Competency & The Civil Commitment Process Pona Sitake & Ben Van Noy Utah County Attorney’s Office

1. Competency & The Civil Commitment ProcessPona Sitake & Ben Van NoyUtah County Attorney’s Office

2. CASE STUDY • Defendant Initially charged with Felony Retail theft • As a part of plea bargain defense counsel represents that Defendant is intellectually disabled and will never be competent and DSPD was currently providing services. • Prosecutor thought that meant Defendant was under DSPD supervision • Sometime in November of 2017 Defendant gets removed from DSPD services • On November 6, 2017, forces a young woman in her 20’s into bathroom at Rock Canyon Park in Provo. • Removes her pants and touches her while holding her at knife-point • Friends find young woman and Defendant runs away and escapes • BYU Police find him later that night hiding in bushes on campus PLEASE, TELL ME MORE.

3. Commitment on Finding of Incompetency to Stand TrialU.C.A. § 77-15-6 Competency Hearing Defendant may be ordered to remain in custody of DHS to be restored to competency. Competency review hearing held after three (3) months if not yet restored. Competent to stand trial. *Section 8 -Defendant charged with murder, aggravated murder, attempted murder, manslaughter, or a first degree felony, court may order nine (9) month recommitment for restoration Incompetent WITH substantial probability that Defendant may become competent in foreseeable future Defendant Charged with aggravated murder or murder and making reasonable progress towards restoration at the 9 month review, court may order up to 24 month recommitment for restoration. If not restored at the end of 24 month period, ordered released or temporarily detained pending civil commitment. Utah Code §77-15-6(4) Manslaughter, attempted murder or F1 and no progress made towards restoration, released or temporarily detained Not restored and non-subsection 8 charges* ordered released or temporarily detainedpending civil commitment Incompetent WITHOUT substantial probability that Defendant may become competent in foreseeable future • Utah code § 77-15-6(5)(c) • The court shall order the defendant released from the custody of the director UNLESS the prosecutor informs the court that commitment proceedings will be initiated. • Commitment proceedings must be initiated within seven (7) days after the court’s order entering the finding in subsection (4)(c) unless the court enlarges the time for good cause shown. • The defendant may be ordered to remain in custody of the director until commitment proceedings have been concluded.

4. Civil Commitments – Where to Begin? • Depends on whether the individual has a Mental Illness or an Intellectual Disability

5. The Application Process (Mental Illness) • Pink Sheet (Lower Burden of Proof) Utah Code 62A-15-629(1)(b) • Blue Sheet (Lower Burden of Proof) Utah Code 62A-15-629(1)(a) • White Sheet (Higher Burden of Proof) Utah Code 62A-15-631(a)(b)

6. Pink Sheet –Emergency Application for Involuntary Commitment (without cert.)(Form 34-2) • Filled out and signed by Mental Health Officer or a Police Officer, who observes behavior that gives them probable cause to believe that the person is mentally ill and there is a substantial likelihood of serious harm to self or others” • Police Officer can detain and transport based on the observations of a Mental Health Officer’s report to them • 24 hour hold (excluding weekend and legal holidays) • Statement of Circumstances must document: • Facts which called person to attention of officer • Belief that the person poses a substantial danger to self or others • Specific nature of danger and summary of observation upon which danger is based • Be sure to document “facts” not conclusions

8. Blue Sheet – Emergency Application for Involuntary Commitment With Certification (Form 34-1) • Filled out and signed by: • An applicant • responsible individual with first-hand knowledge of the facts indicating mental illness and risk of danger to self or others • AND • A physician or designated examiner within 3 days of having examined the patient • Authorizes temporary 24 hour hold (excluding weekends/holidays)

10. Pink Sheet v. Blue Sheet(Non-Judicial Emergency Admissions to LMHA) • Pink Sheet • Completed by Police Officer or Mental Health Officer • Conduct  leads an officer to conclude that person has mental illness (PC) • “Apparent” mental illness and conduct  substantial likelihood of serious harm to that person or others. • Blue Sheet • Part of application completed by observer (applicant) • Second part completed by a Licensed Physician or Designated Examiner • Because of mental illness “likely to injure self or others if not immediately restrained”

11. White Sheet or Judicial Order – Application of Involuntary Commitment (Form 36-1) • Standard form used to initiate an involuntary judicial civil commitment proceeding (Judge Howell). • Affiant fills out the first page which must be notarized • Second page is completed by physician or DE who has examined a patient in the last seven (7) days, OR • Affiant claims proposed patient has refused to submit to an examination, then • Court may issue “order to determine existing facts and preliminary mental health report” • Directs mental health staff to conduct an outreach interview and report back to court • Application is filed with the District Court • Court may issue an Order of Detention

13. The Application Process (Intellectual Disability) • Emergency Application • Requires personal knowledge of the individual’s condition (Similar to Pink Sheet) • Or • Certification by licensed physician or designated intellectual disability professional (Similar to Blue Sheet) • Requires action by Director of the Division • Utah Code 62A-5-311 • Petition to the Court • Utah Code 62A-5-312

16. Procedures for Involuntary Commitment(White Sheet) • Court Issues Order for Commencement of proceedings and Detention Pending Hearing and/or Examination upon finding a reasonable basis to believe patient is mentally ill and danger to self or others. • Notice of commencement of proceedings sent to patient, family members, legal counsel and local mental health authority. • Court appoints two Designated Examiners within 24 hours of issuing Court order • Court sets date for a hearing within 10 calendar days of receipt of application • Report of two Designated Examiners is completed and given to Court, prosecuting attorney, and patient’s attorney. • Indicates whether or not DE has examined patient • States underlying facts in support of formed opinion • Identifies what the DE’s opinion is (whether or not patient/defendant meets criteria)

21. Scenario 1 A 43-year-old female from Provo, traveling to California with her mother and step-father, makes multiple attempts to open the door and grab the gear shift while traveling on I-15. Mother and step-father attempt to take her to the hospital in St. George. Daughter refuses to get out of the car, eventually hospital staff has to come and assist. Previous schizophrenia diagnosis.

22. Involuntary Commitment Criteria • The individual has a mental illness; • Because of that individual’s mental illness, he/she poses a substantial danger of physical injury to self or others; • The individual lacks the ability to engage in a rational decision-making process regarding the acceptance or rejection of treatment; • There is no appropriate less-restrictive alternative; and • The local mental health authority can provide the individual with treatment that is adequate and appropriate

23. Substantial Danger Further DefinedUtah Code 62A-15-602 • “Substantial Danger” is defined as a person, who, by his or her behavior due to mental illness: A. is a serious risk to: 1. Commit Suicide, or 2. Inflict Serious Bodily Injury to self Or 3. because of his or her actions/inaction, suffer serious bodily injury because he/she is incapable of providing the basic necessities of life (food, clothing, and shelter). • is at a serious risk to cause or attempt to cause serious bodily injury or engage in harmful sexual conduct to others ** “immediate danger” not defined for intellectual disability

24. Substantial Danger – Harmful Sexual ConductUtah Code 62A-15-602 • “Harmful sexual conduct” means any of the following conduct upon an individual without the individual’s consent, or upon an individual who cannot legally consent to the conduct including under the circumstances described in subsections 76-5-406(1) through (12): • (a) sexual intercourse; • (b) penetration however slight of the genital or anal opening of the individual; • (c) any sexual act involving the genitals or anus of the actor or the individual and the mouth or anus of either individual, regardless of the gender of either participant; or • (d) any sexual act causing substantial emotional injury or bodily pain

25. Substantial Danger – Timeliness • The court shall consider all relevant historical and material information which is offered, subject to the rules of evidence, including reliable hearsay under Rule 1102, Utah Rules of Evidence. Utah Code 62A-15-631(15)(d). However… • When determining if the element of “Substantial Danger” exists, the Designated Examiner (DE) also considers the level of danger, based on behaviors, and/or threats, that have occurred in the relative recent past.

26. Involuntary Commitment Criteria • The individual has an intellectual disability; • Because of that individual’s intellectual disability, one or more of the following conditions exist: • immediate danger of physical injury to self or others; • Lacks the capacity to provide the basic necessities of life (food, clothing, shelter) • The individual is in need of immediate rehabilitation/care/treatment; and lacks the ability to engage in a rational decision-making process regarding the acceptance or rejection of treatment; • There is no appropriate less-restrictive alternative; and • The Division or Intermediate Care Facility can provide the individual with treatment that is adequate and appropriate

27. Scenario 2 45 year old female, no previous mental health history, going through divorce, police are called to the residence to keep the peace on seven separate occasions by children and husband. Self-admits to Provo Canyon Behavioral Health, at intake, there is evidence of hair being ripped out, recent jail booking photo shows her completely bald. Patient attempts to leave after a week, LMHA commences civil commitment proceedings (627(1)(b)). At civil commitment hearing, patient has a fashionable wig, well-manicured, well-dressed and well-spoken, and has an excellent explanation for every alleged incident, including the baldness.

28. Petition for New Hearing62A-15-631(18) • Sometimes called an appeal or re-hearing • Petition must be filed within 30 days of initial hearing • Petition must allege error or mistake in the Court’s findings • Court SHALL appoint three (instead of two) NEW examiners • Conduct a new examination • Set for new hearing.

29. Other Interesting tidbits • 62A-15-636.  Periodic review -- Discharge.     Each local mental health authority or its designee shall, as frequently as practicable, examine or cause to be examined every person who has been committed to it. Whenever the local mental health authority or its designee determines that the conditions justifying involuntary commitment no longer exist, it shall discharge the patient. If the patient has been committed through judicial proceedings, a report describing that determination shall be sent to the clerk of the court where the proceedings were held.

30. Other Interesting tidbits cont. • 62A-15-637.  Release of patient to receive other treatment -- Placement in more restrictive environment -- Procedures. … (5) Nothing contained in this section prevents a local mental health authority or its designee, pursuant to Section 62A-15-636, from discharging a patient from commitment or from placing a patient in an environment that is less restrictive than that ordered by the court.

31. Other Interesting tidbits • 62A-5-304.  Limited admission of persons convicted of felony offenses.     A person with an intellectual disability who has been convicted of a felony, or if a minor, of a crime that would constitute a felony if committed by an adult, may not be admitted to an intermediate care facility for people with an intellectual disability unless it is determined by the division, in accordance with the provisions of this part and other state law, that the person may benefit from treatment in that facility. 

32. Civil Commitment Process: Flow Chart White Sheet

33. KEY POINTS TO TAKE AWAY • Start the civil commitment process early, educate your prosecutors • Identify whether there’s an intellectual disability or mental illness • Know what the process is and who to get help from • Build positive working relationships with DSPD and Local Mental Health Authority Board

34. Questions? Pona Sitake (801) 851- 8052 ponas@utahcounty.gov Ben Van Noy (801) 851-8005 benv@utahcounty.gov