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IN THE SENATE
SENATE BILL NO. 1222
BY BURGOYNE
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AN ACT
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RELATING TO DECRIMINALIZING POSSESSION AND USE OF CONTROLLED SUBSTANCES IN
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SPECIFIED CIRCUMSTANCES, REQUIRING INTENTION TO DELIVER FOR CRIMINAL
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DRUG TRAFFICKING, AND PERMITTING CIVIL COMMITMENTS FOR SUBSTANCE-RE-
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LATED DISORDERS IN SPECIFIED CIRCUMSTANCES; AMENDING SECTION 37-2732,
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THAT CERTAIN ACTIONS SHALL CONSTITUTE INTENT TO DELIVER, AND TO MAKE
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VIDE FOR POSSESSION WITH INTENT TO DELIVER; AMENDING SECTION 37-2732C,
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FLUENCE OF A CONTROLLED SUBSTANCE, TO DEFINE A TERM, AND TO PROVIDE THAT
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PERSONS WHO USE OR ARE UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE
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CODE, TO REVISE A PROVISION REGARDING PROTECTIVE CUSTODY; AMENDING THE
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GUARDIAN APPOINTMENT FOR A SUBSTANCE-RELATED DISORDER AND TO MAKE TECH-
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SUSPECTED OF A SUBSTANCE-RELATED DISORDER MAY BE TAKEN INTO CUSTODY OR
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DETAINED UNDER CERTAIN CIRCUMSTANCES AND TO REVISE TERMINOLOGY; AMEND-
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DISORDER MAY BE COMMITTED UNDER CERTAIN CIRCUMSTANCES AND TO REVISE
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REVISE TERMINOLOGY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION
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TECHNICAL CORRECTION.
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amended to read as follows:
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37-2732. PROHIBITED ACTS A -- PENALTIES. (a) Except as authorized by
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this chapter, it is unlawful for any person to manufacture or deliver, or
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possess with intent to manufacture or deliver, a controlled substance.
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(1) Any person who violates this subsection with respect to:
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(A) A controlled substance classified in schedule I which is a
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narcotic drug or a controlled substance classified in schedule II,
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guilty of a felony and upon conviction may be imprisoned for a term
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of years not to exceed life imprisonment, or fined not more than
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twenty-five thousand dollars ($25,000), or both;
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(B) Any other controlled substance which is a nonnarcotic drug
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classified in schedule I, or a controlled substance classified in
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schedule III, is guilty of a felony and upon conviction may be im-
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prisoned for not more than five (5) years, fined not more than fif-
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teen thousand dollars ($15,000), or both;
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(C) A substance classified in schedule IV, is guilty of a felony
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and upon conviction may be imprisoned for not more than three (3)
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years, fined not more than ten thousand dollars ($10,000), or
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both;
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(D) A substance classified in schedules V and VI, is guilty of
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a misdemeanor and upon conviction may be imprisoned for not more
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than one (1) year, fined not more than five thousand dollars
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($5,000), or both.
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(b) Except as authorized by this chapter, it is unlawful for any per-
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son to create, deliver, or possess with intent to deliver, a counterfeit sub-
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stance.
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(1) Any person who violates this subsection with respect to:
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(A) A counterfeit substance classified in schedule I which is a
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narcotic drug, or a counterfeit substance classified in schedule
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II, is guilty of a felony and upon conviction may be imprisoned for
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not more than fifteen (15) years, fined not more than twenty-five
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thousand dollars ($25,000), or both;
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(B) Any other counterfeit substance classified in schedule I
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which is a nonnarcotic drug contained in schedule I or a counter-
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feit substance contained in schedule III, is guilty of a felony and
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upon conviction may be imprisoned for not more than five (5) years,
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fined not more than fifteen thousand dollars ($15,000), or both;
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(C) A counterfeit substance classified in schedule IV, is guilty
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of a felony and upon conviction may be imprisoned for not more
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than three (3) years, fined not more than ten thousand dollars
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($10,000), or both;
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(D) A counterfeit substance classified in schedules V and VI or a
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noncontrolled counterfeit substance, is guilty of a misdemeanor
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and upon conviction may be imprisoned for not more than one (1)
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year, fined not more than five thousand dollars ($5,000), or both.
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(c) It is unlawful for any person to possess with intent to deliver a
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controlled substance unless the substance was obtained directly from, or
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pursuant to, a valid prescription or order of a practitioner while acting in
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the course of his professional practice, or except as otherwise authorized
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by this chapter.
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(1) Any person who violates this subsection and has in his possession
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with intent to deliver a controlled substance classified in schedule I
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which is a narcotic drug or a controlled substance classified in sched-
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ule II, is guilty of a felony and upon conviction may be imprisoned for
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not more than seven (7) years, or fined not more than fifteen thousand
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dollars ($15,000), or both.
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(2) Any person who violates this subsection and has in his possession
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with intent to deliver lysergic acid diethylamide is guilty of a felony
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and upon conviction may be imprisoned for not more than three (3) years,
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or fined not more than five thousand dollars ($5,000), or both.
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(3) Any person who violates this subsection and has in his possession
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with intent to deliver a controlled substance which is a nonnarcotic
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drug classified in schedule I except lysergic acid diethylamide, or a
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controlled substance classified in schedules III, IV, V and VI is guilty
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of a misdemeanor and upon conviction thereof may be imprisoned for not
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more than one (1) year, or fined not more than one thousand dollars
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($1,000), or both.
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(d) It shall be unlawful for any person to be present at or on premises
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of any place where he knows illegal controlled substances are being manufac-
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tured or cultivated, or are being held for distribution, transportation, de-
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livery, administration, use, or to be given away. A violation of this sec-
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tion shall deem those persons guilty of a misdemeanor and upon conviction
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shall be punished by a fine of not more than three hundred dollars ($300) and
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(e) If any person is found to possess with intent to deliver marijuana,
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which for the purposes of this subsection shall be restricted to all parts of
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the plants of the genus Cannabis, including the extract or any preparation
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of cannabis which contains tetrahydrocannabinol, in an amount greater than
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three (3) ounces net weight, it shall be a felony and upon conviction may be
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imprisoned for not more than five (5) years, or fined not more than ten thou-
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sand dollars ($10,000), or both.
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(f) If two (2) or more persons conspire to commit any offense defined
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in this act, said persons shall be punishable by a fine or imprisonment, or
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both, which may not exceed the maximum punishment prescribed for the of-
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fense, the commission of which was the object of the conspiracy.
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(g) (1) It is unlawful for any person to manufacture or distribute a
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"simulated controlled substance," or to possess with intent to distrib-
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ute, a "simulated controlled substance." Any person who violates this
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subsection shall, upon conviction, be guilty of a misdemeanor and upon
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conviction thereof shall be punished by a fine of not more than one thou-
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jail, or both.
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(2) It is unlawful for any person to possess with intent to deliver a
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"simulated controlled substance." Any person who violates this subsec-
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tion shall, upon conviction, be guilty of a misdemeanor and upon convic-
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tion thereof shall be punished by a fine of not more than three hundred
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both.
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(h) It is unlawful for any person to cause to be placed in any newspaper,
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magazine, handbill, or other publication, or to post or distribute in any
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public place, any advertisement or solicitation offering for sale simulated
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controlled substances. Any person who violates this subsection is guilty of
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a misdemeanor and shall be punished in the same manner as prescribed in sub-
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section (g) of this section.
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(i) No civil or criminal liability shall be imposed by virtue of this
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chapter on any person registered under the Uniform Controlled Substances
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Act who manufactures, distributes, or possesses an imitation controlled
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substance for use as a placebo or other use by a registered practitioner, as
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practice or research.
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(j) No prosecution under this chapter shall be dismissed solely by rea-
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son of the fact that the dosage units were contained in a bottle or other con-
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tainer with a label accurately describing the ingredients of the imitation
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controlled substance dosage units. The good faith of the defendant shall be
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an issue of fact for the trier of fact.
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(k) Upon conviction of a felony or misdemeanor violation under this
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chapter or upon conviction of a felony pursuant to the "racketeering act,"
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for costs incurred by law enforcement agencies in investigating the viola-
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tion. Law enforcement agencies shall include, but not be limited to, the
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Costs shall include, but not be limited to, those incurred for the purchase
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of evidence, travel and per diem for law enforcement officers and witnesses
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throughout the course of the investigation, hearings and trials, and any
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other investigative or prosecution expenses actually incurred, including
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deposit into the drug and driving while under the influence enforcement
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bursement to the office of the attorney general, those moneys shall be paid
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to the general fund. A conviction for the purposes of this section means that
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the person has pled guilty or has been found guilty, notwithstanding the form
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of the judgment(s) or withheld judgment(s).
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(l) For purposes of this section, the act of a person sharing or provid-
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ing a controlled substance for use by another person shall constitute intent
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to deliver.
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amended to read as follows:
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37-2732B. TRAFFICKING -- MANDATORY SENTENCES. (a) Except as au-
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thorized in this chapter, and notwithstanding the provisions of section
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(1) Any person who knowingly manufactures, delivers, or brings into
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this state, or who is knowingly in actual or constructive posses-
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sion, with intent to deliver, of, one (1) pound of marijuana or more,
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or twenty-five (25) marijuana plants or more, as defined in section
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as "trafficking in marijuana." If the quantity of marijuana involved:
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(A) Is one (1) pound or more, but less than five (5) pounds, or con-
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sists of twenty-five (25) marijuana plants or more but fewer than
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fifty (50) marijuana plants, regardless of the size or weight of
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the plants, such person shall be sentenced to a mandatory minimum
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fixed term of imprisonment of one (1) year and fined not less than
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five thousand dollars ($5,000);
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(B) Is five (5) pounds or more, but less than twenty-five (25)
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pounds, or consists of fifty (50) marijuana plants or more but
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fewer than one hundred (100) marijuana plants, regardless of the
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size or weight of the plants, such person shall be sentenced to a
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mandatory minimum fixed term of imprisonment of three (3) years
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and fined not less than ten thousand dollars ($10,000);
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(C) Is twenty-five (25) pounds or more, or consists of one hundred
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(100) marijuana plants or more, regardless of the size or weight
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of the plants, such person shall be sentenced to a mandatory mini-
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mum fixed term of imprisonment of five (5) years and fined not less
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than fifteen thousand dollars ($15,000).
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(D) The maximum number of years of imprisonment for trafficking in
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marijuana shall be fifteen (15) years, and the maximum fine shall
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be fifty thousand dollars ($50,000).
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(E) For the purposes of this section, the weight of the marijuana
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is its weight when seized or as determined as soon as practica-
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ble after seizure, unless the provisions of subsection (c) of this
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section apply.
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(2) Any person who knowingly manufactures, delivers, or brings into
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this state, or who is knowingly in actual or constructive possession,
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with intent to deliver, of, twenty-eight (28) grams or more of cocaine
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or of any mixture or substance containing a detectable amount of cocaine
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is guilty of a felony, which felony shall be known as "trafficking in co-
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caine." If the quantity involved:
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(A) Is twenty-eight (28) grams or more, but less than two hundred
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(200) grams, such person shall be sentenced to a mandatory minimum
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fixed term of imprisonment of three (3) years and fined not less
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than ten thousand dollars ($10,000);
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(B) Is two hundred (200) grams or more, but less than four hundred
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(400) grams, such person shall be sentenced to a mandatory mini-
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mum fixed term of imprisonment of five (5) years and fined not less
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than fifteen thousand dollars ($15,000);
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(C) Is four hundred (400) grams or more, such person shall be sen-
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tenced to a mandatory minimum fixed term of imprisonment of ten
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(10) years and fined not less than twenty-five thousand dollars
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($25,000).
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(D) The maximum number of years of imprisonment for trafficking
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in cocaine shall be life, and the maximum fine shall be one hundred
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thousand dollars ($100,000).
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(3) Any person who knowingly manufactures or attempts to manufacture
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methamphetamine and/or amphetamine is guilty of a felony which shall
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be known as "trafficking in methamphetamine and/or amphetamine by man-
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ufacturing." Any person convicted of trafficking in methamphetamine
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and/or amphetamine by attempted manufacturing shall be sentenced to
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a mandatory minimum fixed term of imprisonment of two (2) years and
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not to exceed fifteen (15) years imprisonment and fined not less than
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ten thousand dollars ($10,000). Any person convicted of traffick-
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ing in methamphetamine and/or amphetamine by manufacturing shall be
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sentenced to a mandatory minimum fixed term of imprisonment of five
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(5) years and not to exceed life imprisonment and fined not less than
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twenty-five thousand dollars ($25,000). The maximum number of years of
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imprisonment for trafficking in methamphetamine and/or amphetamine by
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manufacturing shall be life, and the maximum fine shall be one hundred
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thousand dollars ($100,000).
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(4) Any person who knowingly delivers, or brings into this state, or
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who is knowingly in actual or constructive possession, with intent to
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deliver, of, twenty-eight (28) grams or more of methamphetamine or am-
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phetamine or of any mixture or substance containing a detectable amount
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of methamphetamine or amphetamine is guilty of a felony, which felony
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shall be known as "trafficking in methamphetamine or amphetamine." If
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the quantity involved:
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(A) Is twenty-eight (28) grams or more, but less than two hundred
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(200) grams, such person shall be sentenced to a mandatory minimum
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fixed term of imprisonment of three (3) years and fined not less
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than ten thousand dollars ($10,000);
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(B) Is two hundred (200) grams or more, but less than four hundred
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(400) grams, such person shall be sentenced to a mandatory mini-
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mum fixed term of imprisonment of five (5) years and fined not less
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than fifteen thousand dollars ($15,000);
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(C) Is four hundred (400) grams or more, such person shall be sen-
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tenced to a mandatory minimum fixed term of imprisonment of ten
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(10) years and fined not less than twenty-five thousand dollars
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($25,000).
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(D) The maximum number of years of imprisonment for trafficking in
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methamphetamine or amphetamine shall be life, and the maximum fine
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shall be one hundred thousand dollars ($100,000).
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(5) Any person who knowingly manufactures, delivers, brings into this
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state, or who is knowingly in actual or constructive possession, with
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intent to deliver, of the below-specified quantities of any of the fol-
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lowing immediate precursors to methamphetamine or amphetamine (namely
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ephedrine, methylamine, methyl formamide, phenylacetic acid, pheny-
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lacetone, or pseudoephedrine) as defined in section 37-2707(g)(1),
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tectable quantity of these substances, is guilty of a felony which shall
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be known as "trafficking in immediate precursors of methamphetamine or
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amphetamine." If the quantity:
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(A) Of ephedrine is five hundred (500) grams or more;
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(B) Of methylamine is one-half (1/2) pint or more;
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(C) Of methyl formamide is one-quarter (1/4) pint or more;
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(D) Of phenylacetic acid is five hundred (500) grams or more;
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(E) Of phenylacetone is four hundred (400) grams or more;
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(F) Of pseudoephedrine is five hundred (500) grams or more;
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such person shall be sentenced to a mandatory minimum fixed term of
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imprisonment of ten (10) years and fined not less than twenty-five thou-
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sand dollars ($25,000). The maximum number of years of imprisonment
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for trafficking in immediate precursors of methamphetamine or am-
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phetamine in the quantities specified in paragraphs (A) through (F) of
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this subsection (5) shall be life, and the maximum fine shall be one hun-
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dred thousand dollars ($100,000). If the quantity of pseudoephedrine
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is twenty-five (25) grams or more, but less than five hundred (500)
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grams, such person shall be sentenced to a term of imprisonment of up
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to ten (10) years and fined not more than twenty-five thousand dollars
7
($25,000).
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(6) Any person who knowingly manufactures, delivers or brings into this
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state, or who is knowingly in actual or constructive possession, with
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intent to deliver, of, two (2) grams or more of heroin or any salt, iso-
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mer, or salt of an isomer thereof, or two (2) grams or more of any mix-
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ture or substance containing a detectable amount of any such substance
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is guilty of a felony, which felony shall be known as "trafficking in
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heroin." If the quantity involved:
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(A) Is two (2) grams or more, but less than seven (7) grams, such
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person shall be sentenced to a mandatory minimum fixed term of im-
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prisonment of three (3) years and fined not less than ten thousand
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dollars ($10,000);
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(B) Is seven (7) grams or more, but less than twenty-eight (28)
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grams, such person shall be sentenced to a mandatory minimum fixed
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term of imprisonment of ten (10) years and fined not less than fif-
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teen thousand dollars ($15,000);
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(C) Is twenty-eight (28) grams or more, such person shall be sen-
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tenced to a mandatory minimum fixed term of imprisonment of fif-
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teen (15) years and fined not less than twenty-five thousand dol-
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lars ($25,000).
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(D) The maximum number of years of imprisonment for trafficking
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in heroin shall be life, and the maximum fine shall be one hundred
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thousand dollars ($100,000).
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(7) A second conviction for any trafficking offense as defined in sub-
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section (a) of this section shall result in a mandatory minimum fixed
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term that is twice that otherwise required under this section.
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(8) Notwithstanding any other provision of law, with respect to any
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person who is found to have violated the provisions of this section, ad-
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judication of guilt or the imposition or execution of sentence shall not
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be suspended, deferred, or withheld, nor shall such person be eligible
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for parole prior to serving the mandatory minimum fixed term of impris-
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onment prescribed in this section. Further, the court shall not retain
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jurisdiction.
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(b) Any person who agrees, conspires, combines or confederates with an-
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other person or solicits another person to commit any act prohibited in sub-
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section (a) of this section is guilty of a felony and is punishable as if he
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had actually committed such prohibited act.
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(c) For the purposes of subsections (a) and (b) of this section the
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weight of the controlled substance as represented by the person selling or
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delivering it is determinative if the weight as represented is greater than
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the actual weight of the controlled substance.
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37-2732C. USING OR BEING UNDER THE INFLUENCE -- PENALTIES. (a) Except
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as authorized in this chapter, it is unlawful for any person on a public road-
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way, on a public conveyance, on public property or on private property open
4
to the public, to use, or to be under the influence of, any controlled sub-
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stance specified in subsection (b), (c), (d), (e) and (f) of section 37-2705,
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sified in schedule III, IV or V, except when administered by or under the di-
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rection of a person licensed by the state to dispense, prescribe, or adminis-
10
ter controlled substances. It shall be the burden of the defense to show that
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it comes within this exception. For purposes of this subsection, "to be un-
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der the influence" means a level of influence (i) that presents a danger to
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oneself or others, or (ii) creates a disturbance of the peace, or (iii) that
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would cause a reasonable person to believe that the person is in an altered
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state.
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(b) Any person convicted of violating the provisions of subsection (a)
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of this section is guilty of a misdemeanor and is punishable by imprisonment
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one thousand dollars ($1,000) or by both.
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(c) Any person who is convicted of violating subsection (a) of this sec-
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tion, when the offense occurred within five (5) years of that person being
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convicted of two (2) or more separate violations of that subsection and who
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refuses to complete a licensed drug rehabilitation program offered by the
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court pursuant to subsection (d) shall be punished by imprisonment in the
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dred twenty (120) days, nor more than one (1) year. The court may not reduce
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the mandatory minimum period of incarceration provided in this subsection.
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(d) The court may, when it would be in the interest of justice, permit
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any person convicted of a violation of subsection (a) of this section, pun-
30
ishable under subsection (b) or (c) of this section, to complete a licensed
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drug rehabilitation program in lieu of part or all of the imprisonment in
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fender to pay all or a portion of the drug rehabilitation program. In order
34
to alleviate jail overcrowding and to provide recidivist offenders with a
35
reasonable opportunity to seek rehabilitation pursuant to this subsection,
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counties are encouraged to include provisions to augment licensed drug re-
37
habilitation programs in their substance abuse proposals and applications
38
submitted to the state for federal and state drug abuse funds.
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(e) Notwithstanding subsection (a), (b) or (c) of this section, or any
40
other provision of law to the contrary, any person who is unlawfully under
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the influence of cocaine, cocaine base, methamphetamine, heroin, or phen-
42
cyclidine while in the immediate personal possession of a loaded, operable
43
firearm is guilty of a public offense and is punishable by imprisonment in
44
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this subsection, "immediate possession" includes, but is not limited to, the
46
interior passenger compartment of a motor vehicle.
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(f) Every person who violates subsection (e) of this section is punish-
48
able upon the second and each subsequent conviction by imprisonment in the
49
state prison for a period of time not in excess of four (4) years.
9
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(g) In addition to any fine assessed under this section and notwith-
2
3
conviction, assess an additional cost to the defendant in the way of resti-
4
tution, an amount not to exceed two hundred dollars ($200) to the arresting
5
and/or prosecuting agency or entity. These funds shall be remitted to the
6
appropriate fund to offset the expense of toxicology testing.
7
(h) Any person who uses or is under the influence of a controlled sub-
8
stance pursuant to subsection (a) of this section may also be placed in pro-
9
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for community-assisted behavioral health treatment pursuant to chapter 3,
11
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amended to read as follows:
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39-307A. PROTECTIVE CUSTODY. (a) An intoxicated or drug addicted per-
15
son may come voluntarily to an approved public treatment facility for emer-
16
gency treatment. A person who appears to be intoxicated in a public place and
17
to be in need of help, if he consents to the proffered help, may be assisted to
18
his home, an approved public treatment facility, an approved private treat-
19
ment facility, or other health facility by a law enforcement officer.
20
(b) A person who appears to be incapacitated by alcohol or drugs shall
21
be taken into protective custody by a law enforcement officer and forthwith
22
brought to an approved treatment facility for emergency treatment. If no ap-
23
proved treatment facility is readily available he may be taken to a city or
24
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treatment facility, but in no event shall such confinement extend more than
26
twenty-four (24) hours. A law enforcement officer, in detaining the person
27
and in taking him to an approved treatment facility, is taking him into pro-
28
tective custody and shall make every reasonable effort to protect his health
29
and safety. In taking the person into protective custody, the detaining of-
30
ficer may take reasonable steps to protect himself. A taking into protective
31
custody under this section is not an arrest. No entry or other record shall
32
be made to indicate that the person has been arrested or charged with a crime.
33
(c) A person who comes voluntarily or is brought to an approved treat-
34
ment facility shall be examined as soon as possible. He may then be admitted
35
as a patient or referred to another health facility. The referring approved
36
treatment facility shall arrange for his transportation.
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(d) A person who by examination is found to be incapacitated by alco-
38
hol or drugs at the time of his admission or to have become incapacitated at
39
any time after his admission, may not be detained at the facility (1) once he
40
is no longer incapacitated by alcohol or drugs or (2) if he remains incapac-
41
itated by alcohol or drugs for more than seventy-two (72) hours after admis-
42
sion as a patient. A person may consent to remain in the facility as long as
43
the person in charge believes appropriate.
44
(e) If a patient is admitted to an approved treatment facility, his fam-
45
ily or next of kin shall be notified as promptly as possible. If an adult pa-
46
tient who is not incapacitated requests that there be no notification, his
47
request shall be respected.
48
(f) Law enforcement officers, personnel of the department, and person-
49
nel of an alcohol or drug treatment facility who act in compliance with this
10
1
section are acting in the course of their official duty and are not crimi-
2
nally or civilly liable therefor.
3
(g) If the person in charge of the approved treatment facility deter-
4
mines it is for the patient's benefit, the patient shall be encouraged to
5
agree to further diagnosis and appropriate voluntary treatment.
6
(h) That any person taken to a seventy-two (72) hour evaluation and
7
treatment facility shall be informed immediately that he has the right to
8
request and take a chemical test in order to ascertain whether he is an in-
9
toxicated or addicted person. If the person requests to take the test and
10
the professional person in charge of the facility then determines that the
11
person taken to the facility is not intoxicated or addicted, he shall im-
12
mediately release him. A record shall be maintained by the facility of the
13
results of the test.
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the same is hereby amended to read as follows:
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CHAPTER 3
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HOSPITALIZATION OF MENTALLY ILL COMMUNITY-ASSISTED BEHAVIORAL HEALTH
18
TREATMENT
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amended to read as follows:
21
66-317. DEFINITIONS. As used in this chapter, terms shall have the
22
following meanings:
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(1) "Department director" means the director of the state department of
24
health and welfare.
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(2) "Voluntary patient" means an individual admitted to a facility for
26
27
facility for observation, diagnosis, evaluation, care or treatment pursuant
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(3) "Involuntary patient" means an individual committed pursuant to
30
31
32
treatment of minors.
33
(4) "Licensed physician" means an individual licensed under the laws of
34
this state to practice medicine or a medical officer of the government of the
35
36
(5) "Designated examiner" means a psychiatrist, psychologist, psychi-
37
atric nurse, or social worker and such other mental behavioral health pro-
38
fessionals as may be designated in accordance with rules promulgated pur-
39
40
ment of health and welfare. Any person designated by the department director
41
will be specially qualified by training and experience in the diagnosis and
42
treatment of mental or mentally related illnesses or conditions disorders
43
and substance-related disorders.
44
(6) "Dispositioner" means a designated examiner employed by or under
45
contract with the department of health and welfare and designated by the de-
46
partment director to determine the appropriate location for care and treat-
47
ment of involuntary patients.
11
1
(7) "Facility" means any public or private hospital, sanatorium,
2
institution, mental behavioral health center or other organization desig-
3
nated in accordance with rules adopted by the board of health and welfare
4
as equipped to initially hold, evaluate, rehabilitate or to provide care or
5
treatment, or both, for the mentally ill persons with a mental disorder or
6
substance-related disorder.
7
(8) "Lacks capacity to make informed decisions about treatment" means
8
the inability, by reason of mental illness mental disorder or substance-re-
9
lated disorder, to achieve a rudimentary understanding after conscientious
10
efforts at explanation of the purpose, nature, and possible significant
11
risks and benefits of treatment.
12
(9) "Inpatient treatment facility" means a facility in which an indi-
13
vidual receives medical and, mental, or substance use treatment for not less
14
than a continuous twenty-four (24) hour period.
15
(10) "Supervised residential facility" means a facility, other than the
16
individual's home, in which the individual lives and in which there lives, or
17
are otherwise on duty during the times that the individual's presence is ex-
18
pected, persons who are employed to supervise, direct, treat or monitor the
19
individual.
20
(11) "Likely to injure himself or others" means either:
21
(a) A substantial risk that physical harm will be inflicted by the pro-
22
posed patient upon his own person, as evidenced by threats or attempts
23
to commit suicide or inflict physical harm on himself; or
24
(b) A substantial risk that physical harm will be inflicted by the
25
proposed patient upon another as evidenced by behavior which that has
26
caused such harm or which that places another person or persons in rea-
27
sonable fear of sustaining such harm; or
28
(c) The proposed patient lacks insight into his need for treatment and
29
is unable or unwilling to comply with treatment and, based on his psy-
30
chiatric history, clinical observation or other clinical evidence, if
31
he does not receive and comply with treatment, there is a substantial
32
risk he will continue to physically, emotionally or mentally deterio-
33
rate to the point that the person he will, in the reasonably near future,
34
inflict physical harm on himself or another person.
35
(12) "Mentally illMental disorder" means a person, who as a result of a
36
substantial disorder of thought, mood, perception, orientation, or memory,
37
which grossly impairs judgment, behavior, capacity to recognize and adapt
38
to reality, requires care and treatment at a facility or through outpatient
39
treatment.
40
(13) "Gravely disabled" means a person who, as the result of mental ill-
41
ness mental disorder or substance-related disorder, is:
42
(a) In danger of serious physical harm due to the person's inability to
43
provide for any of his own basic personal needs, such as nourishment, or
44
essential clothing, medical care, shelter or safety; or
45
(b) Lacking insight into his need for treatment and is unable or un-
46
willing to comply with treatment and, based on his psychiatric history,
47
clinical observation or other clinical evidence, if he does not receive
48
and comply with treatment, there is a substantial risk he will continue
49
to physically, emotionally or mentally deteriorate to the point that
50
the person he will, in the reasonably near future, be in danger of seri-
12
1
ous physical harm due to the person's his inability to provide for any of
2
his own basic personal needs such as nourishment, essential clothing,
3
medical care, shelter or safety.
4
(14) "Outpatient treatment" means mental behavioral health treatment,
5
not involving the continuous supervision of a person in an inpatient set-
6
ting, that is reasonably designed to alleviate or to reduce a person's men-
7
tal illness disorder or substance-related disorder or to maintain or pre-
8
vent deterioration of the person's physical, mental or emotional function-
9
ing. Mental Behavioral health services or treatment may include, but need
10
not be limited to, taking prescribed medication, reporting to a facility to
11
permit monitoring of the person's condition, or participating in individual
12
or group therapy.
13
(15) "Protection and advocacy system" means the agency designated by
14
the governor as the state protection and advocacy system pursuant to 42
15
U.S.C. section 15043 and 42 U.S.C. sections 10801 et seq.
16
(16) "Holding proceedings in abeyance" means an alternative to judicial
17
commitment based upon on an agreement entered into by all parties, includ-
18
ing the proposed patient, and agreed to by the court, providing for voluntary
19
conditions of treatment, which holds in a state of suspension or inactivity
20
the petition for involuntary commitment.
21
(17) "Substance-related disorder" means any substance use disorder or
22
substance-induced disorder as defined by the diagnostic and statistical
23
manual of mental disorders (DSM V).
24
(18) "Qualifying circumstances" means:
25
(a) As it pertains to a person with a mental disorder:
26
(i) Is gravely disabled; or
27
(ii) Is likely to injure himself or others.
28
(b) As it pertains to a person with a substance-related disorder:
29
(i) Is gravely disabled;
30
(ii) Is likely to injure himself or others;
31
(iii) Is intoxicated due to substance use;
32
(iv) Is experiencing withdrawal due to substance use;
33
(v) Lacks capacity to make informed decisions about treatment;
34
(vi) Poses a substantial risk of inflicting significant property
35
damage, as evidenced by acts or threats;
36
(vii) Has lost self-control, demonstrated by a repeated pattern of
37
failure to meet social, financial, or occupational responsibili-
38
ties;
39
(viii) Is pregnant and is committing substance use;
40
(ix) Received treatment for substance use in the past and has
41
failed to maintain sobriety; or
42
(x) Is in need of substance use treatment, in that:
43
1. Treatment is necessary for the person to stop substance
44
use;
45
2. The person is expected to benefit from treatment; or
46
3. Treatment is expected to prevent negative outcomes.
13
1
66-318. AUTHORITY TO ADMIT VOLUNTARY PATIENTS -- DENIAL OF ADMIS-
2
SION. (1) The director of any facility or a practitioner granted admitting
3
4
voluntary patient the following persons for observation, diagnosis, evalua-
5
tion, care or treatment of a mental illness disorder or a substance-related
6
disorder:
7
(a) Any person who is eighteen (18) years of age or older;
8
(b) Any individual fourteen (14) to eighteen (18) years of age who may
9
apply to be admitted for observation, diagnosis, evaluation, care or
10
treatment and the facility director will notify the parent, parents or
11
guardian of the individual of the admission; a parent or guardian may
12
apply for the individual's release and the facility director will re-
13
lease the patient within three (3) days, excluding Saturdays, Sundays
14
and legal holidays, of the application for discharge, unless the time
15
period for diagnosis, evaluation, care or treatment is extended pur-
16
17
(c) Any emancipated minor;
18
(d) Any individual under fourteen (14) years of age upon application of
19
the individual's parent or guardian, provided that admission to an in-
20
patient facility shall require a recommendation for admission by a des-
21
ignated examiner;
22
(e) Any individual who lacks capacity to make informed decisions about
23
treatment upon application of the individual's guardian; provided that
24
admission to an inpatient facility shall require a recommendation for
25
admission by a designated examiner; or
26
(f) Any individual confined for examination pursuant to section 18-211
27
28
(2) The director of any facility or a practitioner granted admitting
29
30
sion to any applicant under this section whenever:
31
(a) The applicant is determined not to be in need of observation, diag-
32
nosis, evaluation, care or treatment at the facility;
33
(b) The applicant is determined to lack capacity to make informed deci-
34
sions about treatment unless the application is made by a guardian with
35
authority to consent to treatment; or
36
(c) The applicant's welfare or the welfare of society, or both, are bet-
37
38
39
amended to read as follows:
40
66-319. RELEASE OF VOLUNTARY INPATIENTS. The director of an inpa-
41
tient facility shall release any person, admitted in accordance with the
42
43
treatment is no longer appropriate. If upon evaluation at the facility, it
44
is determined that the patient is mentally ill has a mental disorder or a
45
substance-related disorder and is likely to injure himself or others or is
46
gravely disabled qualifying circumstances exist, the director of the fa-
47
cility shall institute appropriate judicial proceedings for continued care
48
and treatment. In the case of persons confined pursuant to section 20-520
49
14
1
2
defendant shall continue to be confined at the facility for transportation
3
4
of a guardian, those persons shall be released upon the termination of the
5
guardian's authority to consent to treatment.
6
7
amended to read as follows:
8
66-322. APPOINTMENT OF GUARDIAN FOR INDIVIDUALS LACKING CAPACITY TO
9
MAKE INFORMED DECISIONS ABOUT TREATMENT -- JUDICIAL PROCEDURE . (a) Proceed-
10
ings for the appointment of a guardian of a mentally ill person who has a men-
11
tal disorder or a substance-related disorder may be commenced by the filing
12
of a written petition with a court of competent jurisdiction by a friend,
13
relative, spouse or guardian of the proposed patient, by a licensed physi-
14
cian, licensed clinical psychologist, prosecuting attorney, or other public
15
16
tor of any facility in which such patient may be.
17
(b) The petition shall state the name and last known address of the
18
proposed patient; the name and address of either the spouse, next of kin or
19
friend of the proposed patient; whether a guardian of the proposed patient
20
has been previously appointed under the laws of this or any other state and,
21
if so, the name and address of the guardian and the circumstances of such
22
appointment; and a precise statement showing that the proposed patient is
23
mentally ill has a mental disorder or a substance-related disorder, that
24
treatment is available for such illness disorder, and that the proposed pa-
25
tient lacks capacity to make informed decisions about treatment.
26
(c) Any such petition shall be accompanied by a certificate of a li-
27
censed physician or licensed clinical psychologist stating that the physi-
28
cian or psychologist has personally examined the proposed patient within the
29
last fourteen (14) days and is of the opinion: (i) that the proposed patient
30
is mentally ill has a mental disorder or a substance-related disorder, (ii)
31
that in the absence of treatment the immediate prognosis is for major dis-
32
tress of the proposed patient which will result in serious mental or physi-
33
cal deterioration of the proposed patient, (iii) that treatment is available
34
which is likely to avoid serious mental or physical deterioration of the pro-
35
posed patient, and (iv) that the proposed patient lacks capacity to make in-
36
formed decisions about treatment; or by a written statement by the physician
37
or psychologist that the proposed patient has refused to submit to an exami-
38
nation.
39
(d) Upon receipt of a petition, the court shall within forty-eight (48)
40
hours appoint another licensed physician or licensed clinical psychologist
41
to make a personal examination of the proposed patient, or if the proposed
42
patient has not been examined, the court shall appoint two (2) licensed
43
physicians or licensed clinical psychologists to make individual personal
44
examinations of the proposed patient and may order the proposed patient to
45
submit to an immediate examination. Within seventy-two (72) hours, the
46
physician or psychologist shall file with the court certificates described
47
in subparagraph subsection (c) above of this section, if necessary.
48
(e) Upon receipt of such petition and certificates, the court shall ap-
49
point a time and place for hearing not more than seven (7) days from receipt
15
1
of such certificates and thereupon give written notice to the proposed pa-
2
tient. The notice shall include a copy of the petition and certificates and
3
notice of the proposed patient's right to be represented by an attorney, or
4
if indigent, to be represented by a court-appointed attorney. Notice of the
5
time and place of the hearing shall also be given to the petitioner.
6
(f) An opportunity to be represented by counsel shall be afforded to ev-
7
ery proposed patient, and if neither the proposed patient nor others provide
8
counsel, the court shall appoint counsel in accordance with chapter 8, title
9
10
(g) The hearing shall be held at a facility, at the home of the proposed
11
patient, or at any other suitable place not likely to have a harmful effect on
12
the proposed patient's physical or mental health.
13
(h) The proposed patient and the petitioner shall be afforded an oppor-
14
tunity to appear at the hearing, to testify, and to present and cross-exam-
15
ine witnesses. At the hearing, any existing provision of law prohibiting the
16
disclosure of confidential communications between the examining physician
17
or psychologist and the proposed patient shall not apply and the physicians
18
or psychologists who examined the proposed patient shall be competent wit-
19
nesses to testify as to the proposed patient's condition. The proposed pa-
20
tient shall be required to be present at the hearing, and be free from drugs
21
likely to impair the proposed patient's ability to communicate with counsel
22
or understand the proceedings, unless the right to be present or free from
23
drugs is knowingly and voluntarily waived by the patient or unless the pres-
24
ence of the patient at the hearing would unduly disrupt the judicial proceed-
25
ings. A record of the proceedings shall be made as for other civil hearings.
26
The hearing shall be conducted in as informal a manner as may be consistent
27
with orderly procedure and the rules of evidence.
28
(i) The court shall appoint a person other than the treating profes-
29
sional to act in the proposed patient's best interest with authority to con-
30
sent to treatment, if, upon completion of the hearing and consideration of
31
the record, the court finds by clear and convincing evidence that:
32
(1) The proposed patient has a severe and reliably diagnosable mental
33
illness mental disorder or a substance-related disorder;
34
(2) Without treatment, the immediate prognosis is for major distress
35
resulting in serious mental or physical deterioration of the proposed
36
patient;
37
(3) Treatment is available for such illness disorder;
38
(4) The proposed patient lacks capacity to make informed decisions
39
about treatment; and
40
(5) The relative risks and benefits of treatment or nontreatment are
41
such that a reasonable person would consent to treatment.
42
The court shall consider appointing persons to give consent in the follow-
43
ing priority: the proposed patient's spouse, next of kin, friend or if the
44
proposed patient's spouse, next of kin or friend are unable or unwilling, an-
45
other appropriate person not associated with the facility where the person
46
is being, or shall be, treated.
47
(j) The appointed person shall have authority to consent to treatment,
48
including treatment at a facility. Upon approval of the court, the appointed
49
person may pay the costs of treatment from the patient's money and tangible
50
property deliverable to or received by the patient during the period of the
16
1
appointed person's authority, and may apply for any benefits to which the
2
patient is entitled. In the exercise of his powers, the appointed person
3
is to act as a fiduciary and shall observe the standards of care applicable
4
5
shall continue for a period of seven (7) weeks or until the court determines
6
that the patient no longer lacks capacity to make informed decisions about
7
treatment, whichever is shorter.
8
(k) Upon petition of the appointed person, authority to consent may be
9
continued for an additional seven (7) week period, if the court again enters
10
the findings required by subparagraph subsection (i) above of this section.
11
The petition for continued authority shall be accompanied by the certifi-
12
cate of the treating professional meeting the requirements of subparagraph
13
subsection (c) above of this section. The petition for continued author-
14
ity and physician's certificate shall be served upon the patient and the
15
patient's attorney. If the proposed patient objects to the continued au-
16
thority, the court shall conduct a hearing, following notice of the time and
17
place of such hearing to the petitioner, the proposed patient and the pro-
18
posed patient's attorney.
19
(l) Proceedings for appointment of a person with authority to consent
20
under this section may be consolidated with proceedings for the involuntary
21
22
however, that appointment of a person with authority to consent under this
23
section shall terminate the proceedings for the involuntary care under sec-
24
25
(m) No more than two (2) petitions with authority to consent shall be
26
granted under subsection (i) of this section within any twelve (12) month pe-
27
riod, provided that other proceedings under this chapter or the Uniform Pro-
28
bate Code shall be permitted.
29
(n) The person with authority to consent appointed pursuant to this
30
section shall not be personally responsible for the cost of care or treat-
31
ment rendered the mentally ill individual, simply by reason of the authority
32
granted by this section.
33
34
amended to read as follows:
35
66-325. RESIDENCE NOT AFFECTED BY PLACE OF TREATMENT. For purposes of
36
this chapter, the terms "residence," "residing," or "resides" shall refer
37
to the place where the mentally ill person with a mental disorder or a sub-
38
stance-related disorder lives. None of the time spent in any facility shall
39
be regarded as contributing toward, or acquiring, residence for any purpose.
40
41
amended to read as follows:
42
66-326. DETENTION WITHOUT HEARING. (1) No person shall be taken into
43
custody or detained as an alleged emergency patient for observation, diag-
44
nosis, evaluation, care or treatment of mental illness a mental disorder or
45
a substance-related disorder unless and until the court has ordered such
46
apprehension and custody under the provisions outlined in section 66-329,
47
17
1
peace officer and placed in a facility, or the person may be detained at a
2
hospital at which the person presented or was brought to receive medical or
3
mental behavioral health care, if the peace officer or a physician medical
4
staff member of such hospital or a physician's assistant or advanced prac-
5
tice registered nurse practicing in such hospital has reason to believe that
6
the person is gravely disabled due to mental illness a mental disorder or a
7
substance-related disorder or the person's continued liberty poses an immi-
8
nent danger to that person or others, as evidenced by a threat of substantial
9
physical harm; provided, under no circumstances shall the proposed patient
10
be detained in a nonmedical unit used for the detention of individuals
11
charged with or convicted of penal offenses. For purposes of this section,
12
the term "peace officer" shall include state probation and parole officers
13
exercising their authority to supervise probationers and parolees. When-
14
ever a person is taken into custody or detained under this section without
15
court order, the evidence supporting the claim of grave disability due to
16
mental illness a mental disorder or a substance-related disorder or imminent
17
danger must be presented to a duly authorized court within twenty-four (24)
18
hours from the time the individual was placed in custody or detained.
19
(2) If the court finds the individual to be gravely disabled due to
20
mental illness a mental disorder or a substance-related disorder or immi-
21
nently dangerous under subsection (1) of this section, the court shall issue
22
a temporary custody order requiring the person to be held in a facility,
23
and requiring an examination of the person by a designated examiner within
24
twenty-four (24) hours of the entry of the order of the court. Under no
25
circumstances shall the proposed patient be detained in a nonmedical unit
26
used for the detention of individuals charged with or convicted of penal
27
offenses.
28
(3) Where an examination is required under subsection (2) of this sec-
29
tion, the designated examiner shall make his findings and report to the court
30
within twenty-four (24) hours of the examination.
31
(4) If the designated examiner finds, in his examination under this
32
section, that the person is mentally ill has a mental disorder or sub-
33
stance-related disorder, and either is likely to injure himself or others
34
or is gravely disabled due to mental illness qualifying circumstances ex-
35
ist, the prosecuting attorney shall file, within twenty-four (24) hours of
36
the examination of the person, a petition with the court requesting the pa-
37
tient's detention pending commitment proceedings pursuant to the provisions
38
39
shall order his detention to await hearing which shall be within five (5)
40
days (including Saturdays, Sundays and legal holidays) of the detention or-
41
der. If no petition is filed within twenty-four (24) hours of the designated
42
examiner's examination of the person, the person shall be released from the
43
facility.
44
(5) Any person held in custody under the provisions of this section
45
shall have the same protection and rights which are guaranteed to a person
46
already committed to the department director. Upon taking a person into
47
custody, notice shall be given to the person's immediate relatives of the
48
person's physical whereabouts and the reasons for detaining or taking the
49
person into custody.
18
1
(6) Nothing in this section shall preclude a hospital from transferring
2
a person who has been detained under this section to another facility that
3
is willing to accept the transferred individual for purposes of observation,
4
diagnosis, evaluation, care or treatment.
5
6
amended to read as follows:
7
66-328. JURISDICTION OF PROCEEDINGS FOR COMMITMENT. Proceedings for
8
the care of mentally ill persons with a mental disorder or a substance-re-
9
10
11
state where such person is found.
12
13
amended to read as follows:
14
66-329. COMMITMENT TO DEPARTMENT DIRECTOR UPON COURT ORDER -- JUDI-
15
CIAL PROCEDURE. (1) Proceedings for the involuntary care and treatment of
16
mentally ill a persons with a mental disorder or a substance-related disor-
17
der by the department of health and welfare may be commenced by the filing
18
of a written application with a court of competent jurisdiction by a friend,
19
relative, spouse or guardian of the proposed patient, by a licensed physi-
20
cian, by a physician assistant or advanced practice registered nurse prac-
21
ticing in a hospital, by a prosecuting attorney or other public official of a
22
23
cility in which such patient may be.
24
(2) The application shall state the name and last known address of the
25
proposed patient; the name and address of the spouse, guardian, next of kin,
26
or friend of the proposed patient; whether the proposed patient can be cared
27
for privately in the event commitment is not ordered; whether the proposed
28
patient is, at the time of the application, a voluntary patient; whether the
29
30
Code; and a simple and precise statement of the facts showing that the pro-
31
posed patient is mentally ill has a mental disorder or a substance-related
32
disorder and either likely to injure himself or others or is gravely disabled
33
due to mental illness qualifying circumstances exist.
34
(3) Any such application shall be accompanied by a certificate of a des-
35
ignated examiner stating that he has personally examined the proposed pa-
36
tient within the last fourteen (14) days and is of the opinion that the pro-
37
posed patient is: (i) mentally ill has a mental disorder or a substance-re-
38
lated disorder; (ii) is likely to injure himself or others or is gravely dis-
39
abled due to mental illness a mental disorder or a substance-related disor-
40
der; and (iii) lacks capacity to make informed decisions about treatment;
41
or a written statement by the applicant that the proposed patient has refused
42
to submit to examination by a designated examiner.
43
(4) Upon receipt of an application for commitment, the court shall,
44
within forty-eight (48) hours, appoint another designated examiner to make
45
a personal examination of the proposed patient, or if the proposed patient
46
has not been examined, the court shall appoint two (2) designated examiners
47
to make individual personal examinations of the proposed patient and may
19
1
order the proposed patient to submit to an immediate examination. If neither
2
designated examiner is a physician, the court shall order a physical exam-
3
ination of the proposed patient. At least one (1) designated The examiner
4
shall be a psychiatrist, licensed physician or licensed psychologist. The
5
designated examiners shall report to the court their his findings within
6
the following seventy-two (72) hours as to the mental condition of the pro-
7
posed patient and his need for custody, care, or treatment by a facility.
8
The reports shall be in the form of a written certificates that shall be
9
filed with the court. The court may terminate the proceedings and dismiss
10
the application without taking any further action in the event the reports
11
of the designated examiners are is to the effect that the proposed patient
12
is not mentally ill does not have a mental disorder or a substance-related
13
disorder or, although mentally ill the patient has a mental disorder or a
14
substance-related disorder, is not likely to injure himself or others or is
15
not gravely disabled due to mental illness such mental disorder or a sub-
16
stance-related disorder. If the proceedings are terminated, the proposed
17
patient shall be released immediately.
18
(5) If the designated examiner's certificate states a belief that the
19
proposed patient is mentally ill has a mental disorder or a substance-re-
20
lated disorder and either likely to injure himself or others or is gravely
21
disabled due to mental illness qualifying circumstances exist, the judge of
22
such court shall issue an order authorizing any health officer, peace of-
23
ficer, or director of a facility to take the proposed patient to a facility
24
in the community in which the proposed patient is residing or to the near-
25
est facility to await the hearing, and for good cause may authorize treat-
26
ment during such period subject to the provisions of section 66-346(a)(4),
27
28
a nonmedical unit used for the detention of individuals charged with or con-
29
victed of penal offenses.
30
(6) Upon receipt of such application and designated examiners' re-
31
ports, the court shall appoint a time and place for a hearing not more than
32
seven (7) days from the receipt of such designated examiners' reports and
33
thereupon give written notice of such time and place of such hearing, to-
34
gether with a copy of the application, designated examiner's certificates,
35
and notice of the proposed patient's right to be represented by an attor-
36
ney or, if indigent, to be represented by a court-appointed attorney, to
37
the applicant, to the proposed patient, to the proposed patient's spouse,
38
guardian, next of kin, or friend. With the consent of the proposed patient
39
and his attorney, the hearing may be held immediately. Upon motion of the
40
petitioner, or upon motion of the proposed patient and attorney, and for good
41
cause shown, the court may continue the hearing up to an additional five (5)
42
days during which time, for good cause shown, the court may authorize treat-
43
ment.
44
(7) An opportunity to be represented by counsel shall be afforded to ev-
45
ery proposed patient, and, if neither the proposed patient nor others pro-
46
vide counsel, the court shall appoint counsel in accordance with chapter 8,
47
48
the court.
49
(8) If the involuntary detention was commenced under this section, the
50
hearing shall be held at a facility, at the home of the proposed patient, or
20
1
at any other suitable place not likely to have a harmful effect on the pro-
2
posed patient's physical or mental health. Venue for the hearing shall be
3
4
proposed patient was found immediately prior to commencement of such pro-
5
ceedings.
6
(9) In all proceedings under this section, any existing provision of
7
the law prohibiting the disclosure of confidential communications between
8
the designated examiner and proposed patient shall not apply and any desig-
9
nated examiner who shall have examined the proposed patient shall be a compe-
10
tent witness to testify as to the proposed patient's condition.
11
(10) The proposed patient, the applicant, and any other persons to whom
12
notice is required to be given shall be afforded an opportunity to appear at
13
the hearing, to testify, and to present and cross-examine witnesses. The
14
proposed patient shall be required to be present at the hearing unless the
15
court determines that the mental or physical state of the proposed patient
16
is such that his presence at the hearing would be detrimental to the proposed
17
patient's health or would unduly disrupt the proceedings. A record of the
18
proceedings shall be made as for other civil hearings. The hearing shall be
19
conducted in as informal a manner as may be consistent with orderly proce-
20
dure. The court shall receive all relevant and material evidence consistent
21
with the rules of evidence.
22
(11) If, upon completion of the hearing and consideration of the record,
23
and after consideration of reasonable alternatives including, but not lim-
24
ited to, holding the proceedings in abeyance for a period of up to thirty (30)
25
days, the court finds by clear and convincing evidence that the proposed pa-
26
tient:
27
(a) Is mentally ill Has a mental disorder or a substance-related disor-
28
der; and
29
(b) Is, bBecause of such condition, likely to injure himself or others,
30
or is gravely disabled due to mental illness qualifying circumstances
31
exist;
32
the court shall order the proposed patient committed to the custody of the
33
department director for observation, care, and treatment for an indeter-
34
minate period of time not to exceed one (1) year. The department director,
35
through his dispositioner, shall determine within twenty-four (24) hours
36
the least restrictive available facility or outpatient treatment, con-
37
sistent with the needs of each patient committed under this section for
38
observation, care, and treatment.
39
(12) The commitment order constitutes a continuing authorization for
40
the department of health and welfare, law enforcement, or director of a fa-
41
cility, upon request of the director of the outpatient facility, the physi-
42
cian, or the department director through his dispositioner, to transport a
43
committed patient to designated outpatient treatment for the purpose of mak-
44
ing reasonable efforts to obtain the committed patient's compliance with the
45
terms and conditions of outpatient treatment. If the director of the outpa-
46
tient facility, the treating physician, or the department director through
47
his dispositioner determines any of the following:
48
(a) The patient is failing to adhere to the terms and conditions of
49
outpatient treatment or the patient refuses outpatient treatment after
50
reasonable efforts at compliance have been made; or
21
1
(b) Outpatient treatment is not effective after reasonable efforts
2
have been made;
3
the department director through his dispositioner shall cause the commit-
4
ted patient to be transported by the department of health and welfare, law
5
enforcement, or director of a facility to the least restrictive available
6
facility for observation, care, and treatment on an inpatient basis. Within
7
forty-eight (48) hours of a committed patient's transfer from outpatient
8
treatment to a facility for inpatient treatment, the department director
9
through his dispositioner shall notify the court that originally ordered the
10
commitment, the committed patient's attorney, and the committed patient's
11
spouse, guardian, adult next of kin, or friend of the change in disposi-
12
tion and provide a detailed affidavit reciting the facts and circumstances
13
supporting the transfer from outpatient treatment to inpatient treatment
14
at a facility. The court shall conduct an ex parte review of the notice and
15
affidavit within forty-eight (48) hours of filing and determine whether the
16
change in disposition from outpatient treatment to inpatient treatment at a
17
facility is supported by probable cause. In no event shall the calculation
18
of forty-eight (48) hours provided for in this subsection include holidays
19
20
culation include weekends. If the court determines that probable cause
21
exists, the department director through his dispositioner shall continue
22
with care and treatment on an inpatient basis at the least restrictive avail-
23
able facility. Within twenty-four (24) hours of a finding of probable cause,
24
the court shall issue an order to show cause why the patient does not meet
25
the conditions in paragraph (a) or (b) of this subsection. The order shall
26
be served on the committed patient, the committed patient's attorney and the
27
committed patient's spouse, guardian, adult next of kin, or friend. The pa-
28
tient shall have fifteen (15) days to present evidence that the conditions in
29
paragraph (a) or (b) of this subsection have not been met. In no event shall
30
the calculation of twenty-four (24) hours provided for in this subsection
31
32
nor shall the calculation include weekends. If the court determines that
33
a change in disposition from outpatient treatment to inpatient treatment
34
does not meet the conditions in paragraph (a) or (b) of this subsection, the
35
department director through his dispositioner will continue with outpatient
36
treatment on the same or modified terms and conditions. Nothing provided
37
in this section shall limit the authority of any law enforcement officer to
38
detain a patient pursuant to the emergency authority conferred by section
39
40
(13) Nothing in this chapter or in any rule adopted pursuant thereto
41
shall be construed to authorize the detention or involuntary admission to a
42
hospital or other facility of an individual who:
43
(a) Has epilepsy, a developmental disability, a physical disabil-
44
ity, or an intellectual disability, is impaired by chronic alcoholism
45
or drug abuse, or is aged, unless in addition to such condition, such
46
person is mentally ill has a mental disorder or a substance-related dis-
47
order;
48
(b) Is a patient under treatment by spiritual means alone, through
49
prayer, in accordance with the tenets and practices of a recognized
50
church or religious denomination by a duly accredited practitioner
22
1
thereof and who asserts to any authority attempting to detain him that
2
he is under such treatment and who gives the name of a practitioner so
3
treating him to such authority; or
4
(c) Can be properly cared for privately with the help of willing and
5
able family or friends, and provided that such person may be detained or
6
involuntarily admitted if such person is mentally ill has a mental dis-
7
order or a substance-related disorder and presents a substantial risk
8
of injury to himself or others if allowed to remain at liberty.
9
(14) The order of commitment shall state whether the proposed patient
10
lacks capacity to make informed decisions about treatment, the name and ad-
11
dress of the patient's attorney and the patient's spouse, guardian, adult
12
next of kin, or friend.
13
(15) If the patient has no spouse or guardian and if the patient has
14
15
Code, or by the patient while confined at a facility, the court shall appoint
16
a guardian ad litem for the purpose of preserving the patient's estate, pend-
17
ing further guardianship or conservatorship proceedings.
18
(16) The commitment shall continue until terminated and shall be unaf-
19
fected by the patient's conditional release or change in disposition.
20
21
amended to read as follows:
22
66-330. TRANSPORTATION -- TEMPORARY DETENTION -- NOTICE. (a) After
23
the dispositioner has designated the place of treatment, he shall notify the
24
facility director of the disposition and of any medical, security or behav-
25
26
within forty-eight (48) hours to the designated facility. Whenever practi-
27
cable, the individual may be accompanied by one (1) or more of his friends or
28
relatives.
29
(b) Pending his removal to the designated place of treatment, a pa-
30
tient taken into custody or ordered to be committed to the custody of the
31
department director pursuant to this chapter may be detained in his home, a
32
licensed foster home, or any other suitable facility under such reasonable
33
conditions as the dispositioner may fix, but he shall not be detained in a
34
nonmedical facility used for the detention of individuals charged with or
35
convicted of penal offenses. The dispositioner shall take such reasonable
36
measures, to secure proper mental behavioral health care and treatment of an
37
individual temporarily detained pursuant to this chapter.
38
(c) The dispositioner shall notify the court, the patient's attorney
39
and either the patient's spouse, guardian, adult next of kin or friend, of
40
the facility to which the patient has been dispositioned.
41
42
amended to read as follows:
43
66-335. COMMITMENT OF MENTALLY ILL CONVICTS WITH A MENTAL DISORDER OR
44
A SUBSTANCE-RELATED DISORDER. Mentally ill cConvicts with a mental disorder
45
or a substance-related disorder may be received into said facilities in ac-
46
cordance with rules and regulations adopted by the board of health and wel-
47
fare acting in conjunction with the state board of correction.
23
1
2
amended to read as follows:
3
66-337. REVIEW, TERMINATION OF COMMITMENT AND DISCHARGE OF PA-
4
TIENTS. (a) The department director or his designee shall as frequently as
5
practicable but at least once at the end of the first ninety (90) days examine
6
or cause to be examined every patient committed to his custody or admitted to
7
8
ditionally release, discharge or terminate the commitment of the patient.
9
If the patient has not been conditionally released, discharged, or had the
10
commitment terminated, a similar review shall be conducted every one hundred
11
twenty (120) days thereafter. A report of each review and determination
12
regarding an involuntary patient shall be sent to the committing court,
13
14
torney, and either the patient's spouse, guardian, next of kin or friend.
15
(b) The commitment of an involuntary patient shall be terminated if the
16
patient is no longer mentally ill a person with a mental disorder or a sub-
17
stance-related disorder or is no longer likely to injure himself or others
18
or is no longer gravely disabled qualifying circumstances no longer exist;
19
20
ted of criminal charges filed prior to July 1, 1982, on grounds of mental
21
disease or defect, or committed pursuant to sections 18-212(4) and 66-329,
22
23
ity unless thirty (30) days before such release, the department director or
24
his designee shall notify the committing court and prosecuting attorney of
25
the contemplated release.
26
(c) Upon notification of intention to release from an inpatient facil-
27
28
criminal charges filed prior to July 1, 1982, on grounds of mental disease or
29
30
as unfit to proceed, and upon motion of an interested party or the court on
31
its own motion, the court shall determine whether the conditions justifying
32
such release exist. In making such determination, the court may order an in-
33
dependent examination of the patient. The cost of such independent examina-
34
35
having jurisdiction of the case. If no motion is made, the patient may be re-
36
leased according to the notice.
37
38
39
40
laws of 1977, which is placed here for reference only and is not a reenactment
41
42
18-214. Commitment of acquitted defendant -- Conditional release --
43
Revocation of release within five years. (1) When a defendant is acquitted
44
on the ground of mental disease or defect excluding responsibility, the
45
court shall order him to be committed to the custody of the director of the
46
department of health and welfare to be placed in an appropriate institution
47
for custody, care and treatment.
48
(2) If the director of the department of health and welfare is of the
49
view that a person committed to his custody, pursuant to paragraph (1) of
24
1
this section, may be discharged or released on condition without danger to
2
himself or to others, he shall make application for the discharge or release
3
of such person in a report to the court by which such person was committed
4
and shall transmit a copy of such application and report to the prosecuting
5
6
shall thereupon appoint at least two (2) qualified psychiatrists to exam-
7
ine such person and to report within sixty (60) days, or such longer period
8
as the court determines to be necessary for the purpose, their opinion as to
9
his mental condition. To facilitate such examination and the proceedings
10
thereon, the court may cause such person to be confined in any institution
11
located near the place where the court sits, which may hereafter be desig-
12
nated by the director of the department of health and welfare as suitable for
13
the temporary detention of irresponsible persons.
14
(3) If the court is satisfied by the report filed pursuant to paragraph
15
(2) of this section and such testimony of the reporting psychiatrists as
16
the court deems necessary that the committed person may be discharged or
17
released on condition without danger to himself or others, the court shall
18
order his discharge or his release on such conditions as the court determines
19
to be necessary. If the court is not so satisfied, it shall promptly order
20
a hearing to determine whether such person may safely be discharged or re-
21
leased. Any such hearing shall be deemed a civil proceeding and the burden
22
shall be upon the committed person to prove that he may safely be discharged
23
or released. According to the determination of the court upon the hearing,
24
the committed person shall thereupon be discharged or released on such con-
25
ditions as the court determines to be necessary, or shall be recommitted to
26
the custody of the director of the department of health and welfare, subject
27
to discharge or release only in accordance with the procedure prescribed
28
above for a first hearing.
29
(4) If, within five (5) years after the conditional release of a com-
30
mitted person, the court shall determine, after hearing evidence, that the
31
conditions of release have not been fulfilled and that for the safety of such
32
person or for the safety of others his conditional release should be revoked,
33
the court shall forthwith order him to be recommitted to the custody of the
34
director of the department of health and welfare subject to discharge or
35
release only in accordance with the procedure prescribed above for a first
36
hearing.
37
(5) A committed person may make application for his discharge or re-
38
lease to the court by which he was committed, and the procedure to be followed
39
upon such application shall be the same as that prescribed above in the case
40
of an application by the director of the department of health and welfare.
41
However, no such application by a committed person need be considered until
42
he has been confined for a period of not less than six (6) months from the date
43
of the order of commitment and if the determination of the court be adverse to
44
the application, such person shall not be permitted to file a further appli-
45
cation until one (1) year has elapsed from the date of any preceding hearing
46
on an application for his release or discharge.
47
(6) If a defendant escapes from custody during his confinement, the
48
director shall immediately notify the court from which committed, the pros-
49
50
court shall forthwith issue an order authorizing any health officer, peace
25
1
officer, or the director of the institution from which the defendant es-
2
caped, to take the defendant into custody and immediately return him to his
3
place of confinement.
4
5
amended to read as follows:
6
66-348. DISCLOSURE OF INFORMATION. All certificates, applications,
7
records, and reports made for the purpose of this act and directly or in-
8
directly identifying a patient or former patient or an individual whose
9
involuntary assessment, detention or commitment is being sought under this
10
act shall be kept subject to disclosure according to chapter 1, title 74,
11
12
(1) If the individual identified, his attorney in fact for mental
13
behavioral health care, or his legal guardian, if any, shall consent; or
14
(2) If disclosure may be necessary to carry out any of the provisions of
15
this act; or
16
(3) If a court directs upon its determination that disclosure is neces-
17
sary and that failure to make disclosure would be contrary to the public in-
18
terest.
19
20
amended to read as follows:
21
66-352. MONEY FOUND ON MENTALLY ILL PERSONS WITH A MENTAL DISORDER OR
22
A SUBSTANCE-RELATED DISORDER -- DISPOSITION. Any moneys, or other things of
23
value, found on the person of a mentally ill person with a mental disorder or
24
a substance-related disorder at the time of proceedings for involuntary com-
25
mitment must be certified to by the judge and sent with such person to the fa-
26
cility, there to be delivered to the director of the facility who shall hold
27
28
money received by or for a patient, voluntarily or involuntarily committed,
29
while at the facility shall be placed in trust as provided in said chapter 5,
30
31
32
amended to read as follows:
33
66-354. MENTALLY ILL PERSON WITH A MENTAL DISORDER OR A SUBSTANCE-RE-
34
LATED DISORDER WITH ASSETS SUFFICIENT TO PAY EXPENSES -- LIABILITY OF RELA-
35
TIVES. (a) When a mentally ill person with a mental disorder or a substance-
36
related disorder has been admitted to a state facility voluntarily or invol-
37
untarily, the director of the facility may cause an inquiry to be made as to
38
the financial circumstances of such person and of the relatives of such per-
39
son legally liable for his or her support, and if it is found that such person
40
or said relatives, legally liable for the support of the patient, are able
41
to pay the expenses for commitment proceedings and the charges for the care
42
and treatment of the patient in the facility, in whole or in part, it shall
43
be the duty of the director of the facility to collect such expenses and such
44
charges, and, if necessary, to institute in the name of the state, a civil
45
suit against the person or persons liable therefor.
26
1
(b) The following relatives shall be bound by law to provide for the ex-
2
penses and charges for the commitment, care and treatment of such mentally
3
ill person with a mental disorder or a substance-related disorder referred
4
to in this act: husband for the wife, and the wife for the husband; the parent
5
for his or her minor child or minor children, and the children for their par-
6
ents.
7
8
amended to read as follows:
9
66-355. APPOINTMENT OF GUARDIAN -- INCOMPETENCY OF MENTALLY ILL PER-
10
SON WITH A MENTAL DISORDER OR A SUBSTANCE-RELATED DISORDER REQUIRES SEPARATE
11
PROCEEDINGS -- LIABILITY FOR CARE AND TREATMENT COSTS. The incompetency of
12
a mentally ill person with a mental disorder or a substance-related disorder
13
shall be determined in the same manner that incompetency is determined in any
14
other person and shall be a separate judicial proceeding. Any guardian ap-
15
pointed in the case of a mentally ill incompetent person, with a mental dis-
16
order or a substance-related disorder is subject to all the provisions of
17
18
Whenever a mentally ill person with a mental disorder or a substance-related
19
disorder is receiving care and treatment in a facility in the event that in-
20
competency is adjudicated and a guardian appointed, the court on determin-
21
ing the incompetency must inquire into the ability of the mentally ill per-
22
son with a mental disorder or a substance-related disorder to pay for his or
23
her expenses which arise in connection with his or her care and treatment, if
24
any, transportation to the facility, court costs for incompetency proceed-
25
ings, and for the care and treatment for such person for such time as he re-
26
mains in such facility, and when there are sufficient assets in the hands of
27
the guardian, the court may order a sale of property or such part thereof as
28
may be necessary, and from the proceeds of such sale the guardian must pay for
29
all expenses and reasonable charges for the patient's care and treatment, or
30
such part as it is possible to pay, to the director of the facility in which
31
said mentally ill person with a mental disorder or a substance-related dis-
32
order is a patient.