62A-5-312 - Involuntary commitment -- Procedures -- Necessary findings-- Periodic review.
62A-5-312. Involuntary commitment -- Procedures -- Necessary findings
-- Periodic review.
(1) Any responsible person who has reason to know that an individual is in need ofcommitment, who has a belief that the individual has mental retardation, and who has personalknowledge of the conditions and circumstances supporting that belief, may commenceproceedings for involuntary commitment by filing a written petition with the district court, or ifthe subject of the petition is less than 18 years of age with the juvenile court, of the county inwhich the individual to be committed is physically located at the time the petition is filed. Theapplication shall be accompanied by:
(a) a certificate of a licensed physician or a designated mental retardation professional,stating that within a seven-day period immediately preceding the certification, the physician ordesignated mental retardation professional examined the individual and believes that theindividual is mentally retarded and is in need of involuntary commitment; or
(b) a written statement by the petitioner stating that the individual was requested butrefused to submit to an examination for mental retardation by a licensed physician or designatedmental retardation professional, and that the individual refuses to voluntarily go to the division ora mental retardation facility recommended by the division for treatment. That statement shall beunder oath and set forth the facts on which it is based.
(2) Before issuing a detention order, the court may require the petitioner to consult withpersonnel at the division or at a mental retardation facility and may direct a designated mentalretardation professional to interview the petitioner and the individual to be committed, todetermine the existing facts, and to report them to the court.
(3) The court may issue a detention order and may direct a peace officer to immediatelytake the individual to a mental retardation facility to be detained for purposes of an examinationif the court finds from the petition, from other statements under oath, or from reports ofphysicians or designated mental retardation professionals that there is a reasonable basis tobelieve that the individual to be committed:
(a) poses an immediate danger of physical injury to self or others;
(b) requires involuntary commitment pending examination and hearing;
(c) the individual was requested but refused to submit to an examination by a licensedphysician or designated mental retardation professional; or
(d) the individual refused to voluntarily go to the division or to a mental retardationfacility recommended by the division.
(4) (a) If the court issues a detention order based on an application that did not include acertification by a designated mental retardation professional or physician in accordance withSubsection (1)(a), the director or his designee shall within 24 hours after issuance of thedetention order, excluding Saturdays, Sundays, and legal holidays, examine the individual, reportthe results of the examination to the court and inform the court:
(i) whether the director or his designee believes that the individual is mentally retarded;and
(ii) whether appropriate treatment programs are available and will be used by theindividual without court proceedings.
(b) If the report of the director or his designee is based on an oral report of the examiner,the examiner shall immediately send the results of the examination in writing to the clerk of thecourt.
(5) Immediately after an individual is involuntarily committed under a detention order orunder Section 62A-5-311, the director or his designee shall inform the individual, orally and inwriting, of his right to communicate with an attorney. If an individual desires to communicatewith an attorney, the director or his designee shall take immediate steps to assist the individual incontacting and communicating with an attorney.
(6) (a) Immediately after commencement of proceedings for involuntary commitment,the court shall give notice of commencement of the proceedings to:
(i) the individual to be committed;
(ii) the applicant;
(iii) any legal guardian of the individual;
(iv) adult members of the individual's immediate family;
(v) legal counsel of the individual to be committed, if any;
(vi) the division; and
(vii) any other person to whom the individual requests, or the court designates, notice tobe given.
(b) If an individual cannot or refuses to disclose the identity of persons to be notified, theextent of notice shall be determined by the court.
(7) That notice shall:
(a) set forth the allegations of the petition and all supporting facts;
(b) be accompanied by a copy of any detention order issued under Subsection (3); and
(c) state that a hearing will be held within the time provided by law, and give the timeand place for that hearing.
(8) The court may transfer the case and the custody of the individual to be committed toany other district court within the state, if:
(a) there are no appropriate facilities for persons with mental retardation within thejudicial district; and
(b) the transfer will not be adverse to the interests of the individual.
(9) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, after anyorder or commitment under a detention order, the court shall appoint two designated mentalretardation professionals to examine the individual. If requested by the individual's counsel, thecourt shall appoint a reasonably available, qualified person designated by counsel to be one of theexamining designated mental retardation professionals. The examinations shall be conducted:
(i) separately;
(ii) at the home of the individual to be committed, a hospital, a facility for person's withmental retardation, or any other suitable place not likely to have a harmful effect on theindividual; and
(iii) within a reasonable period of time after appointment of the examiners by the court.
(b) The court shall set a time for a hearing to be held within 10 court days of theappointment of the examiners. However, the court may immediately terminate the proceedingsand dismiss the application if, prior to the hearing date, the examiners, the director, or hisdesignee informs the court that:
(i) the individual is not mentally retarded; or
(ii) treatment programs are available and will be used by the individual without courtproceedings.
(10) (a) Each individual has the right to be represented by counsel at the commitment
hearing and in all preliminary proceedings. If neither the individual nor others provide counsel, the court shall appoint counsel and allow sufficient time for counsel to consult with theindividual prior to any hearing.
(b) If the individual is indigent, the county in which the individual was physically locatedwhen taken into custody shall pay reasonable attorneys' fees as determined by the court.
(11) The division or a designated mental retardation professional in charge of theindividual's care shall provide all documented information on the individual to be committed andto the court at the time of the hearing. The individual's attorney shall have access to alldocumented information on the individual at the time of and prior to the hearing.
(12) (a) The court shall provide an opportunity to the individual, the petitioner, and allother persons to whom notice is required to be given to appear at the hearing, to testify, and topresent and cross-examine witnesses.
(b) The court may, in its discretion:
(i) receive the testimony of any other person;
(ii) allow a waiver of the right to appear only for good cause shown;
(iii) exclude from the hearing all persons not necessary to conduct the proceedings; and
(iv) upon motion of counsel, require the testimony of each examiner to be given out ofthe presence of any other examiner.
(c) The hearing shall be conducted in as informal a manner as may be consistent withorderly procedure, and in a physical setting that is not likely to have a harmful effect on theindividual. The Utah Rules of Evidence apply, and the hearing shall be a matter of court record. A verbatim record of the proceedings shall be maintained.
(13) The court may order commitment if, upon completion of the hearing andconsideration of the record, it finds by clear and convincing evidence that all of the followingconditions are met:
(a) the individual to be committed is mentally retarded;
(b) because of the individual's mental retardation one or more of the following conditionsexist:
(i) the individual poses an immediate danger of physical injury to self or others;
(ii) the individual lacks the capacity to provide the basic necessities of life, such as food,clothing, or shelter; or
(iii) the individual is in immediate need of habilitation, rehabilitation, care, or treatmentto minimize the effects of the condition which poses a threat of serious physical or psychologicalinjury to the individual, and the individual lacks the capacity to engage in a rationaldecision-making process concerning the need for habilitation, rehabilitation, care, or treatment,as evidenced by an inability to weigh the possible costs and benefits of the care or treatment andthe alternatives to it;
(c) there is no appropriate, less restrictive alternative reasonably available; and
(d) the division or the mental retardation facility recommended by the division in whichthe individual is to be committed can provide the individual with treatment, care, habilitation, orrehabilitation that is adequate and appropriate to the individual's condition and needs.
(14) In the absence of any of the required findings by the court, described in Subsection(13), the court shall dismiss the proceedings.
(15) (a) The order of commitment shall designate the period for which the individual willbe committed. An initial commitment may not exceed six months. Before the end of the initial
commitment period, the administrator of the facility for persons with mental retardation shallcommence a review hearing on behalf of the individual.
(b) At the conclusion of the review hearing, the court may issue an order of commitmentfor up to a one-year period.
(16) An individual committed under this part has the right to a rehearing, upon filing apetition with the court within 30 days after entry of the court's order. If the petition for rehearingalleges error or mistake in the court's findings, the court shall appoint one impartial licensedphysician and two impartial designated mental retardation professionals who have not previouslybeen involved in the case to examine the individual. The rehearing shall, in all other respects, beconducted in accordance with this part.
(17) (a) The court shall maintain a current list of all individuals under its orders ofcommitment. That list shall be reviewed in order to determine those patients who have beenunder an order of commitment for the designated period.
(b) At least two weeks prior to the expiration of the designated period of anycommitment order still in effect, the court that entered the original order shall inform the directorof the division of the impending expiration of the designated commitment period.
(c) The staff of the division shall immediately:
(i) reexamine the reasons upon which the order of commitment was based and report theresults of the examination to the court;
(ii) discharge the resident from involuntary commitment if the conditions justifyingcommitment no longer exist; and
(iii) immediately inform the court of any discharge.
(d) If the director of the division reports to the court that the conditions justifyingcommitment no longer exist, and the administrator of the mental retardation facility does notdischarge the individual at the end of the designated period, the court shall order the immediatedischarge of the individual, unless involuntary commitment proceedings are again commenced inaccordance with this section.
(e) If the director of the division, or his designee reports to the court that the conditionsdesignated in Subsection (13) still exist, the court may extend the commitment order for up toone year. At the end of any extension, the individual must be reexamined in accordance with thissection, or discharged.
(18) When a resident is discharged under this subsection, the division shall provide anyfurther support services available and required to meet the resident's needs.
Amended by Chapter 114, 2004 General Session