provide the proposed patient an opportunity to
511
be represented by counsel, and if neither the proposed patient nor others provide
512
counsel, the court shall appoint counsel and allow counsel sufficient time to consult
513
with the proposed patient before the hearing.
514
(b) In the case of an indigent proposed patient, the county in which the proposed patient
515
resides or is found shall make payment of reasonable attorney fees for counsel, as
516
determined by the court.
517
(15)(a)(i) The court shall afford the proposed patient, the applicant, and any other
518
person to whom notice is required to be given an opportunity to appear at the
519
hearing, to testify, and to present and cross-examine witnesses.
520
(ii) The court may, in the court's discretion, receive the testimony of any other person.
521
(iii) The court may allow a waiver of the proposed patient's right to appear for good
522
cause, which cause shall be set forth in the record, or an informed waiver by the
523
patient, which shall be included in the record.
524
(b) The court is authorized to exclude any person not necessary for the conduct of the
525
proceedings and may, upon motion of counsel, require the testimony of each
526
designated examiner to be given out of the presence of any other designated
527
examiners.
528
(c) The court shall:
529
(i) conduct the hearing in as informal a manner as may be consistent with orderly
530
procedure[, and] ; and
531
(ii) while preserving the due process rights of the proposed patient:
532
(A) conduct the hearing remotely, in accordance with Utah Rules of Civil
533
Procedure, Rule 87, unless the court finds good cause under Rule 87 not to
534
conduct the hearing remotely; or
535
(B) if the court finds good cause under Rule 87 not to conduct the hearing
536
remotely, conduct the hearing in a physical setting that is not likely to have a
537
harmful effect on the mental health of the proposed patient[, while preserving
538
the due process rights of the proposed patient].
- 16 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
539
(d) The court shall consider any relevant historical and material information that is
540
offered, subject to the rules of evidence, including reliable hearsay under Utah Rules
541
of Evidence, Rule 1102.
542
(e)(i) A local mental health authority or the local mental health authority's designee
543
or the physician in charge of the proposed patient's care shall, at the time of the
544
hearing, provide the court with the following information:
545
(A) the detention order;
546
(B) admission notes;
547
(C) the diagnosis;
548
(D) any doctors' orders;
549
(E) progress notes;
550
(F) nursing notes;
551
(G) medication records pertaining to the current commitment; and
552
(H) whether the proposed patient has previously been civilly committed or under
553
an order for assisted outpatient treatment.
554
(ii) The local mental health authority or the local mental health authority's designee
555
or the physician in charge of the proposed patient's care shall also supply the
556
information described in Subsection (15)(e)(i) [shall also be supplied ]to the
557
proposed patient's counsel at the time of the hearing, and at any time prior to the
558
hearing upon request by the proposed patient's counsel.
559
(16)(a) The court shall order commitment of an adult proposed patient to a local mental
560
health authority if, upon completion of the hearing and consideration of the
561
information presented, the court finds by clear and convincing evidence that:
562
(i)(A) the proposed patient has a mental illness;
563
(B) because of the proposed patient's mental illness the proposed patient poses a
564
substantial danger to self or others;
565
(C) the proposed patient lacks the ability to engage in a rational decision-making
566
process regarding the acceptance of mental treatment as demonstrated by
567
evidence of inability to weigh the possible risks of accepting or rejecting
568
treatment;
569
(D) there is no appropriate less-restrictive alternative to a court order of
570
commitment; and
571
(E) the local mental health authority can provide the proposed patient with
572
treatment that is adequate and appropriate to the proposed patient's conditions
- 17 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
573
and needs; or
574
(ii)(A) the proposed patient has been charged with a criminal offense;
575
(B) with respect to the charged offense, the proposed patient is found incompetent
576
to proceed as a result of a mental illness;
577
(C) the proposed patient has a mental illness;
578
(D) the proposed patient has a persistent unawareness of their mental illness and
579
the negative consequences of that illness, or within the preceding six months
580
has been requested or ordered to undergo mental health treatment but has
581
unreasonably refused to undergo that treatment;
582
(E) there is no appropriate less-restrictive alternative to a court order of
583
commitment; and
584
(F) the local mental health authority can provide the proposed patient with
585
treatment that is adequate and appropriate to the proposed patient's conditions
586
and needs.
587
(b)(i) If, at the hearing, the court determines that the proposed patient has a mental
588
illness but does not meet the other criteria described in Subsection (16)(a), the
589
court may consider whether the proposed patient meets the criteria for assisted
590
outpatient treatment under Section 26B-5-351.
591
(ii) The court may order the proposed patient to receive assisted outpatient treatment
592
in accordance with Section 26B-5-351 if, at the hearing, the court finds the
593
proposed patient meets the criteria for assisted outpatient treatment under Section
594
26B-5-351.
595
(iii) If the court determines that neither the criteria for commitment under Subsection
596
(16)(a) nor the criteria for assisted outpatient treatment under Section 26B-5-351
597
are met, the court shall dismiss the proceedings after the hearing.
598
(17)(a)(i) The order of commitment shall designate the period for which the patient
599
shall be treated.
600
(ii) If the patient is not under an order of commitment at the time of the hearing, the
601
patient's treatment period may not exceed six months without a review hearing.
602
(iii) Upon a review hearing, to be commenced before the expiration of the previous
603
order of commitment, an order for commitment may be for an indeterminate
604
period, if the court finds by clear and convincing evidence that the criteria
605
described in Subsection (16) will last for an indeterminate period.
606
(b)(i) The court shall maintain a current list of all patients under the court's order of
- 18 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
607
commitment and review the list to determine those patients who have been under
608
an order of commitment for the court designated period.
609
(ii) At least two weeks before the expiration of the designated period of any order of
610
commitment still in effect, the court that entered the original order of commitment
611
shall inform the appropriate local mental health authority or the local mental
612
health authority's designee of the expiration.
613
(iii) Upon receipt of the information described in Subsection (17)(b)(ii), the local
614
mental health authority or the local mental health authority's designee shall
615
immediately reexamine the reasons upon which the order of commitment was
616
based.
617
(iv) If, after reexamination under Subsection (17)(b)(iii), the local mental health
618
authority or the local mental health authority's designee determines that the
619
conditions justifying commitment no longer exist, the local mental health
620
authority or the local mental health authority's designee shall discharge the patient
621
from involuntary commitment and immediately report the discharge to the court.
622
(v) If, after reexamination under Subsection (17)(b)(iii), the local mental health
623
authority or the local mental health authority's designee determines that the
624
conditions justifying commitment continue to exist, the court shall immediately
625
appoint two designated examiners and proceed under Subsections (8) through (14).
626
(c)(i) The local mental health authority or the local mental health authority's designee
627
responsible for the care of a patient under an order of commitment for an
628
indeterminate period shall, at six-month intervals, reexamine the reasons upon
629
which the order of indeterminate commitment was based.
630
(ii) If the local mental health authority or the local mental health authority's designee
631
determines that the conditions justifying commitment no longer exist, the local
632
mental health authority or the local mental health authority's designee shall
633
discharge the patient from the local mental health authority's or the local mental
634
health authority designee's custody and immediately report the discharge to the
635
court.
636
(iii) If the local mental health authority or the local mental health authority's designee
637
determines that the conditions justifying commitment continue to exist, the local
638
mental health authority or the local mental health authority's designee shall send a
639
written report of the findings to the court.
640
(iv) [A] The local mental health authority or the local mental health authority's
- 19 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
641
designee shall notify the patient and the patient's counsel of record [shall be
642
notified ]in writing that the involuntary commitment will be continued under
643
Subsection (17)(c)(iii), the reasons for the decision to continue, and that the
644
patient has the right to a review hearing by making a request to the court.
645
(v) Upon receiving a request under Subsection (17)(c)(iv), the court shall
646
immediately appoint two designated examiners and proceed under Subsections (8)
647
through (14).
648
(18)(a) Any patient committed as a result of an original hearing or a patient's legally
649
designated representative who is aggrieved by the findings, conclusions, and order of
650
the court entered in the original hearing has the right to a new hearing upon filing a
651
petition [filed ]with the court within 30 days after the day on which the court entered
652
the order[ is entered].
653
(b) The petition shall allege error or mistake in the findings, in which case the court shall
654
appoint three impartial designated examiners previously unrelated to the case to
655
conduct an additional examination of the patient.
656
(c) Except as provided in Subsection (18)(b), the court shall, in all other respects,
657
conduct the new hearing in the manner otherwise permitted.
658
(19) The county in which the proposed patient resides or is found shall pay the costs of all
659
proceedings under this section.
660
(20)(a) A local mental health authority shall provide discharge instructions to each
661
individual committed under this section at or before the time the individual is
662
discharged from the local mental health authority's custody, regardless of the
663
circumstances under which the individual is discharged.
664
(b) Discharge instructions provided under Subsection (20)(a) shall include:
665
(i) a summary of why the individual was committed to the local mental health
666
authority;
667
(ii) detailed information about why the individual is being discharged from the local
668
mental health authority's custody;
669
(iii) a safety plan for the individual based on the individual's mental illness or mental
670
or emotional state;
671
(iv) notification to the individual's primary care provider, if applicable;
672
(v) if the individual is discharged without food, housing, or economic security, a
673
referral to appropriate services, if such services exist in the individual's
674
community;
- 20 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
675
(vi) the phone number to call or text for a crisis services hotline, and information
676
about the availability of peer support services;
677
(vii) a copy of any psychiatric advance directive presented to the local mental health
678
authority, if applicable;
679
(viii) information about how to establish a psychiatric advance directive if one was
680
not presented to the local mental health authority;
681
(ix) as applicable, information about medications that were changed or discontinued
682
during the commitment;
683
(x) a list of any screening or diagnostic tests conducted during the commitment;
684
(xi) a summary of therapeutic treatments provided during the commitment;
685
(xii) any laboratory work, including blood samples or imaging, that was completed or
686
attempted during the commitment; and
687
(xiii) information about how to contact the local mental health authority if needed.
688
(c) If an individual's medications were changed, or if an individual was prescribed new
689
medications while committed under this section, discharge instructions provided
690
under Subsection (20)(a) shall include a clinically appropriate supply of medications,
691
as determined by a licensed health care provider, to allow the individual time to
692
access another health care provider or follow-up appointment.
693
(d) If an individual refuses to accept discharge instructions, the local mental health
694
authority shall document the refusal in the individual's medical record.
695
(e) If an individual's discharge instructions include referrals to services under Subsection
696
(20)(b)(v), the local mental health authority shall document those referrals in the
697
individual's medical record.
698
(f) The local mental health authority shall attempt to follow up with a discharged
699
individual at least 48 hours after discharge, and may use peer support professionals
700
when performing follow-up care or developing a continuing care plan.
701
(21) If any provision of Subsection (16)(a)(ii) or the application of any provision of
702
Subsection (16)(a)(ii) to any person or circumstance is held invalid by a court with
703
jurisdiction, the remainder of Subsection (16)(a)(ii) shall be given effect without the
704
invalid provision or application. The provisions of Subsection (16)(a)(ii) are severable.
705
Section 7. Section 26B-5-362 is amended to read:
706
26B-5-362 . Commitment and care of criminally insane.
707
Nothing contained in this part may be construed to alter or change the method presently
708
employed for the commitment and care of the criminally insane as provided in [Title 77,
- 21 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
709
Chapter 15, Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to
710
Proceed.
711
Section 8. Section 26B-5-371 is amended to read:
712
26B-5-371 . Utah Forensic Mental Health Facility -- Design and operation --
713
Security.
714
(1) The forensic mental health facility is a secure treatment facility.
715
(2)(a) The forensic mental health facility accommodates the following populations:
716
(i) prison inmates displaying mental illness necessitating treatment in a secure mental
717
health facility;
718
(ii) criminally adjudicated persons found guilty with a mental illness or guilty with a
719
mental condition at the time of the offense undergoing evaluation for a mental
720
condition under Title 77, Chapter 16a, Commitment and Treatment of Individuals
721
with a Mental Condition;
722
(iii) criminally adjudicated persons undergoing evaluation for competency or found
723
guilty with a mental condition or guilty with a mental condition at the time of the
724
offense under Title 77, Chapter 16a, Commitment and Treatment of Individuals
725
with a Mental Condition, who also have an intellectual disability;
726
(iv) persons undergoing evaluation for competency or found by a court to be
727
incompetent to proceed in accordance with [Title 77, Chapter 15, Inquiry into
728
Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
729
not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
730
(v) persons who are civilly committed to the custody of a local mental health
731
authority in accordance with this part, and who may not be properly supervised by
732
the Utah State Hospital because of a lack of necessary security, as determined by
733
the superintendent or the superintendent's designee; and
734
(vi) persons ordered to commit themselves to the custody of the division for
735
treatment at the Utah State Hospital as a condition of probation or stay of sentence
736
pursuant to Title 77, Chapter 18, The Judgment.
737
(b) Placement of an offender in the forensic mental health facility under any category
738
described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the
739
offender's status as established by the court at the time of adjudication.
740
(c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
741
department shall make rules providing for the allocation of beds to the categories
742
described in Subsection (2)(a).
- 22 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
743
(3) The department shall:
744
(a) own and operate the forensic mental health facility;
745
(b) provide and supervise administrative and clinical staff; and
746
(c) provide security staff who are trained as psychiatric technicians.
747
(4) Pursuant to Subsection 26B-5-303(3) the executive director shall designate individuals
748
to perform security functions for the state hospital.
749
Section 9. Section 26B-6-401 is amended to read:
750
26B-6-401 . Definitions.
751
As used in this part:
752
(1) "Approved provider" means a person approved by the division to provide home-and
753
community-based services.
754
(2) "Board" means the Utah State Developmental Center Board created under Section
755
26B-1-429.
756
(3)(a) "Brain injury" means an acquired injury to the brain that is neurological in nature,
757
including a cerebral vascular accident.
758
(b) "Brain injury" does not include a deteriorating disease.
759
(4) "Designated intellectual disability professional" means:
760
(a) a psychologist licensed under Title 58, Chapter 61, Psychologist Licensing Act, who:
761
(i)(A) has at least one year of specialized training in working with persons with an
762
intellectual disability; or
763
(B) has at least one year of clinical experience with persons with an intellectual
764
disability; and
765
(ii) is designated by the division as specially qualified, by training and experience, in
766
the treatment of an intellectual disability; or
767
(b) a clinical social worker, certified social worker, marriage and family therapist, or
768
professional counselor, licensed under Title 58, Chapter 60, Mental Health
769
Professional Practice Act, who:
770
(i) has at least two years of clinical experience with persons with an intellectual
771
disability; and
772
(ii) is designated by the division as specially qualified, by training and experience, in
773
the treatment of an intellectual disability.
774
(5) "Deteriorating disease" includes:
775
(a) multiple sclerosis;
776
(b) muscular dystrophy;
- 23 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
777
(c) Huntington's chorea;
778
(d) Alzheimer's disease;
779
(e) ataxia; or
780
(f) cancer.
781
(6) "Developmental center" means the Utah State Developmental Center, established in
782
accordance with Part 5, Utah State Developmental Center.
783
(7) "Director" means the director of the Division of Services for People with Disabilities.
784
(8) "Direct service worker" means a person who provides services to a person with a
785
disability:
786
(a) when the services are rendered in:
787
(i) the physical presence of the person with a disability; or
788
(ii) a location where the person rendering the services has access to the physical
789
presence of the person with a disability; and
790
(b)(i) under a contract with the division;
791
(ii) under a grant agreement with the division; or
792
(iii) as an employee of the division.
793
(9)(a) "Disability" means a severe, chronic disability that:
794
(i) is attributable to:
795
(A) an intellectual disability;
796
(B) a condition that qualifies a person as a person with a related condition, as
797
defined in 42 C.F.R. Sec. 435.1010;
798
(C) a physical disability; or
799
(D) a brain injury;
800
(ii) is likely to continue indefinitely;
801
(iii)(A) for a condition described in Subsection (9)(a)(i)(A), (B), or (C), results in
802
a substantial functional limitation in three or more of the following areas of
803
major life activity:
804
(I) self-care;
805
(II) receptive and expressive language;
806
(III) learning;
807
(IV) mobility;
808
(V) self-direction;
809
(VI) capacity for independent living; or
810
(VII) economic self-sufficiency; or
- 24 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
811
(B) for a condition described in Subsection (9)(a)(i)(D), results in a substantial
812
limitation in three or more of the following areas:
813
(I) memory or cognition;
814
(II) activities of daily life;
815
(III) judgment and self-protection;
816
(IV) control of emotions;
817
(V) communication;
818
(VI) physical health; or
819
(VII) employment; and
820
(iv) requires a combination or sequence of special interdisciplinary or generic care,
821
treatment, or other services that:
822
(A) may continue throughout life; and
823
(B) must be individually planned and coordinated.
824
(b) "Disability" does not include a condition due solely to:
825
(i) mental illness;
826
(ii) personality disorder;
827
(iii) deafness or being hard of hearing;
828
(iv) visual impairment;
829
(v) learning disability;
830
(vi) behavior disorder;
831
(vii) substance abuse; or
832
(viii) the aging process.
833
(10) "Division" means the Division of Services for People with Disabilities.
834
(11) "Eligible to receive division services" or "eligibility" means qualification, based on
835
criteria established by the division, to receive services that are administered by the
836
division.
837
(12) "Endorsed program" means a facility or program that:
838
(a) is operated:
839
(i) by the division; or
840
(ii) under contract with the division; or
841
(b) provides services to a person committed to the division under Part 6, Admission to
842
an Intermediate Care Facility for People with an Intellectual Disability.
843
(13) "Licensed physician" means:
844
(a) an individual licensed to practice medicine under:
- 25 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
845
(i) Title 58, Chapter 67, Utah Medical Practice Act; or
846
(ii) Title 58, Chapter 68, Utah Osteopathic Medical Practice Act; or
847
(b) a medical officer of the United States Government while in this state in the
848
performance of official duties.
849
(14) "Limited support services" means services that are administered by the division to
850
individuals with a disability:
851
(a) under a waiver authorized under 42 U.S.C. Sec. 1396n(c) by the Centers for
852
Medicare and Medicaid Services that permits the division to limit services to an
853
individual who is eligible to receive division services; and
854
(b) through a program that:
855
(i) was not operated by the division on or before January 1, 2020; and
856
(ii)(A) limits the kinds of services that an individual may receive; or
857
(B) sets a maximum total dollar amount for program services provided to each
858
individual.
859
(15) "Physical disability" means a medically determinable physical impairment that has
860
resulted in the functional loss of two or more of a person's limbs.
861
(16) "Public funds" means state or federal funds that are disbursed by the division.
862
(17)(a) "Related condition" means a severe, chronic condition that:
863
(i) manifests before the day on which an individual turns 22 years old;
864
(ii) is likely to continue indefinitely;
865
(iii) results in substantial functional limitations;
866
(iv) is closely related to an intellectual disability because the condition results in the
867
impairment of:
868
(A) general intellectual functioning, similar to that of an individual with an
869
intellectual disability; or
870
(B) adaptive behavior, similar to that of an individual with an intellectual
871
disability; and
872
(v) requires treatment or services similar to the treatment or services required for an
873
individual with an intellectual disability.
874
(b) "Related condition" does not include mental illness, as that term is defined in Section
875
26B-5-301.
876
[(17)] (18) "Resident" means an individual under observation, care, or treatment in an
877
intermediate care facility for people with an intellectual disability.
878
(19) "Substantial danger" means that because of an intellectual disability or related
- 26 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
879
condition, an individual is at risk of:
880
(a) suicide;
881
(b) serious bodily self-injury;
882
(c) serious bodily injury because the individual lacks capacity to provide the basic
883
necessities of life, such as food, clothing, or shelter;
884
(d) causing or attempting to cause serious bodily injury or serious emotional harm to
885
another individual;
886
(e) engaging in harmful sexual conduct, as that term is defined in Section 26B-5-301; or
887
(f) suffering serious physical harm or serious emotional harm as a result of being
888
exploited, abused, or neglected.
889
[(18)] (20) "Sustainability fund" means the Utah State Developmental Center Long-Term
890
Sustainability Fund created in Section 26B-1-331.
891
Section 10. Section 26B-6-606 is amended to read:
892
26B-6-606 . Involuntary commitment.
893
An individual with an intellectual disability or related condition may not be involuntarily
894
committed to [an intermediate care facility for people with an intellectual disability] the division
895
except in accordance with Sections 26B-6-607 and 26B-6-608.
896
Section 11. Section 26B-6-607 is amended to read:
897
26B-6-607 . Temporary emergency commitment -- Observation and evaluation.
898
(1) [The director of the division or his designee may temporarily commit an individual to
899
the division and therefore, as a matter of course, to an intermediate care facility for
900
people with an intellectual disability for observation and evaluation] An individual with
901
an intellectual disability or related condition may be committed to the division on an
902
emergency basis upon[:]
903
[(a) written application by a responsible person who has reason to know that the
904
individual is in need of commitment, stating:]
905
[(i) a belief that the individual has an intellectual disability and is likely to cause
906
serious injury to self or others if not immediately committed;]
907
[(ii) personal knowledge of the individual's condition; and]
908
[(iii) the circumstances supporting that belief; or]
909
[(b)] certification by a [licensed physician or ]designated intellectual disability
910
professional stating that the [physician or ]designated intellectual disability
911
professional:
912
[(i)] (a) has examined the individual within a three-day period, excluding Saturdays,
- 27 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
913
Sundays, and state holidays, immediately preceding the certification; and
914
[(ii)] (b) is of the opinion that the individual has an intellectual disability or related
915
condition, and that because of the individual's intellectual disability [is likely to injure]
916
or related condition is a substantial danger to self or others[ if not immediately
917
committed].
918
(2) If the individual in need of commitment is not placed in the custody of the director or
919
the director's designee by the person submitting the [application, the director's]
920
certification, the director or the director's designee may certify, either in writing or orally
921
that the individual is in need of immediate commitment to prevent [injury] posing
922
substantial danger to self or others.
923
(3) Upon receipt of the [application] certification required by Subsection [(1)(a) and the
924
certifications required by Subsections (1)(b) and (2)] (2), a peace officer [may take the
925
individual named in the application and certificates into custody, and ]may transport the
926
individual to a [designated intermediate care facility for people with an intellectual
927
disability] placement designated by the division.
928
(4)(a) An individual committed under this section may be held for a maximum of [72
929
hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of that
930
time,] 10 days, after which the individual shall be released unless proceedings for
931
involuntary commitment have been commenced under Section 26B-6-608.
932
(b) [After] If proceedings for involuntary commitment have been commenced[ the
933
individual shall be released unless an order of detention is issued in accordance with
934
Section 26B-6-608] , an emergency order under this section remains in effect until:
935
(i) the division determines that the conditions justifying commitment no longer exist;
936
or
937
(ii) a court order is issued pursuant to Section 26B-6-608.
938
(5)(a) If an individual is committed to the division under this section[ on the application
939
of any person other than the individual's legal guardian, spouse, parent, or next of kin],
940
the director or [his] the director's designee shall immediately give notice of the
941
commitment to the individual's legal guardian[, spouse, parent, or next of kin], if
942
known.
943
(b)(i) Immediately after an individual is committed to the division under this section,
944
the division shall inform the individual, orally and in writing, of the individual's
945
right to communicate with an attorney.
946
(ii) If the individual desires to communicate with an attorney, the division shall take
- 28 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
947
immediate steps to assist the individual in contacting and communicating with an
948
attorney.
949
(6)(a) The division [or an intermediate care facility ]shall provide discharge instructions
950
to each individual committed under this section at or before the time the individual is
951
discharged from the custody of the division[ or intermediate care facility],
952
regardless of whether the individual is discharged by being released or under other
953
circumstances.
954
(b) Discharge instructions provided under Subsection (6)(a) shall include:
955
(i) a summary of why the individual was committed;
956
(ii) detailed information about why the individual is being discharged;
957
(iii) a safety plan for the individual based on the individual's intellectual disability
958
and condition;
959
(iv) notification to the individual's primary care provider, if applicable;
960
(v) if the individual is discharged without food, housing, or economic security, a
961
referral to appropriate services, if such services exist in the individual's
962
community;
963
(vi) the phone number to call or text for a crisis services hotline, and information
964
about the availability of peer support services;
965
(vii) a copy of any advance directive presented to the local mental health authority, if
966
applicable;
967
(viii) information about how to establish an advance directive if one was not
968
presented to the division[ or intermediate care facility];
969
(ix) as applicable, information about medications that were changed or discontinued
970
during the commitment;
971
(x) a list of any screening or diagnostic tests conducted during the commitment;
972
(xi) a summary of therapeutic treatments provided during the commitment;
973
(xii) any laboratory work, including blood samples or imaging, that was completed or
974
attempted during the commitment; and
975
(xiii) information about how to contact the division[ or intermediate care facility] if
976
needed.
977
(c) If an individual's medications were changed, or if an individual was prescribed new
978
medications while committed under this section, discharge instructions provided
979
under Subsection (6)(a) shall include a clinically appropriate supply of medications,
980
as determined by a licensed health care provider, to allow the individual time to
- 29 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
981
access another health care provider or follow-up appointment.
982
(d) If an individual refuses to accept discharge instructions, the division[ or intermediate
983
care facility] shall document the refusal in the individual's medical record.
984
(e) If an individual's discharge instructions include referrals to services under Subsection
985
(6)(b)(v), the division[ or intermediate care facility] shall document those referrals
986
in the individual's medical record.
987
(f) The division shall attempt to follow up with a discharged individual at least 48 hours
988
after discharge, and may use peer support professionals when performing follow-up
989
care or developing a continuing care plan.
990
Section 12. Section 26B-6-608 is amended to read:
991
26B-6-608 . Involuntary commitment -- Procedures -- Necessary findings --
992
Periodic review.
993
[(1) Any responsible person who has reason to know that an individual is in need of
994
commitment, who has a belief that the individual has an intellectual disability, and who
995
has personal knowledge of the conditions and circumstances supporting that belief, may
996
commence proceedings for involuntary commitment by filing a written petition with the
997
district court, or if the subject of the petition is less than 18 years old with the juvenile
998
court, of the county in which the individual to be committed is physically located at the
999
time the petition is filed. The application shall be accompanied by:]
1000
[(a) a certificate of a licensed physician or a designated intellectual disability
1001
professional, stating that within a seven-day period immediately preceding the
1002
certification, the physician or designated intellectual disability professional examined
1003
the individual and believes that the individual has an intellectual disability and is in
1004
need of involuntary commitment; or]
1005
[(b) a written statement by the petitioner that:]
1006
[(i) states that the individual was requested to, but refused to, submit to an
1007
examination for an intellectual disability by a licensed physician or designated
1008
intellectual disability professional, and that the individual refuses to voluntarily go
1009
to the division or an intermediate care facility for people with an intellectual
1010
disability recommended by the division for treatment;]
1011
[(ii) is under oath; and]
1012
[(iii) sets forth the facts on which the statement is based.]
1013
[(2) Before issuing a detention order, the court may require the petitioner to consult with
1014
personnel at the division or at an intermediate care facility for people with an intellectual
- 30 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1015
disability and may direct a designated intellectual disability professional to interview the
1016
petitioner and the individual to be committed, to determine the existing facts, and to
1017
report them to the court.]
1018
[(3) The court may issue a detention order and may direct a peace officer to immediately
1019
take the individual to an intermediate care facility for people with an intellectual
1020
disability to be detained for purposes of an examination if the court finds from the
1021
petition, from other statements under oath, or from reports of physicians or designated
1022
intellectual disability professionals that there is a reasonable basis to believe that the
1023
individual to be committed:]
1024
[(a) poses an immediate danger of physical injury to self or others;]
1025
[(b) requires involuntary commitment pending examination and hearing;]
1026
[(c) the individual was requested but refused to submit to an examination by a licensed
1027
physician or designated intellectual disability professional; or]
1028
[(d) the individual refused to voluntarily go to the division or to an intermediate care
1029
facility for people with an intellectual disability recommended by the division.]
1030
[(4)(a) If the court issues a detention order based on an application that did not include
1031
a certification by a designated intellectual disability professional or physician in
1032
accordance with Subsection (1)(a), the director or his designee shall within 24 hours
1033
after issuance of the detention order, excluding Saturdays, Sundays, and legal
1034
holidays, examine the individual, report the results of the examination to the court
1035
and inform the court:]
1036
[(i) whether the director or his designee believes that the individual has an intellectual
1037
disability; and]
1038
[(ii) whether appropriate treatment programs are available and will be used by the
1039
individual without court proceedings.]
1040
[(b) If the report of the director or his designee is based on an oral report of the
1041
examiner, the examiner shall immediately send the results of the examination in
1042
writing to the clerk of the court.]
1043
[(5) Immediately after an individual is involuntarily committed under a detention order or
1044
under Section 26B-6-607, the director or his designee shall inform the individual, orally
1045
and in writing, of his right to communicate with an attorney. If an individual desires to
1046
communicate with an attorney, the director or his designee shall take immediate steps to
1047
assist the individual in contacting and communicating with an attorney.]
1048
(1)(a) Any responsible person who has reason to know that an individual is in need of
- 31 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1049
commitment, who has a belief that the individual has an intellectual disability or
1050
related condition, and who has personal knowledge of the conditions and
1051
circumstances supporting that belief, may make a referral to the division to conduct
1052
an assessment to determine if the individual meets the criteria for involuntary
1053
commitment under this section.
1054
(b)(i) To conduct an assessment of an individual who may be in need of commitment
1055
under this section, the division shall have two designated intellectual disability
1056
professionals examine the individual.
1057
(ii) The examinations described in Subsection (1)(b)(i) shall be conducted separately
1058
and at a suitable location not likely to have a harmful effect on the individual
1059
being examined.
1060
(c) If the designated intellectual disability professionals who conduct the examinations
1061
described in Subsection (1)(b)(i) both believe the examined individual meets the
1062
criteria for involuntary commitment under this section, the division may file a written
1063
petition to commence involuntary commitment proceedings with the district court, or
1064
with the juvenile court if the subject of the petition is less than 18 years old, of the
1065
county in which the subject of the petition is physically located at the time the
1066
petition is filed.
1067
(d)(i) The division shall include with a petition described in Subsection (1)(c) a
1068
certification from each of the designated intellectual disability professionals who
1069
examined the subject of the petition.
1070
(ii) A designated intellectual disability professional's certification shall state that:
1071
(A) within a seven-day period immediately preceding the filing of the petition, the
1072
designated intellectual disability professional examined the subject of the
1073
petition separate from the other designated intellectual disability professional;
1074
and
1075
(B) it is the designated intellectual disability professional's belief that the subject
1076
of the petition has an intellectual disability or related condition and meets the
1077
criteria for involuntary commitment under this section.
1078
(2)(a) If, pursuant to Title 77, Chapter 15, Defendant's Competency to Proceed, or Title
1079
80, Chapter 6, Part 4, Competency, a prosecutor informs a court that commitment
1080
proceedings will be initiated, the prosecutor shall make a referral to the division
1081
pursuant to Subsection (1).
1082
(b) If a prosecutor makes a referral to the division pursuant to Subsection (1), the
- 32 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1083
division shall complete an assessment as described in Subsection (1)(b) within seven
1084
days after the day on which the prosecutor makes the referral unless the court
1085
enlarges the time for good cause shown.
1086
(c) Upon completion of the assessment described in Subsection (2)(b), if the designated
1087
intellectual disability professionals who examine the individual who is the subject of
1088
the referral both certify that they believe the individual meets the criteria for
1089
involuntary commitment under this section, the division may file a petition to
1090
commence involuntary commitment proceedings in accordance with Subsections
1091
(1)(c) and (d).
1092
[(6)] (3)(a) Immediately after [commencement of proceedings] the division files a petition
1093
for involuntary commitment under this section, the court shall:
1094
(i) schedule a hearing on the petition for no later than 10 days after the day on which
1095
the division filed the petition; and
1096
(ii) give notice of commencement of the proceedings to:
1097
[(i)] (A) the individual to be committed;
1098
[(ii)] (B) the [applicant] referent under Subsection (1)(a) or (2)(a), if applicable;
1099
[(iii)] (C) any legal guardian of the individual;
1100
[(iv)] (D) adult members of the individual's immediate family;
1101
[(v)] (E) legal counsel of the individual to be committed, if any;
1102
[(vi)] (F) the division; and
1103
[(vii)] (G) any other person to whom the individual requests, or the court
1104
designates, notice to be given.
1105
(b) If an individual cannot or refuses to disclose the identity of persons to be notified,
1106
the extent of notice shall be determined by the court.
1107
[(7)] (4) [That notice] The notice described in Subsection (3) shall:
1108
(a) set forth the allegations of the petition and all supporting facts;
1109
(b) be accompanied by a copy of [any detention] an emergency order issued under [
1110
Subsection (3)] Section 26B-6-607, if applicable; and
1111
(c) state that a hearing will be held within the time provided by law, and give the time
1112
and place for that hearing.
1113
[(8)] (5) The court may transfer the case and the custody of the individual to be committed
1114
to any other district court within the state[, if:] if the individual resides in another
1115
jurisdiction within the state.
1116
[(a) there are no appropriate facilities for persons with an intellectual disability within
- 33 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1117
the judicial district; and]
1118
[(b) the transfer will not be adverse to the interests of the individual.]
1119
[(9)(a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, after any
1120
order or commitment under a detention order, the court shall appoint two designated
1121
intellectual disability professionals to examine the individual. If requested by the
1122
individual's counsel, the court shall appoint a reasonably available, qualified person
1123
designated by counsel to be one of the examining designated intellectual disability
1124
professionals. The examinations shall be conducted:]
1125
[(i) separately;]
1126
[(ii) at the home of the individual to be committed, a hospital, an intermediate care
1127
facility for people with an intellectual disability, or any other suitable place not
1128
likely to have a harmful effect on the individual; and]
1129
[(iii) within a reasonable period of time after appointment of the examiners by the
1130
court.]
1131
[(b) The court shall set a time for a hearing to be held within 10 court days of the
1132
appointment of the examiners. However, the court may immediately terminate the
1133
proceedings and dismiss the application if, prior to the hearing date, the examiners,
1134
the director, or his designee informs the court that:]
1135
[(i) the individual does not have an intellectual disability; or]
1136
[(ii) treatment programs are available and will be used by the individual without court
1137
proceedings.]
1138
[(10)] (6)(a)(i) Each individual has the right to be represented by counsel at the
1139
commitment hearing and in all preliminary proceedings.
1140
(ii) If neither the individual nor others provide counsel, [ ]the court shall appoint
1141
counsel and allow sufficient time for counsel to consult with the individual prior
1142
to any hearing.
1143
(b) If the individual is indigent, the county in which the individual was physically
1144
located when taken into custody shall pay reasonable attorney fees as determined by
1145
the court.
1146
[(11)] (7) [The division or a designated intellectual disability professional in charge of the
1147
individual's care] Upon order of the court, the division or the division's designee shall
1148
provide all [documented information on] relevant documentation on the individual to be
1149
committed [and ]to the court [at the time of the hearing. The] and the individual's
1150
attorney[ shall have access to all documented information on the individual at the time
- 34 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1151
of and prior to the hearing].
1152
[(12)] (8)(a) The court shall provide an opportunity to the individual, the petitioner, and
1153
all other persons to whom notice is required to be given to appear at the hearing, to
1154
testify, and to present and cross-examine witnesses.
1155
(b) The court may, in its discretion:
1156
(i) receive the testimony of any other person;
1157
(ii) allow a waiver of the right to appear only for good cause shown;
1158
(iii) exclude from the hearing all persons not necessary to conduct the proceedings;
1159
and
1160
(iv) upon motion of counsel, require the testimony of each examiner to be given out
1161
of the presence of any other examiner.
1162
(c)(i) The hearing shall be conducted in as informal a manner as may be consistent
1163
with orderly procedure, and in a physical setting that is not likely to have a
1164
harmful effect on the individual.
1165
(ii) The Utah Rules of Evidence apply, and the hearing shall be a matter of court
1166
record.
1167
(iii) A verbatim record of the proceedings shall be maintained.
1168
[(13)] (9) The court may order commitment if, upon completion of the hearing and
1169
consideration of the record, [it] the court finds by clear and convincing evidence that all
1170
of the following conditions are met:
1171
(a) the individual to be committed has an intellectual disability or a related condition;
1172
(b) because of the individual's intellectual disability or related condition, one or more of
1173
the following conditions exist:
1174
(i) the individual poses [an immediate danger of physical injury] substantial danger to
1175
self or others;
1176
(ii) the individual lacks the capacity to provide the basic necessities of life, such as
1177
food, clothing, or shelter;[ or]
1178
(iii) the individual is in immediate need of habilitation, rehabilitation, care, or
1179
treatment to minimize the effects of the condition which poses a [threat of serious
1180
physical or psychological injury to the individual, and] risk of substantial danger to
1181
self or others; or
1182
(iv) the individual lacks the capacity to engage in a rational decision-making process
1183
concerning the need for habilitation, rehabilitation, care, or treatment, as
1184
evidenced by an inability to weigh the possible costs and benefits of the care or
- 35 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1185
treatment and the alternatives to it;
1186
(c) there is no appropriate, less restrictive alternative reasonably available; and
1187
(d) the division [or the intermediate care facility for people with an intellectual disability
1188
recommended by the division in which the individual is to be committed ]can provide
1189
the individual with treatment, care, habilitation, or rehabilitation that is adequate and
1190
appropriate to the individual's condition and needs.
1191
[(14)] (10) In the absence of any of the required findings by the court, described in
1192
Subsection [(13)] (9), the court shall dismiss the proceedings.
1193
[(15)] (11)(a) The order of commitment shall designate the period for which the
1194
individual will be committed.
1195
(b) An initial commitment may not exceed six months.[ Before the end of the initial
1196
commitment period, the administrator of the intermediate care facility for people with
1197
an intellectual disability shall commence a review hearing on behalf of the individual.]
1198
[(b) At the conclusion of the review hearing, the court may issue an order of
1199
commitment for up to a one-year period.]
1200
[(16)] (12)(a) An individual committed under this part has the right to a rehearing[, upon
1201
filing a petition with the court within 30 days after entry of the court's order. If the
1202
petition for rehearing alleges error or mistake in the court's findings, the] if, within 15
1203
days after the court enters the order of commitment, the individual files a petition
1204
with the court alleging error or mistake in the court's findings.
1205
(b) Upon a request for rehearing filed in accordance with Subsection (12)(a), the court
1206
shall:
1207
(i) appoint[ one impartial licensed physician and] two impartial designated
1208
intellectual disability professionals who have not previously been involved in the
1209
case to examine the individual[. ] ; and
1210
(ii) schedule a rehearing to be held within 30 days after the court entered the order of
1211
commitment.
1212
(c) [The] In all other respects, the rehearing shall[, in all other respects,] be conducted in
1213
accordance with this part.
1214
[(17)] (13)(a)(i) The court shall maintain a current list of all individuals under its
1215
orders of commitment.
1216
(ii) [That list shall be reviewed in order] The court shall review the list described in
1217
Subsection (13)(a)(i) to determine those patients who have been under an order of
1218
commitment for the designated period.
- 36 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1219
(b) At least two weeks prior to the expiration of the designated period of any
1220
commitment order still in effect, the court that entered the original order shall [inform
1221
the director of the division of the impending expiration of the designated
1222
commitment period] commence and send notice to all parties of a review hearing for
1223
the committed individual.
1224
(c) Prior to the review hearing, a division-designated intellectual disability professional
1225
shall reexamine the basis for the order of commitment and provide a report of that
1226
reexamination to the court.
1227
(d) At the conclusion of a review hearing, the court may:
1228
(i) issue an order of commitment for up to a one-year period; or
1229
(ii) discharge the individual from involuntary commitment if the conditions justifying
1230
commitment no longer exist.
1231
[(c) The staff of the division shall immediately:]
1232
[(i) reexamine the reasons upon which the order of commitment was based and report
1233
the results of the examination to the court;]
1234
[(ii) discharge the resident from involuntary commitment if the conditions justifying
1235
commitment no longer exist; and]
1236
[(iii) immediately inform the court of any discharge.]
1237
[(d)] (e) [If the director of the division reports to the court that the conditions justifying
1238
commitment no longer exist, and the administrator of the intermediate care facility
1239
for people with an intellectual disability does not discharge the individual at the end
1240
of the designated period, the court shall order the immediate discharge of the
1241
individual, unless involuntary commitment proceedings are again commenced in
1242
accordance with this section] If at any time during the commitment period the director
1243
or the director's designee determines that the conditions justifying commitment no
1244
longer exist, the division shall immediately discharge the individual from the
1245
commitment and notify the court.
1246
(f) If the division does not discharge an individual at the end of the designated period of
1247
a commitment order, the court shall order the immediate discharge of the individual
1248
unless involuntary commitment proceedings are commenced again in accordance
1249
with this section.
1250
[(e) If the director of the division, or the director's designee reports to the court that the
1251
conditions designated in Subsection (13) still exist, the court may extend the
1252
commitment order for up to one year. At the end of any extension, the individual
- 37 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1253
must be reexamined in accordance with this section, or discharged.]
1254
[(18)] (14) When a resident is discharged under this [subsection] section, the division shall [
1255
provide any further support services available and] continue to provide division services
1256
for which the individual is eligible and as required to meet the resident's needs.
1257
[(19)] (15)(a) The division[ or an intermediate care facility] shall provide discharge
1258
instructions to each individual committed under this section at or before the time the
1259
individual is discharged from the custody of the division[ or intermediate care facility],
1260
regardless of whether the individual is discharged by being released or under other
1261
circumstances.
1262
(b) Discharge instructions provided under Subsection [(19)(a)] (15)(a) shall include:
1263
(i) a summary of why the individual was committed;
1264
(ii) detailed information about why the individual is being discharged;
1265
(iii) a safety plan for the individual based on the individual's intellectual disability
1266
and condition;
1267
(iv) notification to the individual's primary care provider, if applicable;
1268
(v) if the individual is discharged without food, housing, or economic security, a
1269
referral to appropriate services, if such services exist in the individual's
1270
community;
1271
(vi) the phone number to call or text for a crisis services hotline, and information
1272
about the availability of peer support services;
1273
(vii) a copy of any advance directive presented to the local mental health authority, if
1274
applicable;
1275
(viii) information about how to establish an advance directive if one was not
1276
presented to the division[ or intermediate care facility];
1277
(ix) as applicable, information about medications that were changed or discontinued
1278
during the commitment;
1279
(x) a list of any screening or diagnostic tests conducted during the commitment;
1280
(xi) a summary of therapeutic treatments provided during the commitment;
1281
(xii) any laboratory work, including blood samples or imaging, that was completed or
1282
attempted during the commitment; and
1283
(xiii) information about how to contact the division[ or intermediate care facility] if
1284
needed.
1285
(c) If an individual's medications were changed, or if an individual was prescribed new
1286
medications while committed under this section, discharge instructions provided
- 38 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1287
under Subsection [(19)(a)] (15)(a) shall include a clinically appropriate supply of
1288
medications, as determined by a licensed health care provider, to allow the individual
1289
time to access another health care provider or follow-up appointment.
1290
(d) If an individual refuses to accept discharge instructions, the division[ or intermediate
1291
care facility] shall document the refusal in the individual's medical record.
1292
(e) If an individual's discharge instructions include referrals to services under Subsection [
1293
(19)(b)(v)] (15)(b)(v), the division[ or intermediate care facility] shall document those
1294
referrals in the individual's medical record.
1295
(f) The division shall attempt to follow up with a discharged individual at least 48 hours
1296
after discharge, and may use peer support professionals when performing follow-up
1297
care or developing a continuing care plan.
1298
Section 13. Section 26B-6-613 is amended to read:
1299
26B-6-613 . Involuntary treatment with medication -- Committee -- Findings.
1300
(1) If, after commitment, a resident elects to refuse treatment with medication, the director,
1301
the administrator of the intermediate care facility for people with an intellectual
1302
disability, or a designee, shall submit documentation regarding the resident's proposed
1303
treatment to a committee composed of:
1304
(a) a licensed physician experienced in treating persons with an intellectual disability,
1305
who is not directly involved in the resident's treatment or diagnosis, and who is not
1306
biased toward any one facility;
1307
(b) a psychologist who is a designated intellectual disability professional who is not
1308
directly involved in the resident's treatment or diagnosis; and
1309
(c) another designated intellectual disability professional of the facility for persons with
1310
an intellectual disability, or a designee.
1311
(2) Based upon the court's finding, under Subsection [26B-6-608(13)] 26B-6-608(9), that
1312
the resident lacks the ability to engage in a rational decision-making process regarding
1313
the need for habilitation, rehabilitation, care, or treatment, as demonstrated by evidence
1314
of inability to weigh the possible costs and benefits of treatment, the committee may
1315
authorize involuntary treatment with medication if it determines that:
1316
(a) the proposed treatment is in the medical best interest of the resident, taking into
1317
account the possible side effects as well as the potential benefits of the medication;
1318
and
1319
(b) the proposed treatment is in accordance with prevailing standards of accepted
1320
medical practice.
- 39 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1321
(3) In making the determination described in Subsection (2), the committee shall consider
1322
the resident's general history and present condition, the specific need for medication and
1323
its possible side effects, and any previous reaction to the same or comparable medication.
1324
(4) Any authorization of involuntary treatment under this section shall be periodically
1325
reviewed in accordance with rules promulgated by the division.
1326
Section 14. Section 68-3-12.5 is amended to read:
1327
68-3-12.5 . Definitions for Utah Code.
1328
(1) The definitions listed in this section apply to the Utah Code, unless:
1329
(a) the definition is inconsistent with the manifest intent of the Legislature or repugnant
1330
to the context of the statute; or
1331
(b) a different definition is expressly provided for the respective title, chapter, part,
1332
section, or subsection.
1333
(2) "Adjudicative proceeding" means:
1334
(a) an action by a board, commission, department, officer, or other administrative unit of
1335
the state that determines the legal rights, duties, privileges, immunities, or other legal
1336
interests of one or more identifiable persons, including an action to grant, deny,
1337
revoke, suspend, modify, annul, withdraw, or amend an authority, right, or license;
1338
and
1339
(b) judicial review of an action described in Subsection (2)(a).
1340
(3) "Administrator" includes "executor" when the subject matter justifies the use.
1341
(4) "Advisory board," "advisory commission," and "advisory council" mean a board,
1342
commission, committee, or council that:
1343
(a) is created by, and whose duties are provided by, statute or executive order;
1344
(b) performs its duties only under the supervision of another person as provided by
1345
statute; and
1346
(c) provides advice and makes recommendations to another person that makes policy for
1347
the benefit of the general public.
1348
(5) "Armed forces" means the United States Army, Navy, Air Force, Marine Corps, Space
1349
Force, and Coast Guard.
1350
(6) "County executive" means:
1351
(a) the county commission, in the county commission or expanded county commission
1352
form of government established under Title 17, Chapter 52a, Changing Forms of
1353
County Government;
1354
(b) the county executive, in the county executive-council optional form of government
- 40 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1355
authorized by Section 17-52a-203; or
1356
(c) the county manager, in the council-manager optional form of government authorized
1357
by Section 17-52a-204.
1358
(7) "County legislative body" means:
1359
(a) the county commission, in the county commission or expanded county commission
1360
form of government established under Title 17, Chapter 52a, Changing Forms of
1361
County Government;
1362
(b) the county council, in the county executive-council optional form of government
1363
authorized by Section 17-52a-203; and
1364
(c) the county council, in the council-manager optional form of government authorized
1365
by Section 17-52a-204.
1366
(8) "Depose" means to make a written statement made under oath or affirmation.
1367
(9)(a) "Equal" means, with respect to biological sex, of the same value.
1368
(b) "Equal" does not mean, with respect to biological sex:
1369
(i) a characteristic of being the same or identical; or
1370
(ii) a requirement that biological sexes be ignored or co-mingled in every
1371
circumstance.
1372
(10) "Executor" includes "administrator" when the subject matter justifies the use.
1373
(11) "Father" means a parent who is of the male sex.
1374
(12) "Female" means the characteristic of an individual whose biological reproductive
1375
system is of the general type that functions in a way that could produce ova.
1376
(13) "Guardian" includes a person who:
1377
(a) qualifies as a guardian of a minor or incapacitated person pursuant to testamentary or
1378
court appointment; or
1379
(b) is appointed by a court to manage the estate of a minor or incapacitated person.
1380
(14) "Highway" includes:
1381
(a) a public bridge;
1382
(b) a county way;
1383
(c) a county road;
1384
(d) a common road; and
1385
(e) a state road.
1386
(15) "Intellectual disability" [means a significant, subaverage general intellectual
1387
functioning that:] means the same as that term is defined in the most recent edition of the
1388
Diagnostic and Statistical Manual of Mental Disorders published by the American
- 41 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1389
Psychiatric Association.
1390
[(a) exists concurrently with deficits in adaptive behavior; and]
1391
[(b) is manifested during the developmental period as defined in the current edition of
1392
the Diagnostic and Statistical Manual of Mental Disorders, published by the
1393
American Psychiatric Association.]
1394
(16) "Intermediate care facility for people with an intellectual disability" means an [
1395
intermediate care facility for the mentally retarded, as defined in Title XIX of the Social
1396
Security Act] institution or distinct part thereof for people with an intellectual disability
1397
or related conditions, if the institution or distinct part thereof meets the requirements
1398
described in 42 U.S.C. Secs. 1396d(d)(1) through (3).
1399
(17) "Land" includes:
1400
(a) land;
1401
(b) a tenement;
1402
(c) a hereditament;
1403
(d) a water right;
1404
(e) a possessory right; and
1405
(f) a claim.
1406
(18) "Male" means the characteristic of an individual whose biological reproductive system
1407
is of the general type that functions to fertilize the ova of a female.
1408
(19) "Man" means an adult human male.
1409
(20) "Month" means a calendar month, unless otherwise expressed.
1410
(21) "Mother" means a parent who is of the female sex.
1411
(22) "Oath" includes "affirmation."
1412
(23) "Person" means:
1413
(a) an individual;
1414
(b) an association;
1415
(c) an institution;
1416
(d) a corporation;
1417
(e) a company;
1418
(f) a trust;
1419
(g) a limited liability company;
1420
(h) a partnership;
1421
(i) a political subdivision;
1422
(j) a government office, department, division, bureau, or other body of government; and
- 42 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1423
(k) any other organization or entity.
1424
(24) "Personal property" includes:
1425
(a) money;
1426
(b) goods;
1427
(c) chattels;
1428
(d) effects;
1429
(e) evidences of a right in action;
1430
(f) a written instrument by which a pecuniary obligation, right, or title to property is
1431
created, acknowledged, transferred, increased, defeated, discharged, or diminished;
1432
and
1433
(g) a right or interest in an item described in Subsections (24)(a) through (f).
1434
(25) "Personal representative," "executor," and "administrator" include:
1435
(a) an executor;
1436
(b) an administrator;
1437
(c) a successor personal representative;
1438
(d) a special administrator; and
1439
(e) a person who performs substantially the same function as a person described in
1440
Subsections (25)(a) through (d) under the law governing the person's status.
1441
(26) "Policy board," "policy commission," or "policy council" means a board, commission,
1442
or council that:
1443
(a) is authorized to make policy for the benefit of the general public;
1444
(b) is created by, and whose duties are provided by, the constitution or statute; and
1445
(c) performs its duties according to its own rules without supervision other than under
1446
the general control of another person as provided by statute.
1447
(27) "Population" is shown by the most recent state or national census, unless expressly
1448
provided otherwise.
1449
(28) "Process" means a writ or summons issued in the course of a judicial proceeding.
1450
(29) "Property" includes both real and personal property.
1451
(30) "Real estate" or "real property" includes:
1452
(a) land;
1453
(b) a tenement;
1454
(c) a hereditament;
1455
(d) a water right;
1456
(e) a possessory right; and
- 43 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1457
(f) a claim.
1458
(31) "Review board," "review commission," and "review council" mean a board,
1459
commission, committee, or council that:
1460
(a) is authorized to approve policy made for the benefit of the general public by another
1461
body or person;
1462
(b) is created by, and whose duties are provided by, statute; and
1463
(c) performs its duties according to its own rules without supervision other than under
1464
the general control of another person as provided by statute.
1465
(32) "Road" includes:
1466
(a) a public bridge;
1467
(b) a county way;
1468
(c) a county road;
1469
(d) a common road; and
1470
(e) a state road.
1471
(33) "Sex" means, in relation to an individual, the individual's biological sex, either male or
1472
female, at birth, according to distinct reproductive roles as manifested by:
1473
(a) sex and reproductive organ anatomy;
1474
(b) chromosomal makeup; and
1475
(c) endogenous hormone profiles.
1476
(34) "Signature" includes a name, mark, or sign written with the intent to authenticate an
1477
instrument or writing.
1478
(35) "State," when applied to the different parts of the United States, includes a state,
1479
district, or territory of the United States.
1480
(36) "Swear" includes "affirm."
1481
(37) "Testify" means to make an oral statement under oath or affirmation.
1482
(38) "Uniformed services" means:
1483
(a) the armed forces;
1484
(b) the commissioned corps of the National Oceanic and Atmospheric Administration;
1485
and
1486
(c) the commissioned corps of the United States Public Health Service.
1487
(39) "United States" includes each state, district, and territory of the United States of
1488
America.
1489
(40) "Utah Code" means the 1953 recodification of the Utah Code, as amended, unless the
1490
text expressly references a portion of the 1953 recodification of the Utah Code as it
- 44 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1491
existed:
1492
(a) on the day on which the 1953 recodification of the Utah Code was enacted; or
1493
(b)(i) after the day described in Subsection (40)(a); and
1494
(ii) before the most recent amendment to the referenced portion of the 1953
1495
recodification of the Utah Code.
1496
(41) "Vessel," when used with reference to shipping, includes a steamboat, canal boat, and
1497
every structure adapted to be navigated from place to place.
1498
(42)(a) "Veteran" means an individual who:
1499
(i) has served in the United States Armed Forces for at least 180 days:
1500
(A) on active duty; or
1501
(B) in a reserve component, to include the National Guard; or
1502
(ii) has incurred an actual service-related injury or disability while in the United
1503
States Armed Forces regardless of whether the individual completed 180 days; and
1504
(iii) was separated or retired under conditions characterized as honorable or general.
1505
(b) This definition is not intended to confer eligibility for benefits.
1506
(43) "Will" includes a codicil.
1507
(44) "Woman" means an adult human female.
1508
(45) "Writ" means an order or precept in writing, issued in the name of:
1509
(a) the state;
1510
(b) a court; or
1511
(c) a judicial officer.
1512
(46) "Writing" includes:
1513
(a) printing;
1514
(b) handwriting; and
1515
(c) information stored in an electronic or other medium if the information is retrievable
1516
in a perceivable format.
1517
Section 15. Section 77-15-2 is amended to read:
1518
77-15-2 . Definitions.
1519
As used in this chapter:
1520
(1) "Competency evaluation" means an evaluation conducted by a forensic evaluator to
1521
determine if an individual is competent to stand trial.
1522
(2) "Competent to stand trial" means that a defendant has:
1523
(a) a rational and factual understanding of the criminal proceedings against the
1524
defendant and of the punishment specified for the offense charged; and
- 45 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1525
(b) the ability to consult with the defendant's legal counsel with a reasonable degree of
1526
rational understanding in order to assist in the defense.
1527
(3) "Department" means the Department of Health and Human Services.
1528
(4) "Forensic evaluator" means a licensed mental health professional who:
1529
(a) is not involved in the defendant's treatment;
1530
(b) is trained and qualified by the department to conduct a competency evaluation, a
1531
restoration screening, and a progress toward competency evaluation, based on
1532
knowledge, experience, or education relating to:
1533
(i) intellectual functioning or psychopathology; and
1534
(ii) the legal system and the rights of a defendant in a criminal trial; and
1535
(c) if under contract with the department, demonstrates ongoing education and training
1536
relating to forensic mental health in accordance with rules established by the
1537
department in accordance with Title 63G, Chapter 3, Utah Administrative
1538
Rulemaking Act.
1539
(5) "Incompetent to proceed" means that a defendant is not competent to stand trial as a
1540
result of:
1541
(a) mental illness; or
1542
(b) intellectual disability.
1543
[(6) "Intellectual disability" means an intellectual disability as defined in the current edition
1544
of the Diagnostic and Statistical Manual of Mental Disorders published by the American
1545
Psychiatric Association.]
1546
[(7)] (6) "Mental illness" means the same as that term is defined in Section 26B-5-301.
1547
[(8)] (7) "Petition" means a petition to request a court to determine whether a defendant is
1548
competent to stand trial.
1549
[(9)] (8) "Progress toward competency evaluation" means an evaluation to determine
1550
whether an individual who is receiving restoration treatment is:
1551
(a) competent to stand trial;
1552
(b) incompetent to proceed but has a substantial probability of becoming competent to
1553
stand trial in the foreseeable future; or
1554
(c) incompetent to proceed and does not have a substantial probability of becoming
1555
competent to stand trial in the foreseeable future.
1556
[(10)] (9) "Restoration treatment" means training and treatment that is:
1557
(a) provided to an individual who is incompetent to proceed;
1558
(b) tailored to the individual's particular impairment to competency; and
- 46 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1559
(c) limited to the purpose of restoring the individual to competency.
1560
Section 16. Section 77-15-5 is amended to read:
1561
CHAPTER 15. DEFENDANT'S COMPETENCY TO PROCEED
1562
77-15-5 . Order for hearing -- Stay of other proceedings -- Examinations of
1563
defendant -- Scope of examination and report.
1564
(1) A court in which criminal proceedings are pending shall stay all criminal proceedings, if:
1565
(a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
1566
(b) the court raises the issue of the defendant's competency under Section 77-15-4.
1567
(2) The court in which the petition described in Subsection (1)(a) is filed:
1568
(a) shall inform the court in which criminal proceedings are pending of the petition, if
1569
the petition is not filed in the court in which criminal proceedings are pending;
1570
(b) shall review the allegations of incompetency;
1571
(c) may hold a limited hearing solely for the purpose of determining the sufficiency of
1572
the petition, if the court finds the petition is not clearly sufficient on its face;
1573
(d) shall hold a hearing, if the petition is opposed by either party; and
1574
(e) may not order an examination of the defendant or order a hearing on the mental
1575
condition of the defendant unless the court finds that the allegations in the petition
1576
raise a bona fide doubt as to the defendant's competency to stand trial.
1577
(3)(a) If the court finds that there is a bona fide doubt as to the defendant's competency
1578
to stand trial, the court shall order the department to have one or two forensic
1579
evaluators complete a competency evaluation for the defendant in accordance with
1580
Subsection (3)(b) and provide a report to the court regarding the competency of the
1581
defendant to stand trial.
1582
(b) The court shall order the department to have the defendant evaluated by one forensic
1583
evaluator unless:
1584
(i) the defendant is charged with a capital felony; or
1585
(ii) the defendant is charged with a felony that is not a capital felony, and the court
1586
determines, based on the allegations in the petition, that good cause exists to order
1587
two competency evaluations.
1588
(c)(i) This section does not prohibit a party from seeking an additional forensic
1589
evaluator to conduct a competency evaluation of the defendant.
1590
(ii) If a party seeks an additional competency evaluation under this Subsection (3)(c),
1591
the party shall:
1592
(A) select the additional forensic evaluator; and
- 47 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1593
(B) pay the costs of the additional forensic evaluator.
1594
(d) The stipulation by parties to a bona fide doubt as to the defendant's competency to
1595
stand trial alone may not take the place of a competency evaluation ordered under
1596
this Subsection (3).
1597
(e) In accordance with state licensing laws, the court may only order the department to
1598
provide an initial evaluation and progress toward competency evaluation for a
1599
defendant who is located within the state.
1600
(4)(a) If the petition or other information sufficiently raises concerns that the defendant
1601
may have an intellectual disability, at least one forensic evaluator who is experienced
1602
in assessments of intellectual disabilities shall conduct a competency evaluation.
1603
(b) The petitioner or other party, as directed by the court or requested by the department,
1604
shall provide to the forensic evaluator nonmedical information and materials relevant
1605
to a determination of the defendant's competency, including the charging document,
1606
arrest or incident reports pertaining to the charged offense, known criminal history
1607
information, and known prior mental health evaluations and treatments.
1608
(c) For purposes of a competency evaluation, a custodian of mental health records
1609
pertaining to the defendant, including the defendant's prior mental health evaluations
1610
or records relating to the defendant's substance use disorder, may provide the records
1611
to:
1612
(i) with the defendant's consent, a forensic evaluator or the department on the
1613
department's request; or
1614
(ii) a forensic evaluator by court order.
1615
(d) A court order under Subsection (4)(c) shall include a protective order that expires
1616
180 days after the day on which:
1617
(i) the defendant is found guilty;
1618
(ii) the defendant enters a guilty plea;
1619
(iii) the court sentences the defendant; or
1620
(iv) if the case is appealed, the day on which the final appeal is resolved.
1621
(e)(i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f),
1622
the court shall order the forensic evaluator to destroy all records subject to the
1623
protective order within the 180 day period described in Subsection (4)(d).
1624
(ii) A forensic evaluator is not required to destroy the records subject to the
1625
protective order if destroying the records is a violation of ethical standards to
1626
which the forensic evaluator is subject for occupational licensing.
- 48 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1627
(f) The court may extend the protective order described in Subsection (4)(d) if:
1628
(i) the court finds the defendant incompetent to proceed without a substantial
1629
probability that the defendant will become competent in the foreseeable future;
1630
(ii) the prosecutor or another individual indicates to the court that the prosecutor or
1631
other individual will seek civil commitment of the defendant under Section
1632
77-15-6; and
1633
(iii) the court orders the records be maintained and used only for the purposes of
1634
examining the defendant in connection with the petition for civil commitment.
1635
(g) An order for a competency evaluation may not contain an order for any other inquiry
1636
into the mental state of the defendant that is not described in this Subsection (4).
1637
(5) Pending a competency evaluation, unless the court or the department directs otherwise,
1638
the defendant shall be retained in the same custody or status that the defendant was in at
1639
the time the examination was ordered.
1640
(6) In the conduct of a competency evaluation and in a report to the court, a forensic
1641
evaluator shall consider and address, in addition to any other factors determined to be
1642
relevant by the forensic evaluator:
1643
(a)[(i)] the impact of the defendant's mental illness or intellectual disability on the
1644
defendant's present ability to:
1645
[(A)] (i) rationally and factually understand the criminal proceedings against the
1646
defendant; and
1647
[(B)] (ii) consult with the defendant's legal counsel with a reasonable degree of
1648
rational understanding in order to assist in the defense;
1649
(b) in making the determinations described in Subsection (6)(a), the forensic evaluator
1650
shall consider, as applicable[:]
1651
[(i)] the defendant's present ability to:
1652
[(A)] (i) understand the charges or allegations against the defendant;
1653
[(B)] (ii) communicate facts, events, and states of mind;
1654
[(C)] (iii) understand the range of possible penalties associated with the charges or
1655
allegations against the defendant;
1656
[(D)] (iv) engage in reasoned choice of legal strategies and options;
1657
[(E)] (v) understand the adversarial nature of the proceedings against the defendant;
1658
[(F)] (vi) manifest behavior sufficient to allow the court to proceed; and
1659
[(G)] (vii) testify relevantly, if applicable; and
1660
(c) whether the defendant is exhibiting false or exaggerated physical or psychological
- 49 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1661
symptoms relevant to the defendant's capacity to stand trial.
1662
(7) Upon a determination that the defendant is incompetent to proceed, the forensic
1663
evaluator shall indicate in the report to the court:
1664
(a) the factors that contribute to the defendant's incompetency, including the nature of
1665
the defendant's mental illness or intellectual disability, if any, and its relationship to
1666
the factors contributing to the defendant's incompetency;
1667
(b) whether there is a substantial probability that:
1668
(i) restoration treatment may bring the defendant to competency to stand trial in the
1669
foreseeable future; or
1670
(ii) the defendant cannot become competent to stand trial in the foreseeable future;
1671
(c) whether the defendant would benefit from restoration treatment; and
1672
(d) if the forensic evaluator makes the determination under Subsection (7)(b)(i) or (7)(c),
1673
an explanation of the reason for the determination and a summary of the treatment
1674
provided to the defendant in the past.
1675
(8)(a) A forensic evaluator shall provide an initial report to the court and the prosecuting
1676
and defense attorneys within 30 days of the receipt of the court's order. The report
1677
shall inform the court of the examiner's opinion concerning the competency of the
1678
defendant to stand trial.
1679
(b)(i) If the forensic evaluator is unable to complete the report in the time specified in
1680
Subsection (8)(a), the forensic evaluator shall give written notice to the court.
1681
(ii) A forensic evaluator who provides the notice described in Subsection (8)(b)(i)
1682
shall receive a 15-day extension, giving the forensic evaluator a total of 45 days
1683
after the day on which the forensic evaluator received the court's order to conduct
1684
a competency evaluation and file a report.
1685
(iii) The court may further extend the deadline for completion of the evaluation and
1686
report if the court determines that there is good cause for the extension.
1687
(iv) Upon receipt of an extension described in Subsection (8)(b)(iii), the forensic
1688
evaluator shall file the report as soon as reasonably possible.
1689
(9) Any written report submitted by a forensic evaluator shall:
1690
(a) identify the case ordered for evaluation by the case number;
1691
(b) describe the procedures, techniques, and tests used in the examination and the
1692
purpose or purposes for each, the time spent by the forensic evaluator with the
1693
defendant for purposes of the examination, and the compensation to be paid to the
1694
evaluator for the report;
- 50 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1695
(c) state the forensic evaluator's clinical observations, findings, and opinions on each
1696
factor described in Subsection (6); and
1697
(d) identify the sources of information used by the forensic evaluator and present the
1698
basis for the forensic evaluator's clinical findings and opinions.
1699
(10)(a) Any statement made by the defendant in the course of any competency
1700
examination, whether the examination is with or without the consent of the
1701
defendant, any testimony by a forensic evaluator based upon the statement, and any
1702
other fruits of the statement may not be admitted in evidence against the defendant in
1703
any criminal proceeding except on an issue respecting mental condition on which the
1704
defendant has introduced evidence, unless the evidence is relevant to a determination
1705
of the defendant's competency.
1706
(b) Before examining the defendant, the forensic evaluator shall specifically advise the
1707
defendant of the limits of confidentiality as provided under Subsection (10)(a).
1708
(11)(a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
1709
competency hearing. The hearing shall be held not less than five and not more than
1710
15 days after the day on which the court received the forensic evaluators' reports,
1711
unless for good cause the court sets a later date.
1712
(b) Any person directed by the department to conduct the competency evaluation may be
1713
subpoenaed to testify at the hearing.
1714
(c) The court may call any forensic evaluator to testify at the hearing who is not called
1715
by the parties. [ ]If the court calls a forensic evaluator, counsel for the parties may
1716
cross-examine the forensic evaluator.
1717
(d)(i) If the forensic evaluators are in conflict as to the competency of the defendant,
1718
all forensic evaluators should be called to testify at the hearing if reasonably
1719
available.
1720
(ii) A conflict in the opinions of the forensic evaluators does not require the
1721
appointment of an additional forensic evaluator unless the court finds good cause
1722
for the appointment.
1723
(iii) If a party seeks an additional competency evaluation under this Subsection (11),
1724
that party shall:
1725
(A) select the additional forensic evaluator; and
1726
(B) pay the costs of the additional forensic evaluator.
1727
(12)(a)(i) A defendant shall be presumed competent to stand trial unless the court, by
1728
a preponderance of the evidence, finds the defendant incompetent to proceed.
- 51 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1729
(ii) The burden of proof is upon the proponent of incompetency at the hearing.
1730
(b) An adjudication of incompetent to proceed does not operate as an adjudication of
1731
incompetency to give informed consent for medical treatment or for any other
1732
purpose, unless specifically set forth in the court order.
1733
(13) In determining the defendant's competency to stand trial, the court shall consider the
1734
totality of the circumstances, including:
1735
(a) the petition;
1736
(b) the defendant's criminal and arrest history;
1737
(c) prior mental health evaluations and treatments provided to the court by the defendant;
1738
(d) subject to Subsection (15), whether the defendant was found incompetent to proceed
1739
in a criminal action unrelated to the charged offense for which the petition is filed;
1740
(e) the testimony of lay witnesses, if any;
1741
(f) the forensic evaluator's testimony and report;
1742
(g) the materials on which the forensic evaluator's report is based; and
1743
(h) any other relevant evidence or consideration bearing on the competency of the
1744
defendant.
1745
(14) If the court finds the defendant incompetent to proceed:
1746
(a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
1747
(i) include findings addressing each of the factors in Subsection (6)(a);
1748
(ii) include a transportation order, if necessary;
1749
(iii) be accompanied by the forensic evaluators' reports, any psychiatric,
1750
psychological, or social work reports submitted to the court relative to the mental
1751
condition of the defendant, and any other documents made available to the court
1752
by either the defense or the prosecution, pertaining to the defendant's current or
1753
past mental condition; and
1754
(iv) be sent by the court to the department; and
1755
(b) the prosecuting attorney shall provide to the department:
1756
(i) the charging document and probable cause statement, if any;
1757
(ii) arrest or incident reports prepared by law enforcement and pertaining to the
1758
charged offense; and
1759
(iii) additional supporting documents.
1760
(15) The court may not find the defendant incompetent to proceed based solely on a court
1761
having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6
1762
in an unrelated criminal action if the court in the unrelated criminal action ordered the
- 52 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1763
release more than one year before the day on which the petition described in Subsection
1764
(13)(a) is filed.
1765
(16) The court may make any reasonable order to ensure compliance with this section.
1766
(17) Failure to comply with this section does not result in the dismissal of criminal charges.
1767
Section 17. Section 77-15-6 is amended to read:
1768
77-15-6 . Commitment on finding of incompetency to stand trial -- Subsequent
1769
hearings -- Notice to prosecuting attorneys.
1770
(1)(a) Except as provided in Subsection (5), if after a hearing a court finds a defendant to
1771
be incompetent to proceed, the court shall order the defendant committed to the
1772
department for restoration treatment.
1773
(b)(i) Except as provided in Subsection (1)(b)(ii), the court may recommend but may
1774
not order placement of a defendant who is found incompetent to proceed.
1775
(ii) The court may order that the defendant be placed in a secure setting rather than a
1776
nonsecure setting.
1777
(c) Following restoration screening, the department's designee shall designate and
1778
inform the court of the specific placement and restoration treatment program for the
1779
defendant.
1780
(d) Restoration treatment shall be of sufficient scope and duration to:
1781
(i) restore the defendant to competency; or
1782
(ii) determine whether the defendant can be restored to competency in the foreseeable
1783
future.
1784
(e) A defendant who a court determines is incompetent to proceed may not be held for
1785
restoration treatment longer than:
1786
(i) the time reasonably necessary to determine that the defendant cannot become
1787
competent to stand trial in the foreseeable future; and
1788
(ii) the maximum period of incarceration that the defendant could receive if the
1789
defendant were convicted of the most severe offense of the offenses charged.
1790
(2)(a) A defendant who is receiving restoration treatment shall receive a progress toward
1791
competency evaluation, by:
1792
(i) a forensic evaluator, designated by the department; and
1793
(ii) an additional forensic evaluator, if requested by a party and paid for by the
1794
requesting party.
1795
(b) A forensic evaluator shall complete a progress toward competency evaluation and
1796
submit a report within 90 days after the day on which the forensic evaluator receives
- 53 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1797
the commitment order from the department.
1798
(c) The report shall:
1799
(i) assess whether the defendant is exhibiting false or exaggerated physical or
1800
psychological symptoms;
1801
(ii) describe any diagnostic instruments, methods, and observations used by the
1802
evaluator to make the determination;
1803
(iii) describe the defendant's current mental illness or intellectual disability, if any;
1804
(iv) state the forensic evaluator's opinion as to the effect of any false or exaggerated
1805
symptoms on the defendant's competency to stand trial;
1806
(v) assess the facility's or program's capacity to provide appropriate restoration
1807
treatment for the defendant;
1808
(vi) assess the nature of restoration treatment provided to the defendant;
1809
(vii) assess what progress the defendant has made toward competency restoration,
1810
with respect to the factors identified by the court in its initial order;
1811
(viii) assess whether the defendant can reasonably be restored to competency in the
1812
foreseeable future given the restoration treatment currently being provided and the
1813
facility's or program's capacity to provide appropriate restoration treatment for the
1814
defendant;
1815
(ix) assess the likelihood of restoration to competency, the amount of time estimated
1816
to achieve competency, or the amount of time estimated to determine whether
1817
restoration to competency may be achieved; and
1818
(x) include a statement by the facility's treating physician regarding:
1819
(A) whether the defendant is taking any antipsychotic medication as prescribed;
1820
(B) whether ongoing administration of antipsychotic medication is necessary to
1821
maintain the defendant's competency to stand trial;
1822
(C) whether antipsychotic medication is substantially likely to maintain the
1823
defendant's competency to stand trial;
1824
(D) whether antipsychotic medication is substantially unlikely to produce side
1825
effects which would significantly interfere with the defendant's ability to assist
1826
in the defendant's defense;
1827
(E) that no less intrusive means are available, and whether any of those means
1828
have been attempted to render the defendant competent; and
1829
(F) whether antipsychotic medication is medically appropriate and in the
1830
defendant's best medical interest in light of the defendant's medical condition.
- 54 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1831
(3)(a) The court on its own motion or upon motion by either party or the department
1832
may appoint an additional forensic evaluator to conduct a progress toward
1833
competency evaluation.
1834
(b) If the court appoints an additional forensic evaluator upon motion of a party, that
1835
party shall pay the costs of the additional forensic evaluator.
1836
(4)(a) Within 15 days after the day on which the court receives the forensic evaluator's
1837
report of the progress toward competency evaluation, the court shall hold a hearing to
1838
review the defendant's competency.
1839
(b) At the hearing, the burden of proving that the defendant is competent to stand trial is
1840
on the proponent of competency.
1841
(c) Following the hearing, the court shall determine by a preponderance of evidence
1842
whether the defendant:
1843
(i) is competent to stand trial;
1844
(ii) is competent, but requires the ongoing administration of antipsychotic medication
1845
in order to maintain the defendant's competency to stand trial;
1846
(iii) is incompetent to proceed, with a substantial probability that the defendant may
1847
become competent in the foreseeable future; or
1848
(iv) is incompetent to proceed, without a substantial probability that the defendant
1849
may become competent in the foreseeable future.
1850
(5)(a) If at any time the court determines that the defendant is competent to stand trial,
1851
the court shall:
1852
(i) proceed with the trial or other procedures as may be necessary to adjudicate the
1853
charges;
1854
(ii) order that the defendant be returned to the placement and status that the defendant
1855
was in at the time when the petition for the adjudication of competency was filed
1856
or raised by the court, unless the court determines that placement of the defendant
1857
in a less restrictive environment is more appropriate;
1858
(iii) order the ongoing administration of antipsychotic medication to the defendant for
1859
the purpose of maintaining the defendant's competency to stand trial, if the court
1860
finds that the administration of antipsychotic medication is necessary to maintain
1861
the defendant's competency to stand trial under Subsection (4)(c)(ii); and
1862
(iv) require the agency, jail, or prison with custody over the defendant to report to the
1863
court any noncompliance with the court's orders under this Subsection (5) within
1864
48 hours of the noncompliance.
- 55 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1865
(b) If the court determines that the defendant is incompetent to proceed with a
1866
substantial probability that the defendant may become competent in the foreseeable
1867
future, the court may order that the defendant remain committed to the department or
1868
the department's designee for the purpose of restoration treatment.
1869
(c)(i) If the court determines that the defendant is incompetent to proceed without a
1870
substantial probability that the defendant may become competent in the
1871
foreseeable future, the court shall order the defendant released from commitment
1872
to the department, unless the prosecutor or another individual informs the court
1873
that civil commitment proceedings pursuant to Title 26B, Chapter 5, Health Care -
1874
Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of
1875
Services for People with Disabilities, will be initiated.
1876
(ii) The commitment proceedings must be initiated by a petition filed within seven
1877
days after the day on which the court makes the determination described in
1878
Subsection (4)(c)(iv), unless the court finds that there is good cause to delay the
1879
initiation of the civil commitment proceedings.
1880
(iii) The court may order the defendant to remain committed to the department until
1881
the civil commitment proceedings conclude.
1882
(iv) If the defendant is civilly committed and admitted to a secure setting, the
1883
department shall provide notice to the court that adjudicated the defendant
1884
incompetent to proceed and to the prosecution agency that prosecuted the case at
1885
least [60] 15 days before any proposed release of the committed individual from
1886
the secure setting.
1887
(v) If the prosecution agency that prosecuted the case intends to refile charges against
1888
the committed individual:
1889
(A) the prosecution agency shall provide written notice of that intent to the
1890
department within 15 days after the department provides the notice described
1891
in Subsection (5)(c)(iv); and
1892
(B) the department shall postpone release of the committed individual for at least
1893
30 days after the day on which the department receives the written notice of
1894
intent from the prosecution agency.
1895
(vi) If the prosecution agency that prosecuted the case refiles charges against the
1896
committed individual and the individual's competency is raised, the department
1897
shall postpone release of the individual until the competency proceedings
1898
conclude.
- 56 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1899
(6)(a) At any time following the court's order under Subsection (5)(a)(iii), the defendant,
1900
the prosecuting attorney, the department, the treating physician, or the agency, jail, or
1901
prison with custody over the defendant, may notify the court of the need to review
1902
the medication order under Subsection (5)(a)(iii) for continued appropriateness and
1903
feasibility.
1904
(b) The court shall set the matter for a hearing if the notification under Subsection (6)(a)
1905
establishes good cause to review the matter.
1906
(7) If a court, under Subsection (5)(b), extends a defendant's commitment, the court shall
1907
schedule a competency review hearing for the earlier of:
1908
(a) the department's best estimate of when the defendant may be restored to competency;
1909
or
1910
(b) three months after the day on which the court determined under Subsection (5)(b) to
1911
extend the defendant's commitment.
1912
(8) Unless the defendant is charged with a crime listed in Subsection (9), if a defendant is
1913
incompetent to proceed by the day of the competency review hearing that follows the
1914
extension of a defendant's commitment, the court shall:
1915
(a) order the defendant be:
1916
(i) released or temporarily detained pending civil commitment proceedings as
1917
described in Subsection (5)(c); and
1918
(ii) terminate the defendant's commitment to the department for restoration treatment;
1919
or
1920
(b) if the forensic evaluator reports to the court that there is a substantial probability that
1921
restoration treatment will bring the defendant to competency to stand trial in the
1922
foreseeable future, extend the defendant's commitment for restoration treatment up to
1923
45 additional days.
1924
(9) If the defendant is charged with aggravated murder, murder, attempted murder,
1925
manslaughter, or a first degree felony and the court determines that the defendant is
1926
making reasonable progress towards restoration of competency at the time of the hearing
1927
held pursuant to Subsection (7), the court may extend the commitment for a period not
1928
to exceed nine months for the purpose of restoration treatment, with a mandatory review
1929
hearing at the end of the nine-month period.
1930
(10) Unless the defendant is charged with aggravated murder or murder, if, at the
1931
nine-month review hearing described in Subsection (9), the court determines that the
1932
defendant is incompetent to proceed, the court shall:
- 57 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
1933
(a)(i) order the defendant be released or temporarily detained pending civil
1934
commitment proceedings as provided in Subsection (5)(c); and
1935
(ii) terminate the defendant's commitment to the department for restoration treatment;
1936
or
1937
(b) if the forensic evaluator reports to the court that there is a substantial probability that
1938
restoration treatment will bring the defendant to competency to stand trial in the
1939
foreseeable future, extend the defendant's commitment for restoration treatment for
1940
up to 135 additional days.
1941
(11) If the defendant is charged with aggravated murder or murder and the court determines
1942
that the defendant is making reasonable progress towards restoration of competency at
1943
the time of the nine-month review hearing described in Subsection (9), the court may
1944
extend the commitment for a period not to exceed 24 months for the purpose of
1945
restoration treatment.
1946
(12) If the court extends the defendant's commitment term under Subsection (11), the court
1947
shall hold a hearing no less frequently than at 12-month intervals following the
1948
extension for the purpose of determining the defendant's competency status.
1949
(13) If, at the end of the 24-month commitment period described in Subsection (11), the
1950
court determines that the defendant is incompetent to proceed, the court shall:
1951
(a)(i) order the defendant be released or temporarily detained pending civil
1952
commitment proceedings as provided in Subsection (5)(c); and
1953
(ii) terminate the defendant's commitment to the department for restoration treatment;
1954
or
1955
(b) if the forensic evaluator reports to the court that there is a substantial probability that
1956
restoration treatment will bring the defendant to competency to stand trial in the
1957
foreseeable future, extend the defendant's commitment for restoration treatment for
1958
up to 12 additional months.
1959
(14)(a) Neither release from a pretrial incompetency commitment under the provisions
1960
of this section nor civil commitment requires dismissal of criminal charges.
1961
(b) The court may retain jurisdiction over the criminal case and may order periodic
1962
reviews.
1963
(15) A defendant who is civilly committed pursuant to Title 26B, Chapter 5, Health Care -
1964
Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of Services
1965
for People with Disabilities, may still be adjudicated competent to stand trial under this
1966
chapter.
- 58 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
1967
(16)(a) The remedy for a violation of the time periods specified in this section, other
1968
than those specified in Subsection (5)(c), (8), (10), or (13), shall be a motion to
1969
compel the hearing, or mandamus, but not release from detention or dismissal of the
1970
criminal charges.
1971
(b) The remedy for a violation of the time periods specified in Subsection (5)(c), (8), (9),
1972
or (13), or is not dismissal of the criminal charges.
1973
(17) In cases in which the treatment of the defendant is precluded by court order for a
1974
period of time, that time period may not be considered in computing time limitations
1975
under this section.
1976
(18)(a) If, at any time, the defendant becomes competent to stand trial while the
1977
defendant is committed to the department, the clinical director of the Utah State
1978
Hospital, the department, or the department's designee shall certify that fact to the
1979
court.
1980
(b) The court shall conduct a competency review hearing:
1981
(i) within 15 working days after the day on which the court receives the certification
1982
described in Subsection (18)(a); or
1983
(ii) within 30 working days after the day on which the court receives the certification
1984
described in Subsection (18)(a), if the court determines that more than 15 working
1985
days are necessary for good cause related to the defendant's competency.
1986
(19) The court may order a hearing at any time on the court's own motion or upon
1987
recommendations of the clinical director of the Utah State Hospital or other facility or
1988
the department.
1989
(20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
1990
attorney and all counsel of record.
1991
Section 18. Section 77-19-203 is amended to read:
1992
77-19-203 . Petition for inquiry as to competency to be executed -- Filing --
1993
Contents -- Successive petitions.
1994
(1) If an inmate who has been sentenced to death is or becomes incompetent to be executed,
1995
a petition under Subsection (2) may be filed in the district court of the county where the
1996
inmate is confined.
1997
(2) The petition shall:
1998
(a) contain a certificate stating that it is filed in good faith and on reasonable grounds to
1999
believe the inmate is incompetent to be executed; and
2000
(b) contain a specific recital of the facts, observations, and conversations with the inmate
- 59 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
2001
that form the basis for the petition.
2002
(3) The petition may be based upon knowledge or information and belief and may be filed
2003
by the inmate alleged to be incompetent, legal counsel for the inmate, or by an attorney
2004
representing the state.
2005
(4) Before ruling on a petition filed by an inmate or his counsel alleging that the inmate is
2006
incompetent to be executed, the court shall give the state and the Department of
2007
Corrections an opportunity to respond to the allegations of incompetency.
2008
(5) If a petition is filed after an inmate has previously been found competent under either
2009
this chapter or under [Title 77, Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
2010
Defendant's Competency to Proceed, no further hearing on competency may be granted
2011
unless the successive petition:
2012
(a) alleges with specificity a substantial change of circumstances subsequent to the
2013
previous determination of competency; and
2014
(b) is sufficient to raise a significant question about the inmate's competency to be
2015
executed.
2016
Section 19. Section 77-29-3 is amended to read:
2017
77-29-3 . Chapter inapplicable to incompetent persons.
2018
The provisions of this chapter shall not apply to any person while adjudged to be
2019
incompetent to proceed under [Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
2020
Defendant's Competency to Proceed.
2021
Section 20. Section 80-6-402 is amended to read:
2022
80-6-402 . Procedure -- Standard.
2023
(1) When a written motion is filed in accordance with Section 80-6-401 [ ]raising the issue
2024
of a minor's competency to proceed, or when the juvenile [ ]court raises the issue of a
2025
minor's competency to proceed, the juvenile court shall stay all proceedings under this
2026
chapter .
2027
(2)(a) If a motion for inquiry is opposed by either party, the juvenile [ ]court shall,
2028
before granting or denying the motion, hold a limited hearing solely for the purpose
2029
of determining the sufficiency of the motion.
2030
(b) If the juvenile [ ]court finds that the allegations of incompetency raise a bona fide
2031
doubt as to the minor's competency to proceed, the juvenile court shall:
2032
(i) enter an order for an evaluation of the minor's competency to proceed; and
2033
(ii) set a date for a hearing on the issue of the minor's competency.
2034
(3)(a) After the granting of a motion, and before a full competency hearing, the juvenile [ ]
- 60 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
2035
court may order the department to evaluate the minor and to report to the juvenile [ ]
2036
court concerning the minor's mental condition.
2037
(b) In accordance with state licensing laws, the court may only order the department to
2038
provide an initial evaluation and progress toward competency evaluation for a minor
2039
who is located within the state.
2040
(4) The minor shall be evaluated by a forensic evaluator who:
2041
(a) has experience in juvenile forensic evaluations and juvenile brain development;
2042
(b) if it becomes apparent that the minor is not competent due to an intellectual disability
2043
or related condition, has experience in intellectual disability or related conditions; and
2044
(c) is not involved in the current treatment of the minor.
2045
(5) The petitioner or other party, as directed by the juvenile court, shall provide all
2046
information and materials relevant to a determination of the minor's competency to the
2047
department within seven days of the juvenile court's order, including:
2048
(a) the motion;
2049
(b) the arrest or incident reports pertaining to the charged offense;
2050
(c) the minor's known delinquency history information;
2051
(d) the minor's probation record relevant to competency;
2052
(e) known prior mental health evaluations and treatments; and
2053
(f) consistent with 20 U.S.C. Sec. 1232g (b)(1)(E)(ii)(I), records pertaining to the
2054
minor's education.
2055
(6)(a) The minor's parent or guardian, the prosecuting attorney, the defense attorney, and
2056
the attorney guardian ad litem, shall cooperate, by executing releases of information
2057
when necessary, in providing the relevant information and materials to the forensic
2058
evaluator, including:
2059
(i) medical records;
2060
(ii) prior mental evaluations; or
2061
(iii) records of diagnosis or treatment of substance abuse disorders.
2062
(b) The minor shall cooperate, by executing a release of information when necessary, in
2063
providing the relevant information and materials to the forensic evaluator regarding
2064
records of diagnosis or treatment of a substance abuse disorder.
2065
(7)(a) In conducting the evaluation and in the report determining if a minor is competent
2066
to proceed, the forensic evaluator shall inform the juvenile court of the forensic
2067
evaluator's opinion whether:
2068
(i) the minor has a present ability to consult with counsel with a reasonable degree of
- 61 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
2069
rational understanding; and
2070
(ii) the minor has a rational as well as factual understanding of the proceedings.
2071
(b) In evaluating the minor, the forensic evaluator shall consider the minor's present
2072
ability to:
2073
(i) understand the charges or allegations against the minor;
2074
(ii) communicate facts, events, and states of mind;
2075
(iii) understand the range of possible penalties associated with the allegations against
2076
the minor;
2077
(iv) engage in reasoned choice of legal strategies and options;
2078
(v) understand the adversarial nature of the proceedings against the minor;
2079
(vi) manifest behavior sufficient to allow the juvenile court to proceed;
2080
(vii) testify relevantly; and
2081
(viii) any other factor determined to be relevant to the forensic evaluator.
2082
(8)(a) The forensic evaluator shall provide an initial report to the juvenile court, the
2083
prosecuting and defense attorneys, and the attorney guardian ad litem, if applicable,
2084
within 30 days of the receipt of the juvenile court's order.
2085
(b) If the forensic evaluator informs the juvenile court that additional time is needed, the
2086
juvenile court may grant, taking into consideration the custody status of the minor, up
2087
to an additional 15 days to provide the report to the juvenile court and counsel.
2088
(c) The forensic evaluator must provide the report within 45 days from the receipt of the
2089
juvenile court's order unless, for good cause shown, the juvenile court authorizes an
2090
additional period of time to complete the evaluation and provide the report.
2091
(d) The report shall inform the juvenile court of the forensic evaluator's opinion
2092
concerning the minor's competency.
2093
(9) If the forensic evaluator's opinion is that the minor is not competent to proceed, the
2094
report shall indicate:
2095
(a) the nature of the minor's:
2096
(i) mental illness;
2097
(ii) intellectual disability or related condition; or
2098
(iii) developmental immaturity;
2099
(b) the relationship of the minor's mental illness, intellectual disability, related condition,
2100
or developmental immaturity to the minor's incompetence;
2101
(c) whether there is a substantial likelihood that the minor may attain competency in the
2102
foreseeable future;
- 62 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
2103
(d) the amount of time estimated for the minor to achieve competency if the minor
2104
undergoes competency attainment treatment, including medication;
2105
(e) the sources of information used by the forensic evaluator; and
2106
(f) the basis for clinical findings and opinions.
2107
(10) Regardless of whether a minor consents to a competency evaluation, any statement
2108
made by the minor in the course of the competency evaluation, any testimony by the
2109
forensic evaluator based upon any statement made by the minor in the competency
2110
evaluation, and any other fruits of the statement made by the minor in the competency
2111
evaluation:
2112
(a) may not be admitted in evidence against the minor in a proceeding under this
2113
chapter, except the statement may be admitted on an issue respecting the mental
2114
condition on which the minor has introduced evidence; and
2115
(b) may be admitted where relevant to a determination of the minor's competency.
2116
(11) Before evaluating the minor for a competency evaluation, a forensic evaluator shall
2117
specifically advise the minor, and the minor's parent or guardian if reasonably available,
2118
of the limits of confidentiality as provided under Subsection (10).
2119
(12) When the report is received, the juvenile court shall set a date for a competency
2120
hearing that shall be held in not less than five and not more than 15 days, unless the
2121
juvenile court enlarges the time for good cause.
2122
(13)(a) A minor shall be presumed competent unless the juvenile court, by a
2123
preponderance of the evidence, finds the minor not competent to proceed.
2124
(b) The burden of proof is upon the proponent of incompetency to proceed.
2125
(14)(a) Following the hearing, the juvenile court shall determine by a preponderance of
2126
evidence whether the minor is:
2127
(i) competent to proceed;
2128
(ii) not competent to proceed with a substantial probability that the minor may attain
2129
competency in the foreseeable future; or
2130
(iii) not competent to proceed without a substantial probability that the minor may
2131
attain competency in the foreseeable future.
2132
(b) If the juvenile court enters a finding described in Subsection (14)(a)(i), the juvenile
2133
court shall proceed with the proceedings in the minor's case.
2134
(c) If the juvenile court enters a finding described in Subsection (14)(a)(ii), the juvenile
2135
court shall proceed in accordance with Section 80-6-403.
2136
(d)(i) If the juvenile court enters a finding described in Subsection (14)(a)(iii), the
- 63 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
2137
juvenile court shall terminate the competency proceeding, dismiss the charges
2138
against the minor without prejudice, and release the minor from any custody order
2139
related to the pending proceeding, unless the prosecutor informs the court that
2140
commitment proceedings will be initiated in accordance with:
2141
(A) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
2142
People with an Intellectual Disability;
2143
(B) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
2144
Hospital and Other Mental Health Facilities; or
2145
(C) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
2146
Under Age 18.
2147
(ii) The commitment proceedings described in Subsection (14)(d)(i) shall be initiated
2148
within seven days after the day on which the juvenile court enters the order under
2149
Subsection (14)(a), unless the court enlarges the time for good cause shown.
2150
(iii) The juvenile court may order the minor to remain in custody until the
2151
commitment proceedings have been concluded.
2152
(15) If the juvenile court finds the minor not competent to proceed, the juvenile court's
2153
order shall contain findings addressing each of the factors in Subsection (7)(b).
2154
Section 21. Section 80-6-403 is amended to read:
2155
80-6-403 . Disposition on finding of not competent to proceed -- Subsequent
2156
hearings -- Notice to prosecuting attorneys.
2157
(1) If the juvenile court determines that the minor is not competent to proceed, and there is
2158
a substantial likelihood that the minor may attain competency in the foreseeable future,
2159
the juvenile court shall notify the department of the finding and allow the department 30
2160
days to develop an attainment plan for the minor.
2161
(2) The attainment plan shall include:
2162
(a) any services or treatment the minor has been or is currently receiving that are
2163
necessary to attain competency;
2164
(b) any additional services or treatment the minor may require to attain competency;
2165
(c) an assessment of the parent, custodian, or guardian's ability to access or provide any
2166
recommended treatment or services;
2167
(d) any special conditions or supervision that may be necessary for the safety of the
2168
minor or others during the attainment period; and
2169
(e) the likelihood that the minor will attain competency and the amount of time likely
2170
required for the minor to attain competency.
- 64 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
2171
(3) The department shall provide the attainment plan to the juvenile court, the prosecuting
2172
attorney, the defense attorney, and the attorney guardian ad litem at least three days
2173
before the competency disposition hearing.
2174
(4)(a) During the attainment period, the minor shall remain in the least restrictive
2175
appropriate setting.
2176
(b) A finding of not competent to proceed does not grant authority for a juvenile court to
2177
place a minor in the custody of a division of the department, or create eligibility for
2178
services from the Division of Services for People With Disabilities.
2179
(c) If the juvenile court orders the minor to be held in detention during the attainment
2180
period, the juvenile court shall make the following findings on the record:
2181
(i) the placement is the least restrictive appropriate setting;
2182
(ii) the placement is in the best interest of the minor;
2183
(iii) the minor will have access to the services and treatment required by the
2184
attainment plan in the placement; and
2185
(iv) the placement is necessary for the safety of the minor or others.
2186
(d) A juvenile court shall terminate an order of detention related to the pending
2187
proceeding for a minor who is not competent to proceed in that matter if:
2188
(i) the most severe allegation against the minor if committed by an adult is a class B
2189
misdemeanor;
2190
(ii) more than 60 days have passed after the day on which the juvenile court
2191
adjudicated the minor not competent to proceed; and
2192
(iii) the minor has not attained competency.
2193
(5)(a) At any time that the minor becomes competent to proceed during the attainment
2194
period, the department shall notify the juvenile court, the prosecuting attorney, the
2195
defense attorney, and the attorney guardian ad litem.
2196
(b) The juvenile court shall hold a hearing with 15 business days of notice from the
2197
department described in Subsection (5)(a).
2198
(6)(a) If at any time during the attainment period the juvenile court finds that there is not
2199
a substantial probability that the minor will attain competency in the foreseeable
2200
future, the juvenile court shall terminate the competency proceeding, dismiss the
2201
petition or information without prejudice, and release the minor from any custody
2202
order related to the pending proceeding, unless the prosecuting attorney or any other
2203
individual informs the juvenile court that commitment proceedings will be initiated in
2204
accordance with:
- 65 - 3rd Sub. (Cherry) H.B. 276 02-24 13:09
2205
(i) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
2206
People with an Intellectual Disability;
2207
(ii) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
2208
Hospital and Other Mental Health Facilities; or
2209
(iii) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
2210
Under Age 18.
2211
(b) The prosecuting attorney shall initiate the proceedings described in Subsection (6)(a)
2212
within seven days after the juvenile court's order, unless the juvenile court enlarges
2213
the time for good cause shown.
2214
(7) During the attainment period, the juvenile court may order a hearing or rehearing at
2215
anytime on the juvenile court's own motion or upon recommendation of any interested
2216
party or the department.
2217
(8)(a) Within three months of the juvenile court's approval of the attainment plan, the
2218
department shall provide a report on the minor's progress towards competence.
2219
(b) The report described in Subsection (8)(a) shall address the minor's:
2220
(i) compliance with the attainment plan;
2221
(ii) progress towards competency based on the issues identified in the original
2222
competency evaluation; and
2223
(iii) current mental illness, intellectual disability or related condition, or
2224
developmental immaturity, and need for treatment, if any, and whether there is
2225
substantial likelihood of the minor attaining competency within six months.
2226
(9)(a) Within 30 days of receipt of the report, the juvenile court shall hold a hearing to
2227
determine the minor's current status.
2228
(b) At the hearing, the burden of proving the minor is competent is on the proponent of
2229
competency.
2230
(c) The juvenile court shall determine by a preponderance of the evidence whether the
2231
minor is competent to proceed.
2232
(10) If the minor has not attained competency after the initial three month attainment period
2233
but is showing reasonable progress towards attainment of competency, the juvenile court
2234
may extend the attainment period up to an additional three months.
2235
(11) The department shall provide an updated juvenile competency evaluation at the
2236
conclusion of the [six month] extended attainment period under Subsection (10) to advise
2237
the juvenile court on the minor's current competency status.
2238
(12) If the minor does not attain competency within six months after the juvenile court
- 66 - 02-24 13:09 3rd Sub. (Cherry) H.B. 276
2239
initially finds the minor not competent to proceed, the court shall terminate the
2240
competency proceedings and dismiss the petition or information filed without prejudice,
2241
unless good cause is shown that there is a substantial likelihood the minor will attain
2242
competency within one year from the initial finding of not competent to proceed.
2243
(13) In the event a minor has an unauthorized leave lasting more than 24 hours, the
2244
attainment period shall toll until the minor returns.
2245
(14)(a) Regardless of whether a minor consents to attainment, any statement made by
2246
the minor in the course of attainment, any testimony by the forensic evaluator based
2247
upon any statement made by the minor in the course of attainment, and any other
2248
fruits of a statement made by the minor in the course of attainment:
2249
(i) may not be admitted in evidence against the minor in a proceeding under this
2250
chapter, except the statement may be admitted on an issue respecting the mental
2251
condition on which the minor has introduced evidence; and
2252
(ii) may be admitted where relevant to a determination of the minor's competency.
2253
(b) Before evaluating the minor during the attainment period, a forensic evaluator shall
2254
specifically advise the minor, and the minor's parent or guardian if reasonably
2255
available, of the limits of confidentiality provided in Subsection (14)(a).
2256
Section 22. Effective Date.
2257
This bill takes effect on May 7, 2025.
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