26B-5-403. Residential and inpatient settings — Commitment proceeding — Child in physical custody of local mental health authority.
(1)
A child may receive services from a local mental health authority in an inpatient or residential setting only after a commitment proceeding, for the purpose of transferring physical custody, has been conducted in accordance with the requirements of this section.
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Terms Used In Utah Code 26B-5-403
Administrator: includes "executor" when the subject matter justifies the use. See Utah Code 68-3-12.5
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Legal custody: means :
(a)
the right to determine where and with whom the child shall live;
(b)
the right to participate in all treatment decisions and to consent or withhold consent for treatment in which a constitutionally protected liberty or privacy interest may be affected, including antipsychotic medication, electroshock therapy, and psychosurgery; and
(c)
the right to authorize surgery or other extraordinary medical care. See Utah Code 26B-5-401
Local mental health authority: means a county legislative body. See Utah Code 26B-5-101
Office: means the Office of Substance Use and Mental Health created in Section 26B-5-102. See Utah Code 26B-5-101
placement of a child in any residential or inpatient setting;
(b)
the right to physical custody of a child;
(c)
the right and duty to protect the child; and
(d)
the duty to provide, or insure that the child is provided with, adequate food, clothing, shelter, and ordinary medical care. See Utah Code 26B-5-401
Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
Residential: means any out-of-home placement made by a local mental health authority, but does not include out-of-home respite care. See Utah Code 26B-5-401
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
Testimony: Evidence presented orally by witnesses during trials or before grand juries.
That commitment proceeding shall be initiated by a petition for commitment, and shall be a careful, diagnostic inquiry, conducted by a neutral and detached fact finder, pursuant to the procedures and requirements of this section. If the findings described in Subsection (4) exist, the proceeding shall result in the transfer of physical custody to the appropriate local mental health authority, and the child may be placed in an inpatient or residential setting.
(3)
The neutral and detached fact finder who conducts the inquiry:
(a)
shall be a designated examiner; and
(b)
may not profit, financially or otherwise, from the commitment or physical placement of the child in that setting.
(4)
Upon determination by a fact finder that the following circumstances clearly exist, the fact finder may order that the child be committed to the physical custody of a local mental health authority:
(a)
the child has a mental illness;
(b)
the child demonstrates a reasonable fear of the risk of substantial danger to self or others;
(c)
the child will benefit from care and treatment by the local mental health authority; and
(d)
there is no appropriate less-restrictive alternative.
(5)
(a)
The commitment proceeding before the neutral and detached fact finder shall be conducted in as informal manner as possible and in a physical setting that is not likely to have a harmful effect on the child.
(b)
The child, the child’s parent or legal guardian, the petitioner, and a representative of the appropriate local mental health authority:
(i)
shall receive informal notice of the date and time of the proceeding; and
(ii)
may appear and address the petition for commitment.
(c)
The neutral and detached fact finder may, in the fact finder’s discretion, receive the testimony of any other person.
(d)
The fact finder may allow a child to waive the child’s right to be present at the commitment proceeding, for good cause shown. If that right is waived, the purpose of the waiver shall be made a matter of record at the proceeding.
(e)
At the time of the commitment proceeding, the appropriate local mental health authority, its designee, or the psychiatrist who has been in charge of the child’s care prior to the commitment proceeding, shall provide the neutral and detached fact finder with the following information, as it relates to the period of current admission:
(i)
the petition for commitment;
(ii)
the admission notes;
(iii)
the child’s diagnosis;
(iv)
physicians’ orders;
(v)
progress notes;
(vi)
nursing notes; and
(vii)
medication records.
(f)
The information described in Subsection (5)(e) shall also be provided to the child’s parent or legal guardian upon written request.
(g)
(i)
The neutral and detached fact finder’s decision of commitment shall state the duration of the commitment. Any commitment to the physical custody of a local mental health authority may not exceed 180 days. Prior to expiration of the commitment, and if further commitment is sought, a hearing shall be conducted in the same manner as the initial commitment proceeding, in accordance with the requirements of this section.
(ii)
At the conclusion of the hearing and subsequently in writing, when a decision for commitment is made, the neutral and detached fact finder shall inform the child and the child’s parent or legal guardian of that decision and of the reasons for ordering commitment.
(iii)
The neutral and detached fact finder shall state in writing the basis of the decision, with specific reference to each of the criteria described in Subsection (4), as a matter of record.
(6)
A child may be temporarily committed for a maximum of 72 hours, excluding Saturdays, Sundays, and legal holidays, to the physical custody of a local mental health authority in accordance with the procedures described in Section 26B-5-331 and upon satisfaction of the risk factors described in Subsection (4). A child who is temporarily committed shall be released at the expiration of the 72 hours unless the procedures and findings required by this section for the commitment of a child are satisfied.
(7)
A local mental health authority shall have physical custody of each child committed to it under this section. The parent or legal guardian of a child committed to the physical custody of a local mental health authority under this section, retains legal custody of the child, unless legal custody has been otherwise modified by a court of competent jurisdiction. In cases when the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services has legal custody of a child, that division shall retain legal custody for purposes of this part.
(8)
The cost of caring for and maintaining a child in the physical custody of a local mental health authority shall be assessed to and paid by the child’s parents, according to their ability to pay. For purposes of this section, the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services shall be financially responsible, in addition to the child’s parents, if the child is in the legal custody of either of those divisions at the time the child is committed to the physical custody of a local mental health authority under this section, unless Medicaid regulation or contract provisions specify otherwise. The Office of Recovery Services shall assist those divisions in collecting the costs assessed pursuant to this section.
(9)
Whenever application is made for commitment of a minor to a local mental health authority under any provision of this section by a person other than the child’s parent or guardian, the local mental health authority or its designee shall notify the child’s parent or guardian. The parents shall be provided sufficient time to prepare and appear at any scheduled proceeding.
(10)
(a)
Each child committed pursuant to this section is entitled to an appeal within 30 days after any order for commitment. The appeal may be brought on the child’s own petition or on petition of the child’s parent or legal guardian, to the juvenile court in the district where the child resides or is currently physically located. With regard to a child in the custody of the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services, the attorney general’s office shall handle the appeal, otherwise the appropriate county attorney’s office is responsible for appeals brought pursuant to this Subsection (10)(a).
(b)
Upon receipt of the petition for appeal, the court shall appoint a designated examiner previously unrelated to the case, to conduct an examination of the child in accordance with the criteria described in Subsection (4), and file a written report with the court. The court shall then conduct an appeal hearing to determine whether the findings described in Subsection (4) exist by clear and convincing evidence.
(c)
Prior to the time of the appeal hearing, the appropriate local mental health authority, its designee, or the mental health professional who has been in charge of the child’s care prior to commitment, shall provide the court and the designated examiner for the appeal hearing with the following information, as it relates to the period of current admission:
(i)
the original petition for commitment;
(ii)
admission notes;
(iii)
diagnosis;
(iv)
physicians’ orders;
(v)
progress notes;
(vi)
nursing notes; and
(vii)
medication records.
(d)
Both the neutral and detached fact finder and the designated examiner appointed for the appeal hearing shall be provided with an opportunity to review the most current information described in Subsection (10)(c) prior to the appeal hearing.
(e)
The child, the child’s parent or legal guardian, the person who submitted the original petition for commitment, and a representative of the appropriate local mental health authority shall be notified by the court of the date and time of the appeal hearing. Those persons shall be afforded an opportunity to appear at the hearing. In reaching its decision, the court shall review the record and findings of the neutral and detached fact finder, the report of the designated examiner appointed pursuant to Subsection (10)(b), and may, in its discretion, allow or require the testimony of the neutral and detached fact finder, the designated examiner, the child, the child’s parent or legal guardian, the person who brought the initial petition for commitment, or any other person whose testimony the court deems relevant. The court may allow the child to waive the right to appear at the appeal hearing, for good cause shown. If that waiver is granted, the purpose shall be made a part of the court’s record.
(11)
Each local mental health authority has an affirmative duty to conduct periodic evaluations of the mental health and treatment progress of every child committed to its physical custody under this section, and to release any child who has sufficiently improved so that the criteria justifying commitment no longer exist.
(12)
(a)
A local mental health authority or its designee, in conjunction with the child’s current treating mental health professional may release an improved child to a less restrictive environment, as they determine appropriate. Whenever the local mental health authority or its designee, and the child’s current treating mental health professional, determine that the conditions justifying commitment no longer exist, the child shall be discharged and released to the child’s parent or legal guardian. With regard to a child who is in the physical custody of the State Hospital, the treating psychiatrist or clinical director of the State Hospital shall be the child’s current treating mental health professional.
(b)
A local mental health authority or its designee, in conjunction with the child’s current treating mental health professional, is authorized to issue a written order for the immediate placement of a child not previously released from an order of commitment into a more restrictive environment, if the local authority or its designee and the child’s current treating mental health professional has reason to believe that the less restrictive environment in which the child has been placed is exacerbating the child’s mental illness, or increasing the risk of harm to self or others.
(c)
The written order described in Subsection (12)(b) shall include the reasons for placement in a more restrictive environment and shall authorize any peace officer to take the child into physical custody and transport the child to a facility designated by the appropriate local mental health authority in conjunction with the child’s current treating mental health professional. Prior to admission to the more restrictive environment, copies of the order shall be personally delivered to the child, the child’s parent or legal guardian, the administrator of the more restrictive environment, or the administrator’s designee, and the child’s former treatment provider or facility.
(d)
If the child has been in a less restrictive environment for more than 30 days and is aggrieved by the change to a more restrictive environment, the child or the child’s representative may request a review within 30 days of the change, by a neutral and detached fact finder as described in Subsection (3). The fact finder shall determine whether:
(i)
the less restrictive environment in which the child has been placed is exacerbating the child’s mental illness or increasing the risk of harm to self or others; or
(ii)
the less restrictive environment in which the child has been placed is not exacerbating the child’s mental illness or increasing the risk of harm to self or others, in which case the fact finder shall designate that the child remain in the less restrictive environment.
(e)
Nothing in this section prevents a local mental health authority or its designee, in conjunction with the child’s current mental health professional, from discharging a child from commitment or from placing a child in an environment that is less restrictive than that designated by the neutral and detached fact finder.
(13)
Each local mental health authority or its designee, in conjunction with the child’s current treating mental health professional shall discharge any child who, in the opinion of that local authority, or its designee, and the child’s current treating mental health professional, no longer meets the criteria specified in Subsection (4), except as provided by Section 26B-5-405. The local authority and the mental health professional shall assure that any further supportive services required to meet the child’s needs upon release will be provided.
(14)
Even though a child has been committed to the physical custody of a local mental health authority under this section, the child is still entitled to additional due process proceedings, in accordance with Section 26B-5-704, before any treatment that may affect a constitutionally protected liberty or privacy interest is administered. Those treatments include, but are not limited to, antipsychotic medication, electroshock therapy, and psychosurgery.
Renumbered and Amended by Chapter 308, 2023 General Session
