01-27 12:45 H.B. 338
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Commitment Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor:
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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 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 when there is a conflict in the opinions of forensic evaluators, if a party seeks an
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additional competency evaluation then that party is responsible for selecting the
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evaluator and paying the cost of the evaluator;
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▸ amends provisions and clarifies the process regarding the release from a secured setting
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of a defendant determined to be incompetent to proceed;
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▸ clarifies when the Department of Health and Human Services is required to provide an
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updated juvenile competency evaluation after an 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-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
H.B. 338 H.B. 338 01-27 12:45
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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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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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80-6-403, 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-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 2. 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, and except to the extent that the director or [
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his] the director's designee determines that it is necessary for the welfare of the patient to
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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 at reasonable times that
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do not interfere with clinical activities;[ and]
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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
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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
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informing involuntary patients of their right to release as provided in this chapter, and
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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
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in, or testifying in a grievance procedure or in an action for any remedy authorized
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pursuant to this section.
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(6) Notwithstanding Section 53B-17-303, an individual committed under this chapter has
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the right to determine the final disposition of that individual's body after death.
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Section 3. 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
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or leaves the state hospital without proper legal authority is guilty of a class A misdemeanor.
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Section 4. Section 26B-5-362 is amended to read:
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26B-5-362 . Commitment and care of criminally insane.
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Nothing contained in this part may be construed to alter or change the method presently
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employed for the commitment and care of the criminally insane as provided in [Title 77,
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Chapter 15, Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to
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Proceed.
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Section 5. Section 26B-5-371 is amended to read:
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26B-5-371 . Utah Forensic Mental Health Facility -- Design and operation --
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Security.
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(1) The forensic mental health facility is a secure treatment facility.
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(2)(a) The forensic mental health facility accommodates the following populations:
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(i) prison inmates displaying mental illness necessitating treatment in a secure mental
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health facility;
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(ii) criminally adjudicated persons found guilty with a mental illness or guilty with a
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mental condition at the time of the offense undergoing evaluation for a mental
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condition under Title 77, Chapter 16a, Commitment and Treatment of Individuals
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with a Mental Condition;
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(iii) criminally adjudicated persons undergoing evaluation for competency or found
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guilty with a mental condition or guilty with a mental condition at the time of the
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offense under Title 77, Chapter 16a, Commitment and Treatment of Individuals
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with a Mental Condition, who also have an intellectual disability;
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(iv) persons undergoing evaluation for competency or found by a court to be
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incompetent to proceed in accordance with [Title 77, Chapter 15, Inquiry into
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Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
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not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
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(v) persons who are civilly committed to the custody of a local mental health
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authority in accordance with this part, and who may not be properly supervised by
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the Utah State Hospital because of a lack of necessary security, as determined by
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the superintendent or the superintendent's designee; and
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(vi) persons ordered to commit themselves to the custody of the division for
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treatment at the Utah State Hospital as a condition of probation or stay of sentence
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pursuant to Title 77, Chapter 18, The Judgment.
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(b) Placement of an offender in the forensic mental health facility under any category
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described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the
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offender's status as established by the court at the time of adjudication.
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(c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
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department shall make rules providing for the allocation of beds to the categories
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described in Subsection (2)(a).
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(3) The department shall:
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(a) own and operate the forensic mental health facility;
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(b) provide and supervise administrative and clinical staff; and
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(c) provide security staff who are trained as psychiatric technicians.
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(4) Pursuant to Subsection 26B-5-303(3) the executive director shall designate individuals
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to perform security functions for the state hospital.
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Section 6. Section 77-15-5 is amended to read:
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CHAPTER 15. DEFENDANT'S COMPETENCY TO PROCEED
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77-15-5 . Order for hearing -- Stay of other proceedings -- Examinations of
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defendant -- Scope of examination and report.
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(1) A court in which criminal proceedings are pending shall stay all criminal proceedings, if:
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(a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
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(b) the court raises the issue of the defendant's competency under Section 77-15-4.
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(2) The court in which the petition described in Subsection (1)(a) is filed:
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(a) shall inform the court in which criminal proceedings are pending of the petition, if
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the petition is not filed in the court in which criminal proceedings are pending;
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(b) shall review the allegations of incompetency;
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(c) may hold a limited hearing solely for the purpose of determining the sufficiency of
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the petition, if the court finds the petition is not clearly sufficient on its face;
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(d) shall hold a hearing, if the petition is opposed by either party; and
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(e) may not order an examination of the defendant or order a hearing on the mental
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condition of the defendant unless the court finds that the allegations in the petition
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raise a bona fide doubt as to the defendant's competency to stand trial.
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(3)(a) If the court finds that there is a bona fide doubt as to the defendant's competency
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to stand trial, the court shall order the department to have one or two forensic
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evaluators complete a competency evaluation for the defendant in accordance with
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Subsection (3)(b) and provide a report to the court regarding the competency of the
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defendant to stand trial.
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(b) The court shall order the department to have the defendant evaluated by one forensic
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evaluator unless:
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(i) the defendant is charged with a capital felony; or
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(ii) the defendant is charged with a felony that is not a capital felony, and the court
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determines, based on the allegations in the petition, that good cause exists to order
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two competency evaluations.
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(c)(i) This section does not prohibit a party from seeking an additional forensic
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evaluator to conduct a competency evaluation of the defendant.
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(ii) If a party seeks an additional competency evaluation under this Subsection (3)(c),
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the party shall:
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(A) select the additional forensic evaluator; and
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(B) pay the costs of the additional forensic evaluator.
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(d) The stipulation by parties to a bona fide doubt as to the defendant's competency to
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stand trial alone may not take the place of a competency evaluation ordered under
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this Subsection (3).
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(e) In accordance with state licensing laws, the court may only order the department to
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provide an initial evaluation and progress toward competency evaluation for a
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defendant who is located within the state.
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(4)(a) If the petition or other information sufficiently raises concerns that the defendant
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may have an intellectual disability, at least one forensic evaluator who is experienced
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in assessments of intellectual disabilities shall conduct a competency evaluation.
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(b) The petitioner or other party, as directed by the court or requested by the department,
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shall provide to the forensic evaluator nonmedical information and materials relevant
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to a determination of the defendant's competency, including the charging document,
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arrest or incident reports pertaining to the charged offense, known criminal history
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information, and known prior mental health evaluations and treatments.
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(c) For purposes of a competency evaluation, a custodian of mental health records
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pertaining to the defendant, including the defendant's prior mental health evaluations
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or records relating to the defendant's substance use disorder, may provide the records
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to:
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(i) with the defendant's consent, a forensic evaluator or the department on the
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department's request; or
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(ii) a forensic evaluator by court order.
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(d) A court order under Subsection (4)(c) shall include a protective order that expires
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180 days after the day on which:
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(i) the defendant is found guilty;
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(ii) the defendant enters a guilty plea;
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(iii) the court sentences the defendant; or
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(iv) if the case is appealed, the day on which the final appeal is resolved.
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(e)(i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f),
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the court shall order the forensic evaluator to destroy all records subject to the
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protective order within the 180 day period described in Subsection (4)(d).
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(ii) A forensic evaluator is not required to destroy the records subject to the
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protective order if destroying the records is a violation of ethical standards to
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which the forensic evaluator is subject for occupational licensing.
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(f) The court may extend the protective order described in Subsection (4)(d) if:
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(i) the court finds the defendant incompetent to proceed without a substantial
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probability that the defendant will become competent in the foreseeable future;
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(ii) the prosecutor or another individual indicates to the court that the prosecutor or
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other individual will seek civil commitment of the defendant under Section
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77-15-6; and
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(iii) the court orders the records be maintained and used only for the purposes of
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examining the defendant in connection with the petition for civil commitment.
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(g) An order for a competency evaluation may not contain an order for any other inquiry
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into the mental state of the defendant that is not described in this Subsection (4).
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(5) Pending a competency evaluation, unless the court or the department directs otherwise,
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the defendant shall be retained in the same custody or status that the defendant was in at
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the time the examination was ordered.
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(6) In the conduct of a competency evaluation and in a report to the court, a forensic
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evaluator shall consider and address, in addition to any other factors determined to be
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relevant by the forensic evaluator:
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(a)[(i)] the impact of the defendant's mental illness or intellectual disability on the
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defendant's present ability to:
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[(A)] (i) rationally and factually understand the criminal proceedings against the
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defendant; and
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[(B)] (ii) consult with the defendant's legal counsel with a reasonable degree of
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rational understanding in order to assist in the defense;
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(b) in making the determinations described in Subsection (6)(a), the forensic evaluator
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shall consider, as applicable[:]
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[(i)] the defendant's present ability to:
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[(A)] (i) understand the charges or allegations against the defendant;
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[(B)] (ii) communicate facts, events, and states of mind;
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[(C)] (iii) understand the range of possible penalties associated with the charges or
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allegations against the defendant;
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[(D)] (iv) engage in reasoned choice of legal strategies and options;
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[(E)] (v) understand the adversarial nature of the proceedings against the defendant;
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[(F)] (vi) manifest behavior sufficient to allow the court to proceed; and
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[(G)] (vii) testify relevantly, if applicable; and
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(c) whether the defendant is exhibiting false or exaggerated physical or psychological
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symptoms relevant to the defendant's capacity to stand trial.
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(7) Upon a determination that the defendant is incompetent to proceed, the forensic
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evaluator shall indicate in the report to the court:
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(a) the factors that contribute to the defendant's incompetency, including the nature of
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the defendant's mental illness or intellectual disability, if any, and its relationship to
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the factors contributing to the defendant's incompetency;
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(b) whether there is a substantial probability that:
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(i) restoration treatment may bring the defendant to competency to stand trial in the
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foreseeable future; or
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(ii) the defendant cannot become competent to stand trial in the foreseeable future;
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(c) whether the defendant would benefit from restoration treatment; and
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(d) if the forensic evaluator makes the determination under Subsection (7)(b)(i) or (7)(c),
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an explanation of the reason for the determination and a summary of the treatment
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provided to the defendant in the past.
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(8)(a) A forensic evaluator shall provide an initial report to the court and the prosecuting
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and defense attorneys within 30 days of the receipt of the court's order. The report
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shall inform the court of the examiner's opinion concerning the competency of the
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defendant to stand trial.
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(b)(i) If the forensic evaluator is unable to complete the report in the time specified in
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Subsection (8)(a), the forensic evaluator shall give written notice to the court.
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(ii) A forensic evaluator who provides the notice described in Subsection (8)(b)(i)
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shall receive a 15-day extension, giving the forensic evaluator a total of 45 days
408
after the day on which the forensic evaluator received the court's order to conduct
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a competency evaluation and file a report.
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(iii) The court may further extend the deadline for completion of the evaluation and
411
report if the court determines that there is good cause for the extension.
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(iv) Upon receipt of an extension described in Subsection (8)(b)(iii), the forensic
413
evaluator shall file the report as soon as reasonably possible.
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(9) Any written report submitted by a forensic evaluator shall:
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(a) identify the case ordered for evaluation by the case number;
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(b) describe the procedures, techniques, and tests used in the examination and the
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purpose or purposes for each, the time spent by the forensic evaluator with the
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defendant for purposes of the examination, and the compensation to be paid to the
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evaluator for the report;
420
(c) state the forensic evaluator's clinical observations, findings, and opinions on each
421
factor described in Subsection (6); and
422
(d) identify the sources of information used by the forensic evaluator and present the
423
basis for the forensic evaluator's clinical findings and opinions.
424
(10)(a) Any statement made by the defendant in the course of any competency
425
examination, whether the examination is with or without the consent of the
426
defendant, any testimony by a forensic evaluator based upon the statement, and any
427
other fruits of the statement may not be admitted in evidence against the defendant in
428
any criminal proceeding except on an issue respecting mental condition on which the
429
defendant has introduced evidence, unless the evidence is relevant to a determination
430
of the defendant's competency.
431
(b) Before examining the defendant, the forensic evaluator shall specifically advise the
432
defendant of the limits of confidentiality as provided under Subsection (10)(a).
433
(11)(a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
434
competency hearing. The hearing shall be held not less than five and not more than
435
15 days after the day on which the court received the forensic evaluators' reports,
436
unless for good cause the court sets a later date.
437
(b) Any person directed by the department to conduct the competency evaluation may be
438
subpoenaed to testify at the hearing.
- 13 - H.B. 338 01-27 12:45
439
(c) The court may call any forensic evaluator to testify at the hearing who is not called
440
by the parties. [ ]If the court calls a forensic evaluator, counsel for the parties may
441
cross-examine the forensic evaluator.
442
(d)(i) If the forensic evaluators are in conflict as to the competency of the defendant,
443
all forensic evaluators should be called to testify at the hearing if reasonably
444
available.
445
(ii) A conflict in the opinions of the forensic evaluators does not require the
446
appointment of an additional forensic evaluator unless the court finds good cause
447
for the appointment.
448
(iii) If a party seeks an additional competency evaluation under this Subsection (11),
449
that party shall:
450
(A) select the additional forensic evaluator; and
451
(B) pay the costs of the additional forensic evaluator.
452
(12)(a)(i) A defendant shall be presumed competent to stand trial unless the court, by
453
a preponderance of the evidence, finds the defendant incompetent to proceed.
454
(ii) The burden of proof is upon the proponent of incompetency at the hearing.
455
(b) An adjudication of incompetent to proceed does not operate as an adjudication of
456
incompetency to give informed consent for medical treatment or for any other
457
purpose, unless specifically set forth in the court order.
458
(13) In determining the defendant's competency to stand trial, the court shall consider the
459
totality of the circumstances, including:
460
(a) the petition;
461
(b) the defendant's criminal and arrest history;
462
(c) prior mental health evaluations and treatments provided to the court by the defendant;
463
(d) subject to Subsection (15), whether the defendant was found incompetent to proceed
464
in a criminal action unrelated to the charged offense for which the petition is filed;
465
(e) the testimony of lay witnesses, if any;
466
(f) the forensic evaluator's testimony and report;
467
(g) the materials on which the forensic evaluator's report is based; and
468
(h) any other relevant evidence or consideration bearing on the competency of the
469
defendant.
470
(14) If the court finds the defendant incompetent to proceed:
471
(a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
472
(i) include findings addressing each of the factors in Subsection (6)(a);
- 14 - 01-27 12:45 H.B. 338
473
(ii) include a transportation order, if necessary;
474
(iii) be accompanied by the forensic evaluators' reports, any psychiatric,
475
psychological, or social work reports submitted to the court relative to the mental
476
condition of the defendant, and any other documents made available to the court
477
by either the defense or the prosecution, pertaining to the defendant's current or
478
past mental condition; and
479
(iv) be sent by the court to the department; and
480
(b) the prosecuting attorney shall provide to the department:
481
(i) the charging document and probable cause statement, if any;
482
(ii) arrest or incident reports prepared by law enforcement and pertaining to the
483
charged offense; and
484
(iii) additional supporting documents.
485
(15) The court may not find the defendant incompetent to proceed based solely on a court
486
having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6
487
in an unrelated criminal action if the court in the unrelated criminal action ordered the
488
release more than one year before the day on which the petition described in Subsection
489
(13)(a) is filed.
490
(16) The court may make any reasonable order to ensure compliance with this section.
491
(17) Failure to comply with this section does not result in the dismissal of criminal charges.
492
Section 7. Section 77-15-6 is amended to read:
493
77-15-6 . Commitment on finding of incompetency to stand trial -- Subsequent
494
hearings -- Notice to prosecuting attorneys.
495
(1)(a) Except as provided in Subsection (5), if after a hearing a court finds a defendant to
496
be incompetent to proceed, the court shall order the defendant committed to the
497
department for restoration treatment.
498
(b)(i) Except as provided in Subsection (1)(b)(ii), the court may recommend but may
499
not order placement of a defendant who is found incompetent to proceed.
500
(ii) The court may order that the defendant be placed in a secure setting rather than a
501
nonsecure setting.
502
(c) Following restoration screening, the department's designee shall designate and
503
inform the court of the specific placement and restoration treatment program for the
504
defendant.
505
(d) Restoration treatment shall be of sufficient scope and duration to:
506
(i) restore the defendant to competency; or
- 15 - H.B. 338 01-27 12:45
507
(ii) determine whether the defendant can be restored to competency in the foreseeable
508
future.
509
(e) A defendant who a court determines is incompetent to proceed may not be held for
510
restoration treatment longer than:
511
(i) the time reasonably necessary to determine that the defendant cannot become
512
competent to stand trial in the foreseeable future; and
513
(ii) the maximum period of incarceration that the defendant could receive if the
514
defendant were convicted of the most severe offense of the offenses charged.
515
(2)(a) A defendant who is receiving restoration treatment shall receive a progress toward
516
competency evaluation, by:
517
(i) a forensic evaluator, designated by the department; and
518
(ii) an additional forensic evaluator, if requested by a party and paid for by the
519
requesting party.
520
(b) A forensic evaluator shall complete a progress toward competency evaluation and
521
submit a report within 90 days after the day on which the forensic evaluator receives
522
the commitment order from the department.
523
(c) The report shall:
524
(i) assess whether the defendant is exhibiting false or exaggerated physical or
525
psychological symptoms;
526
(ii) describe any diagnostic instruments, methods, and observations used by the
527
evaluator to make the determination;
528
(iii) describe the defendant's current mental illness or intellectual disability, if any;
529
(iv) state the forensic evaluator's opinion as to the effect of any false or exaggerated
530
symptoms on the defendant's competency to stand trial;
531
(v) assess the facility's or program's capacity to provide appropriate restoration
532
treatment for the defendant;
533
(vi) assess the nature of restoration treatment provided to the defendant;
534
(vii) assess what progress the defendant has made toward competency restoration,
535
with respect to the factors identified by the court in its initial order;
536
(viii) assess whether the defendant can reasonably be restored to competency in the
537
foreseeable future given the restoration treatment currently being provided and the
538
facility's or program's capacity to provide appropriate restoration treatment for the
539
defendant;
540
(ix) assess the likelihood of restoration to competency, the amount of time estimated
- 16 - 01-27 12:45 H.B. 338
541
to achieve competency, or the amount of time estimated to determine whether
542
restoration to competency may be achieved; and
543
(x) include a statement by the facility's treating physician regarding:
544
(A) whether the defendant is taking any antipsychotic medication as prescribed;
545
(B) whether ongoing administration of antipsychotic medication is necessary to
546
maintain the defendant's competency to stand trial;
547
(C) whether antipsychotic medication is substantially likely to maintain the
548
defendant's competency to stand trial;
549
(D) whether antipsychotic medication is substantially unlikely to produce side
550
effects which would significantly interfere with the defendant's ability to assist
551
in the defendant's defense;
552
(E) that no less intrusive means are available, and whether any of those means
553
have been attempted to render the defendant competent; and
554
(F) whether antipsychotic medication is medically appropriate and in the
555
defendant's best medical interest in light of the defendant's medical condition.
556
(3)(a) The court on its own motion or upon motion by either party or the department
557
may appoint an additional forensic evaluator to conduct a progress toward
558
competency evaluation.
559
(b) If the court appoints an additional forensic evaluator upon motion of a party, that
560
party shall pay the costs of the additional forensic evaluator.
561
(4)(a) Within 15 days after the day on which the court receives the forensic evaluator's
562
report of the progress toward competency evaluation, the court shall hold a hearing to
563
review the defendant's competency.
564
(b) At the hearing, the burden of proving that the defendant is competent to stand trial is
565
on the proponent of competency.
566
(c) Following the hearing, the court shall determine by a preponderance of evidence
567
whether the defendant:
568
(i) is competent to stand trial;
569
(ii) is competent, but requires the ongoing administration of antipsychotic medication
570
in order to maintain the defendant's competency to stand trial;
571
(iii) is incompetent to proceed, with a substantial probability that the defendant may
572
become competent in the foreseeable future; or
573
(iv) is incompetent to proceed, without a substantial probability that the defendant
574
may become competent in the foreseeable future.
- 17 - H.B. 338 01-27 12:45
575
(5)(a) If at any time the court determines that the defendant is competent to stand trial,
576
the court shall:
577
(i) proceed with the trial or other procedures as may be necessary to adjudicate the
578
charges;
579
(ii) order that the defendant be returned to the placement and status that the defendant
580
was in at the time when the petition for the adjudication of competency was filed
581
or raised by the court, unless the court determines that placement of the defendant
582
in a less restrictive environment is more appropriate;
583
(iii) order the ongoing administration of antipsychotic medication to the defendant for
584
the purpose of maintaining the defendant's competency to stand trial, if the court
585
finds that the administration of antipsychotic medication is necessary to maintain
586
the defendant's competency to stand trial under Subsection (4)(c)(ii); and
587
(iv) require the agency, jail, or prison with custody over the defendant to report to the
588
court any noncompliance with the court's orders under this Subsection (5) within
589
48 hours of the noncompliance.
590
(b) If the court determines that the defendant is incompetent to proceed with a
591
substantial probability that the defendant may become competent in the foreseeable
592
future, the court may order that the defendant remain committed to the department or
593
the department's designee for the purpose of restoration treatment.
594
(c)(i) If the court determines that the defendant is incompetent to proceed without a
595
substantial probability that the defendant may become competent in the
596
foreseeable future, the court shall order the defendant released from commitment
597
to the department, unless the prosecutor or another individual informs the court
598
that civil commitment proceedings pursuant to Title 26B, Chapter 5, Health Care -
599
Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of
600
Services for People with Disabilities, will be initiated.
601
(ii) The commitment proceedings must be initiated by a petition filed within seven
602
days after the day on which the court makes the determination described in
603
Subsection (4)(c)(iv), unless the court finds that there is good cause to delay the
604
initiation of the civil commitment proceedings.
605
(iii) The court may order the defendant to remain committed to the department until
606
the civil commitment proceedings conclude.
607
(iv) If the defendant is civilly committed and admitted to a secure setting, the
608
department shall provide notice to the court that adjudicated the defendant
- 18 - 01-27 12:45 H.B. 338
609
incompetent to proceed and to the prosecution agency that prosecuted the case at
610
least [60] 15 days before any proposed release of the committed individual from
611
the secure setting.
612
(v) If the prosecution agency that prosecuted the case intends to refile charges against
613
the committed individual:
614
(A) the prosecution agency shall provide written notice of that intent to the
615
department within 15 days after the department provides the notice described
616
in Subsection (5)(c)(iv); and
617
(B) the department shall postpone release of the committed individual for at least
618
30 days after the day on which the department receives the written notice of
619
intent from the prosecution agency.
620
(vi) If the prosecution agency that prosecuted the case refiles charges against the
621
committed individual and the individual's competency is raised, the department
622
shall postpone release of the individual until the competency proceedings
623
conclude.
624
(6)(a) At any time following the court's order under Subsection (5)(a)(iii), the defendant,
625
the prosecuting attorney, the department, the treating physician, or the agency, jail, or
626
prison with custody over the defendant, may notify the court of the need to review
627
the medication order under Subsection (5)(a)(iii) for continued appropriateness and
628
feasibility.
629
(b) The court shall set the matter for a hearing if the notification under Subsection (6)(a)
630
establishes good cause to review the matter.
631
(7) If a court, under Subsection (5)(b), extends a defendant's commitment, the court shall
632
schedule a competency review hearing for the earlier of:
633
(a) the department's best estimate of when the defendant may be restored to competency;
634
or
635
(b) three months after the day on which the court determined under Subsection (5)(b) to
636
extend the defendant's commitment.
637
(8) Unless the defendant is charged with a crime listed in Subsection (9), if a defendant is
638
incompetent to proceed by the day of the competency review hearing that follows the
639
extension of a defendant's commitment, the court shall:
640
(a) order the defendant be:
641
(i) released or temporarily detained pending civil commitment proceedings as
642
described in Subsection (5)(c); and
- 19 - H.B. 338 01-27 12:45
643
(ii) terminate the defendant's commitment to the department for restoration treatment;
644
or
645
(b) if the forensic evaluator reports to the court that there is a substantial probability that
646
restoration treatment will bring the defendant to competency to stand trial in the
647
foreseeable future, extend the defendant's commitment for restoration treatment up to
648
45 additional days.
649
(9) If the defendant is charged with aggravated murder, murder, attempted murder,
650
manslaughter, or a first degree felony and the court determines that the defendant is
651
making reasonable progress towards restoration of competency at the time of the hearing
652
held pursuant to Subsection (7), the court may extend the commitment for a period not
653
to exceed nine months for the purpose of restoration treatment, with a mandatory review
654
hearing at the end of the nine-month period.
655
(10) Unless the defendant is charged with aggravated murder or murder, if, at the
656
nine-month review hearing described in Subsection (9), the court determines that the
657
defendant is incompetent to proceed, the court shall:
658
(a)(i) order the defendant be released or temporarily detained pending civil
659
commitment proceedings as provided in Subsection (5)(c); and
660
(ii) terminate the defendant's commitment to the department for restoration treatment;
661
or
662
(b) if the forensic evaluator reports to the court that there is a substantial probability that
663
restoration treatment will bring the defendant to competency to stand trial in the
664
foreseeable future, extend the defendant's commitment for restoration treatment for
665
up to 135 additional days.
666
(11) If the defendant is charged with aggravated murder or murder and the court determines
667
that the defendant is making reasonable progress towards restoration of competency at
668
the time of the nine-month review hearing described in Subsection (9), the court may
669
extend the commitment for a period not to exceed 24 months for the purpose of
670
restoration treatment.
671
(12) If the court extends the defendant's commitment term under Subsection (11), the court
672
shall hold a hearing no less frequently than at 12-month intervals following the
673
extension for the purpose of determining the defendant's competency status.
674
(13) If, at the end of the 24-month commitment period described in Subsection (11), the
675
court determines that the defendant is incompetent to proceed, the court shall:
676
(a)(i) order the defendant be released or temporarily detained pending civil
- 20 - 01-27 12:45 H.B. 338
677
commitment proceedings as provided in Subsection (5)(c); and
678
(ii) terminate the defendant's commitment to the department for restoration treatment;
679
or
680
(b) if the forensic evaluator reports to the court that there is a substantial probability that
681
restoration treatment will bring the defendant to competency to stand trial in the
682
foreseeable future, extend the defendant's commitment for restoration treatment for
683
up to 12 additional months.
684
(14)(a) Neither release from a pretrial incompetency commitment under the provisions
685
of this section nor civil commitment requires dismissal of criminal charges.
686
(b) The court may retain jurisdiction over the criminal case and may order periodic
687
reviews.
688
(15) A defendant who is civilly committed pursuant to Title 26B, Chapter 5, Health Care -
689
Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of Services
690
for People with Disabilities, may still be adjudicated competent to stand trial under this
691
chapter.
692
(16)(a) The remedy for a violation of the time periods specified in this section, other
693
than those specified in Subsection (5)(c), (8), (10), or (13), shall be a motion to
694
compel the hearing, or mandamus, but not release from detention or dismissal of the
695
criminal charges.
696
(b) The remedy for a violation of the time periods specified in Subsection (5)(c), (8), (9),
697
or (13), or is not dismissal of the criminal charges.
698
(17) In cases in which the treatment of the defendant is precluded by court order for a
699
period of time, that time period may not be considered in computing time limitations
700
under this section.
701
(18)(a) If, at any time, the defendant becomes competent to stand trial while the
702
defendant is committed to the department, the clinical director of the Utah State
703
Hospital, the department, or the department's designee shall certify that fact to the
704
court.
705
(b) The court shall conduct a competency review hearing:
706
(i) within 15 working days after the day on which the court receives the certification
707
described in Subsection (18)(a); or
708
(ii) within 30 working days after the day on which the court receives the certification
709
described in Subsection (18)(a), if the court determines that more than 15 working
710
days are necessary for good cause related to the defendant's competency.
- 21 - H.B. 338 01-27 12:45
711
(19) The court may order a hearing at any time on the court's own motion or upon
712
recommendations of the clinical director of the Utah State Hospital or other facility or
713
the department.
714
(20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
715
attorney and all counsel of record.
716
Section 8. Section 77-19-203 is amended to read:
717
77-19-203 . Petition for inquiry as to competency to be executed -- Filing --
718
Contents -- Successive petitions.
719
(1) If an inmate who has been sentenced to death is or becomes incompetent to be executed,
720
a petition under Subsection (2) may be filed in the district court of the county where the
721
inmate is confined.
722
(2) The petition shall:
723
(a) contain a certificate stating that it is filed in good faith and on reasonable grounds to
724
believe the inmate is incompetent to be executed; and
725
(b) contain a specific recital of the facts, observations, and conversations with the inmate
726
that form the basis for the petition.
727
(3) The petition may be based upon knowledge or information and belief and may be filed
728
by the inmate alleged to be incompetent, legal counsel for the inmate, or by an attorney
729
representing the state.
730
(4) Before ruling on a petition filed by an inmate or his counsel alleging that the inmate is
731
incompetent to be executed, the court shall give the state and the Department of
732
Corrections an opportunity to respond to the allegations of incompetency.
733
(5) If a petition is filed after an inmate has previously been found competent under either
734
this chapter or under [Title 77, Chapter 15, Inquiry into Sanity of Defendant] Title 77,
735
Chapter 15, Defendant's Competency to Proceed, no further hearing on competency may
736
be granted unless the successive petition:
737
(a) alleges with specificity a substantial change of circumstances subsequent to the
738
previous determination of competency; and
739
(b) is sufficient to raise a significant question about the inmate's competency to be
740
executed.
741
Section 9. Section 77-29-3 is amended to read:
742
77-29-3 . Chapter inapplicable to incompetent persons.
743
The provisions of this chapter shall not apply to any person while adjudged to be
744
incompetent to proceed under [Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
- 22 - 01-27 12:45 H.B. 338
745
Defendant's Competency to Proceed.
746
Section 10. Section 80-6-403 is amended to read:
747
80-6-403 . Disposition on finding of not competent to proceed -- Subsequent
748
hearings -- Notice to prosecuting attorneys.
749
(1) If the juvenile court determines that the minor is not competent to proceed, and there is
750
a substantial likelihood that the minor may attain competency in the foreseeable future,
751
the juvenile court shall notify the department of the finding and allow the department 30
752
days to develop an attainment plan for the minor.
753
(2) The attainment plan shall include:
754
(a) any services or treatment the minor has been or is currently receiving that are
755
necessary to attain competency;
756
(b) any additional services or treatment the minor may require to attain competency;
757
(c) an assessment of the parent, custodian, or guardian's ability to access or provide any
758
recommended treatment or services;
759
(d) any special conditions or supervision that may be necessary for the safety of the
760
minor or others during the attainment period; and
761
(e) the likelihood that the minor will attain competency and the amount of time likely
762
required for the minor to attain competency.
763
(3) The department shall provide the attainment plan to the juvenile court, the prosecuting
764
attorney, the defense attorney, and the attorney guardian ad litem at least three days
765
before the competency disposition hearing.
766
(4)(a) During the attainment period, the minor shall remain in the least restrictive
767
appropriate setting.
768
(b) A finding of not competent to proceed does not grant authority for a juvenile court to
769
place a minor in the custody of a division of the department, or create eligibility for
770
services from the Division of Services for People With Disabilities.
771
(c) If the juvenile court orders the minor to be held in detention during the attainment
772
period, the juvenile court shall make the following findings on the record:
773
(i) the placement is the least restrictive appropriate setting;
774
(ii) the placement is in the best interest of the minor;
775
(iii) the minor will have access to the services and treatment required by the
776
attainment plan in the placement; and
777
(iv) the placement is necessary for the safety of the minor or others.
778
(d) A juvenile court shall terminate an order of detention related to the pending
- 23 - H.B. 338 01-27 12:45
779
proceeding for a minor who is not competent to proceed in that matter if:
780
(i) the most severe allegation against the minor if committed by an adult is a class B
781
misdemeanor;
782
(ii) more than 60 days have passed after the day on which the juvenile court
783
adjudicated the minor not competent to proceed; and
784
(iii) the minor has not attained competency.
785
(5)(a) At any time that the minor becomes competent to proceed during the attainment
786
period, the department shall notify the juvenile court, the prosecuting attorney, the
787
defense attorney, and the attorney guardian ad litem.
788
(b) The juvenile court shall hold a hearing with 15 business days of notice from the
789
department described in Subsection (5)(a).
790
(6)(a) If at any time during the attainment period the juvenile court finds that there is not
791
a substantial probability that the minor will attain competency in the foreseeable
792
future, the juvenile court shall terminate the competency proceeding, dismiss the
793
petition or information without prejudice, and release the minor from any custody
794
order related to the pending proceeding, unless the prosecuting attorney or any other
795
individual informs the juvenile court that commitment proceedings will be initiated in
796
accordance with:
797
(i) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
798
People with an Intellectual Disability;
799
(ii) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
800
Hospital and Other Mental Health Facilities; or
801
(iii) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
802
Under Age 18.
803
(b) The prosecuting attorney shall initiate the proceedings described in Subsection (6)(a)
804
within seven days after the juvenile court's order, unless the juvenile court enlarges
805
the time for good cause shown.
806
(7) During the attainment period, the juvenile court may order a hearing or rehearing at
807
anytime on the juvenile court's own motion or upon recommendation of any interested
808
party or the department.
809
(8)(a) Within three months of the juvenile court's approval of the attainment plan, the
810
department shall provide a report on the minor's progress towards competence.
811
(b) The report described in Subsection (8)(a) shall address the minor's:
812
(i) compliance with the attainment plan;
- 24 - 01-27 12:45 H.B. 338
813
(ii) progress towards competency based on the issues identified in the original
814
competency evaluation; and
815
(iii) current mental illness, intellectual disability or related condition, or
816
developmental immaturity, and need for treatment, if any, and whether there is
817
substantial likelihood of the minor attaining competency within six months.
818
(9)(a) Within 30 days of receipt of the report, the juvenile court shall hold a hearing to
819
determine the minor's current status.
820
(b) At the hearing, the burden of proving the minor is competent is on the proponent of
821
competency.
822
(c) The juvenile court shall determine by a preponderance of the evidence whether the
823
minor is competent to proceed.
824
(10) If the minor has not attained competency after the initial three month attainment period
825
but is showing reasonable progress towards attainment of competency, the juvenile court
826
may extend the attainment period up to an additional three months.
827
(11) The department shall provide an updated juvenile competency evaluation at the
828
conclusion of the [six month ]attainment period to advise the juvenile court on the
829
minor's current competency status.
830
(12) If the minor does not attain competency within six months after the juvenile court
831
initially finds the minor not competent to proceed, the court shall terminate the
832
competency proceedings and dismiss the petition or information filed without prejudice,
833
unless good cause is shown that there is a substantial likelihood the minor will attain
834
competency within one year from the initial finding of not competent to proceed.
835
(13) In the event a minor has an unauthorized leave lasting more than 24 hours, the
836
attainment period shall toll until the minor returns.
837
(14)(a) Regardless of whether a minor consents to attainment, any statement made by
838
the minor in the course of attainment, any testimony by the forensic evaluator based
839
upon any statement made by the minor in the course of attainment, and any other
840
fruits of a statement made by the minor in the course of attainment:
841
(i) may not be admitted in evidence against the minor in a proceeding under this
842
chapter, except the statement may be admitted on an issue respecting the mental
843
condition on which the minor has introduced evidence; and
844
(ii) may be admitted where relevant to a determination of the minor's competency.
845
(b) Before evaluating the minor during the attainment period, a forensic evaluator shall
846
specifically advise the minor, and the minor's parent or guardian if reasonably
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available, of the limits of confidentiality provided in Subsection (14)(a).
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Section 11. Effective Date.
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This bill takes effect on May 7, 2025.
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