HB 2169 Text

Introduced Version House Bill 2169 History

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hb2169 intr H. B. 2169

(By Delegate Kominar)
[Introduced February 10, 2005; referred to the
Committee on the Judiciary.]

A BILL to repeal §27-6A-9 of the Code of West Virginia, 1931, as amended; to amend and reenact §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4 and §27-6A-5; and to amend said code by adding thereto three new sections, designated §27-6A-10, §27-6A-11 and §27-6A-12, all relating to repealing the development of conditional release plans; amending provisions for the determination of competency of defendant to stand trial and of criminal responsibility; examination; commitment; hearing on competency to stand trial; findings; court jurisdiction over persons found not guilty by reason of mental illness, mental retardation or addiction; release from jurisdiction of the court; discharge; periodic review of person found incompetent to stand trial; and adding provisions for forensic evaluations and evaluators; payment to forensic evaluators; uniform forensic court orders; and promulgation of rules.

Be it enacted by the Legislature of West Virginia:
That §27-6A-9 of the Code of West Virginia, 1931, as amended, be repealed; that §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4 and §27-6A-5 of said code be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §27-6A-10, §27-6A-11 and §27-6A-12, all to read as follows:
ARTICLE 6A. COMMITMENT OF PERSONS CHARGED OR CONVICTED OF A CRIME.

§27-6A-1. Determination of competency of defendant to stand trial and of criminal responsibility; examination; commitment.

(a) Whenever a court of record, or in the instance of a defendant charged with public intoxication a magistrate or other judicial officer, believes that a defendant in a felony case or a defendant in a misdemeanor case in which an indictment has been returned, or a warrant or summons issued, may be incompetent to stand trial or is not criminally responsible by reason of mental illness or mental retardation, ~~or addiction~~ it may at any stage of the proceedings after the return of an indictment or the issuance of a warrant or summons against the defendant, order ~~an examination~~ a forensic evaluation of such defendant to be conducted by one or more psychiatrists, or a psychiatrist and a psychologist, all of whom shall be forensic evaluators qualified in accordance with section ten of this article, or in the instance of an individual charged with public intoxication, an alcoholism counselor: Provided, That the forensic evaluation shall not be conducted at an inpatient mental health facility: Provided, however, That if a court of record or other judicial officer orders both a competency and criminal responsibility evaluation, the competency evaluation shall be performed first, and if the forensic evaluator determines that a defendant is incompetent to stand trial, no criminal responsibility evaluation should be completed without further order of the court: Provided further, That with the exception of subsections (a) and ~~(g)~~ (f) of this section, no other subsection in this section nor any other provision of this article shall apply to individuals charged with public intoxication pursuant to section nine, article six, chapter sixty of this code: And provided further, That a defendant shall not be determined to be incompetent to stand trial on the basis of addiction only.
(b) After the examination described in subsection (a) of this section, the court of record may order that the person be admitted to a mental health facility designated by the director of health for a period not to exceed twenty days for observation and further examination if the court has reason to believe that such further observation and examination are necessary in order to determine whether mental illness, mental retardation or addiction have so affected a person that he is not competent to stand trial or not criminally responsible for the crime or crimes with which he has been charged. When the court determines that there are conflicting opinions of forensic evaluators, or the defendant has been uncooperative during the forensic evaluation ordered pursuant to subsection (a) of this section or there has been an inadequate forensic evaluation performed pursuant to subsection (a) of this section, and the court has reason to believe that an additional forensic evaluation and observation are necessary in order to determine if a person is competent to stand trial or if a person is not criminally responsible for his or her acts, the court may order the defendant be admitted to a mental health facility designated by the department for a period not to exceed twenty days and evaluated by a forensic evaluator or evaluators designated by the department. If, before the expiration of such twenty-day period, ~~the examining physician~~ a forensic evaluator believes that observation for more than twenty days is necessary, he or she shall make a written request to the court of record for an extension of the twenty-day period. ~~specifying~~ The request shall specify the reason or reasons for which such further observation is necessary. Upon the receipt of such request, the court of record may by order extend ~~said~~ the observation period, but in no event shall the period exceed forty days from the date of the initial court order of observation. At the conclusion of the observation period, the court shall enter a disposition order, and the sheriff of the county where the defendant was charged shall immediately take custody of the defendant for transportation as ordered by the court. The court may order the continuation of a treatment plan provided by the mental health facility, including medication.
(c) At the conclusion of each examination or observation period provided for herein, the examining psychiatrists, or psychiatrist and psychologist, shall forthwith give to the court of record a written signed report of their findings on the issue of competence to stand trial or criminal responsibility. Such report shall contain an opinion, supported by clinical findings, as to whether the defendant is in need of care and treatment. The forensic evaluator or evaluators shall, within ten business days, present to the court of record a written, signed report of their findings on the issue of competence to stand trial. The report shall contain an opinion, supported by clinical findings, as to whether the defendant is or is not competent to stand trial. If the defendant is determined to be incompetent to stand trial, the report shall state whether the defendant is likely to be restored to competency within the next six months, whether the defendant is in need of inpatient care and treatment, the level of treatment needed, and whether defendant is currently dangerous to others and the risk factors involved. The court may extend the ten-day period for filing the report if the forensic evaluator or evaluators show good cause to extend the period, but in no event shall the period exceed thirty days.
(d) Within five days after the receipt of the report on the issue of competency to stand trial, ~~or if no observation pursuant to subsection (b) of this section has been ordered, within five days after the report~~s ~~on said issue following an examination under subsection (a) of this section,~~ the court of record shall make a preliminary finding on the issue of whether the defendant is or is not competent for trial, and, if incompetent, whether there is a substantial likelihood that the defendant could regain competency within the next six months, whether the defendant is a danger to others and whether the crime charged involves an act of violence. A finding of incompetence for trial shall require proof by a preponderance of the evidence. Notice of such findings shall be sent to the prosecuting attorney, the defendant and his or her counsel, and if the defendant is ordered to a mental health facility, to that facility. If the court of record orders or if the defendant or his or her counsel on his or her behalf within ~~a reasonable time~~ fifteen days requests a hearing on such findings, a hearing in accordance with section two of this article shall be held by the court of record within ten days of the date such finding or such request has been made. If no hearing order or request is filed within fifteen days, the preliminary findings of the court become final. If the court finds the defendant to be competent to stand trial, the defendant shall remain in the custody of the sheriff for transportation in accordance with the disposition of the court. The court may order the continuation of a treatment plan provided by the mental health facility, including medication.
(e) After a conviction and prior to sentencing, the court of record may order a psychiatric or other clinical examination and, after such examination, may further order a period of observation in a mental health facility designated by the director of health. Such a period of observation or examination shall not exceed forty days.
If after hearing conducted pursuant to the procedures prescribed in subsection (c), section four, article five of this chapter, the court of record makes the findings specified insection four, article five of this chapter or finds that the convicted individual would benefit from treatment in a mental health facility, the court may enter an order of commitment in accord with section four, article five for treatment in a mental health facility designated by the director of health.
~~(f)~~ (e) In like manner, in accordance with procedures set forth in subsections (a), (b) and (c) of this section, a juvenile court may order a psychiatric examination or a period of observation for an alleged delinquent or neglected juvenile in a mental health facility to aid the court in its disposition. The period of observation shall not exceed forty days.
~~(g)~~ (f) ~~On and after midnight on the last day of June, one thousand nine hundred eighty-three,~~ If a person charged with public intoxication is incapacitated at the time a warrant or summons is issued, the court, magistrate or other judicial officer may as provided by article six, chapter sixty of this code, order the individual detained in the nearest mental health facility providing appropriate care, or other detention facility as defined in section fourteen, article one of this chapter, to ~~determine~~ evaluate the individual's ~~competence to stand trial and~~ criminal responsibility and require the preparation and submission by that facility of a report which shall in addition to ~~determining~~ evaluating the individual's ~~competence and~~ criminal responsibility shall also describe any suggested or proposed methods of care or treatment which may be appropriate. Such order shall stipulate the return of the individual to the court, magistrate or other judicial officer or his or her release if bond has been posted or a summons issued in lieu of a warrant, when the individual is no longer incapacitated. But in no case may the individual be kept longer than forty-eight hours, unless during the forty-eight hours, civil commitment proceedings pursuant to article five of this chapter are initiated by qualified personnel at the mental health facility or other facility in which the individual is detained and detention is ordered pursuant to article five of this chapter: Provided, That whenever the director of the facility initiates civil proceedings within forty-eight hours, he or she shall immediately notify the judicial officer who ordered the individual detained that such proceedings have commenced: Provided, however, That the judicial officer may then modify his or her order and may continue the criminal proceedings in his or her court until a diagnosis of alcoholism has been made: Provided further, That once a diagnosis is made, the judicial officer shall find the individual not guilty by reason of addiction as provided by section nine, article six, chapter sixty of the code and shall immediately initiate civil commitment proceedings unless such proceedings have already begun and are proceeding:
(1) If at any time during the forty-eight hours the individual requires acute medical care or because of overtly dangerous behavior needs security beyond the capability of the mental health facility where he or she is being detained, the sheriff of the county in which the facility is located shall at the request of the facility director transport the individual to a more appropriate facility such as a general hospital, or a state hospital or detention facility selected by said director.
(2) No law-enforcement officer, physician, mobile intensive care paramedic, emergency medical service attendant or staff member or employee of any mental health facility, hospital or detention facility may be held criminally liable for carrying out any provision set forth in this subsection or any procedure specified therein or be held civilly liable in damages to an incapacitated person because of carrying out any provision set forth in this subsection or any procedure specified herein for dealing with an individual charged with public intoxication unless for gross negligence or willful or wanton injury.
(3) Any person who is given transportation to or from, or who is examined or treated at, a mental health facility, hospital or detention facility in accordance with, and because of, the provisions of this section, whether such person was incapacitated or not or whether he or she gave his or her consent or not, shall be liable in implied contract to the person who, or mental health facility, hospital or detention facility or other appropriate agency which, provided such transportation, examination or treatment, for the reasonable cost thereof. No person may be denied such services because of inability or failure to pay such costs nor shall any effort be made to obtain prepayment of such costs or any portion thereof.
§27-6A-2. Hearing on competency to stand trial; findings.
(a) At a hearing to determine a defendant's competency to stand trial, the defendant shall be present and he or she shall have the right to be represented by counsel and introduce evidence and cross-examine witnesses. The defendant shall be afforded timely and adequate notice of the issues at the hearing and shall have access to a summary of the ~~medical~~ forensic evidence to be presented by the State. The defendant shall have the right to ~~an examination by an independent expert of his or her choice and testimony from such expert as a medical witness on his or her behalf~~ present evidence by a forensic evaluator of his or her choice and at his or her expense. All rights generally afforded a defendant in criminal proceedings shall be afforded to a defendant in such competency proceedings except trial by jury.
(b) At the termination of such hearing the court of record with due consideration to the forensic evaluations conducted pursuant to sections one and two of this article, shall make a finding of fact upon a preponderance of the evidence as to the defendant's competency to stand trial based on whether or not the defendant is capable of participating substantially in his or her defense and understanding the nature and consequences of a criminal trial. If the defendant is found competent, the court of record shall forthwith proceed with the criminal proceedings, and the sheriff shall immediately take custody of the defendant for disposition pursuant to the court's order. The court may order the continuation of a treatment plan provided by the mental health facility, including medication. If the defendant is found incompetent to stand trial, the court of record shall upon the evidence make further findings as to whether or not there is a substantial likelihood that the defendant will attain competency within the next ensuing six months, ~~and if the court of record so finds, the defendant may be committed to a mental health facility for an improvement period not to exceed six months~~ whether the crime involves an act of violence and whether the defendant is a danger to others. A finding of incompetence to stand trial shall be based on the forensic evaluation report or reports and shall require proof by a preponderance of the evidence. Notice of such findings shall be sent to the prosecuting attorney, the defendant and his or her counsel and, if the defendant is ordered committed to a mental health facility of the department pursuant to section two of this article, to the facility. If requested by the chief medical officer of the mental health facility on the grounds that additional time is necessary for the defendant to attain competency, the court of record may, prior to the termination of the six-month period, extend the period for an additional three months. Within ten days of the termination of such period, the court of record shall ascertain by hearing in accordance with subsection (a) of this section whether or not the defendant has attained competency to stand trial. If the court finds that the defendant is incompetent to stand trial but, with treatment, is substantially likely to regain competency within the next six months, the defendant may be committed to a mental health facility for a competency evaluation and, if appropriate, improvement period. The term of this commitment shall not exceed six months from the time of entry into the facility. If requested by the chief medical officer of the mental health facility on the grounds that additional time is necessary for the defendant to attain competency, the court of record may, prior to the termination of the six-month period, extend the period for an additional three months.
(c) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does not involve an act of violence against a person and is found to be incompetent to stand trial with no substantial likelihood of obtaining competency, or if after such improvement period the defendant is found to be incompetent to stand trial, the criminal charges shall be dismissed. The dismissal order may be stayed for ten days to allow civil commitment proceedings to be instituted pursuant to article five of this chapter.
(d) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person and upon hearing: (1) The defendant is found initially to be incompetent to stand trial with no substantial likelihood of obtaining competency and is found not to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is found to be incompetent to stand trial and is found not to be a danger to self or others, then the court shall maintain jurisdiction over the defendant. The department, the appropriate community-based behavioral health provider and other appropriate state agencies shall provide to the court treatment options for the defendant, but under no circumstances shall the defendant remain committed to or in an inpatient mental health facility.
(e) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person and, upon hearing: (1) The defendant is found initially to be incompetent to stand trial with no substantial likelihood of obtaining competency and is found to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is found to be incompetent to stand trial and is found to be a danger to self or others, then the court shall maintain jurisdiction over the defendant and shall commit the defendant to a mental health facility ~~under the authority of the department of health and human resources~~ which is the least restrictive setting appropriate to treat defendant and protect the public including a mental health facility designated by the department. The court shall state with specificity the date the commitment period will terminate. The defendant's supervising physician or psychologist shall cause the defendant's competency to stand trial and dangerousness to self or others to be reviewed every six months during the period of his or her inpatient hospitalization.
(f) If the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person, upon notice from the medical director of the mental health facility that the defendant no longer constitutes a danger to self or others along with an alternative disposition plan which sets forth in detail a treatment plan for the defendant designed to allow his or her release without endangering the public, the court shall promptly conduct a hearing. The clerk shall give notice of the hearing to the prosecuting attorney and the victim or next of kin of the victim of the offense for which the person was committed. The burden shall be on the victim or next of kin of the victim to keep the court apprised of that person's current mailing address.
After hearing, the court may order the release from hospitalization of a defendant found incompetent to stand trial due to mental illness, addiction or retardation prior to the expiration of the court's jurisdiction only when the court finds that the defendant is no longer a danger to self or others: Provided, That a defendant may be released from inpatient hospitalization by the court when the defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment only if it can be determined by clear and convincing evidence that with continued outpatient therapy or other mode of outpatient treatment, the defendant's mental illness does not make him or her a danger to self or others. When a defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment, the court in its discretion, may make the continuance of the medication or other mode of treatment a condition of the defendant's release. Upon notice that a defendant who is released on the condition that he or she continues medication or other mode of treatment does not continue his or her medication or other mode of treatment, the prosecuting attorney shall, by motion, cause the court to reconsider the defendant's release. Upon a showing that defendant is in violation of the conditions of his or her release, the court shall recommit the defendant to the mental health facility.
(g) The prosecuting attorney shall, by motion, cause the competency to stand trial of a defendant subject to the court's jurisdiction pursuant to subsection (d) of this section or released pursuant to subsection (f) of this section to be determined at least every six months while the defendant remains under the jurisdiction of the court. If the chief medical officer of the mental health facility finds that the defendant is no longer dangerous or no longer mentally ill, the court should hold a hearing pursuant to section two of this article. A defendant placed under the jurisdiction of the court pursuant to the provisions of subsection (d) or (e) of this section shall remain under the court's jurisdiction until the expiration of the maximum possible sentence the defendant could have received if convicted unless the defendant regains competency and the criminal charges reach resolution or the court, upon motion of the prosecuting attorney, dismisses the indictment or charge.

§27-6A-3. Court jurisdiction over persons found not guilty by reason of mental illness, mental retardation or addiction.

(a) After ~~the entry of~~ consideration of the forensic evaluations of the defendant, and a finding by clear and convincing evidence of a judgment of not guilty by reason of mental illness, mental retardation or addiction, and a finding that the defendant is a danger to self or others, ~~the court of record~~ the court shall determine on the record the offense of which the person otherwise would have been convicted, and the maximum sentence he or she could have received. The court shall commit such defendant to a mental health facility ~~under the jurisdiction of the department of health,~~ that is the least restrictive environment for the defendant that will allow for the protection and safety of the public, with the court retaining jurisdiction over the defendant for the maximum sentence period.
(b) If the court finds that the defendant is criminally responsible, the sheriff shall take custody of the defendant for transportation pursuant to the court's order. The court may order the continuation of a treatment plan provided by the mental health facility, including medication.
(c) If the chief medical officer of the mental health facility makes a determination that the defendant is no longer mentally ill or is no longer a danger to self or others, the court of record shall hold a hearing, pursuant to section two or three of this article, within ten days of receipt of such notification from the facility.
~~(b)~~ (d) If the defendant is ~~released~~ discharged from an inpatient mental health facility while under the jurisdiction of the court, the court may impose such conditions as are necessary to protect the safety of the public.
§27-6A-4. Release from jurisdiction of the court; discharge.
(a) No later than thirty days prior to the release of a defendant because of the expiration of the court's jurisdiction, if the defendant's supervising physician or psychologist believes that the defendant's mental illness ~~or mental retardation~~ or addiction causes the defendant to be dangerous to self or others, the supervising physician or psychologist shall notify the prosecuting attorney in the county of the court having jurisdiction of such opinion and the basis therefor. Following this notification, the prosecuting attorney shall file a civil commitment application against the defendant, pursuant to article five of this chapter.
(b) ~~Except as provided in subsection (g), section two of this article,~~ The court may discharge a mentally ill or addicted defendant from the court's jurisdiction prior to the expiration of the period specified in this section only when the court finds that the person is no longer mentally ill or addicted ~~and~~ or that the person is no longer a danger to self or others: Provided, That a defendant may not be released from the court's jurisdiction when the defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment only if it can be determined by clear and convincing evidence that with continued outpatient therapy or other mode of outpatient treatment, the defendant's mental illness does not make him or her a danger to self or others. When a defendant's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment, the court in its discretion, may make the continuance of the medication or other mode of treatment a condition of the defendant's release. Upon notice that a defendant who is released on the condition that he or she continues medication or other mode of treatment does not continue his or her medication or other mode of treatment, the prosecuting attorney shall, by motion, cause the court to reconsider the defendant's release. Upon a showing that defendant is in violation of the conditions of his or her release, the court shall reinstate its jurisdiction over the defendant. The court may discharge a mentally retarded defendant from the court's jurisdiction prior to the expiration of the period specified in this section only when the court finds that the person is no longer a danger to self or others.
(c) Those persons committed under the provisions of this article may be released or discharged from the inpatient mental health facility only upon entry of an order from the court of record which committed the defendant, finding that the defendant will not be a danger to self or others if so released, based upon the evidence admitted at the hearing.
(d) The court shall promptly conduct a hearing after receipt of the physician's or psychologist's notification referred to in subsection (a) of this section. The clerk shall notify the prosecuting attorney and the victim or next of kin of the victim of the offense for which the defendant was committed of the hearing. The burden shall be on the victim or next of kin of the victim to keep the court apprised of the defendant's current mailing address.
(e) No later than twenty days prior to the release of a defendant because of the expiration of an order of commitment or because of the expiration of the court's jurisdiction, the mental health facility shall report to the court of record the defendant's current mental status, including whether the defendant remains mentally ill and whether the defendant is currently a danger to others. If such a report is made by the medical director of the mental health facility, the mental health facility shall also submit a discharge plan which sets forth a treatment plan for the defendant designed to allow his or her discharge without endangering the public.
(f) At the termination of such hearing the court of record shall, with consideration given to the findings of the mental health facility, within ten days of the date of the hearing or prior to the expiration of its jurisdiction or a commitment order, make a finding and cause an order to be entered with regard to the defendant's discharge from inpatient commitment or hospitalization.
(g) The court may consider releasing an individual from its jurisdiction at the same time and based upon the same procedures that it considers a defendant's discharge from hospitalization.
§27-6A-5. Periodic review of person found incompetent to stand trial.
The periodic review of a person who has been found incompetent to stand trial shall include a clinical opinion with regard to the person's competence to stand trial, which opinion shall be made a part of the patient's medical record. If any person previously found incompetent to stand trial is later determined to be competent, the Director of Mental Health shall notify the court of record, which shall promptly hold a hearing on the person's competency to stand trial. The mental health facility's representatives shall be given the opportunity to testify, including testimony by telephonic or video conferencing technology, at this hearing. Any person found incompetent to stand trial may at any time petition the court of record for a hearing on his or her competency. Whenever a hearing is held and the court of record finds that the person is competent to stand trial, his or her commitment, if any, to a mental health facility shall be terminated and the court of record shall order his or her return to the custody of the sheriff for trial. However, if the person requests continued care and treatment during the pendency of the criminal proceedings against him or her and the mental health facility agrees to provide such care and treatment, the court of record may order the further hospitalization of such person.
§27-6A-10. Forensic evaluations and evaluators.
All forensic evaluations shall be conducted by a qualified forensic evaluator. Such forensic evaluator shall be a psychiatrist or a psychologist and board certified in forensics or qualified by specialized training and experience to perform forensic evaluations as determined under rules promulgated by the Secretary of the Department of Health and Human Resources. Such evaluator shall not be the individual's treating psychologist or psychiatrist. The individual shall have the right to obtain and pay for his or her own evaluation that is not performed by a forensic evaluator qualified by the Department.
§27-6A-11. Payment to forensic evaluators.
The Department shall establish and amend from time to time as it deems appropriate a schedule of the maximum reasonable amounts to be paid to forensic evaluators. The Department shall reimburse court-ordered forensic evaluators who are qualified to perform forensic evaluations pursuant to section ten of this article, for which there is an appropriate court order requesting the forensic evaluation and when the evaluation report reflects the findings required by the pertinent sections of this article. The forensic evaluator shall attach a copy of the court order requesting the forensic evaluation and the evaluation report to each invoice. The Department shall make available to the court a current, published listing of certified forensic evaluators for competency determinations and for criminal responsibility evaluations.
§27-6A-12. Uniform forensic court orders; promulgation of rules.
The Department shall make available to the court the commitment and discharge uniform court orders prepared pursuant to section four, article two of this chapter. The Secretary of the Department of Health and Human Resources may promulgate rules to carry out the provisions of this article.

NOTE: The purpose of this bill is to provide for the certification of persons who perform evaluations to determine if defendants charged with crimes are competent to stand trial or are not guilty by reason of mental illness. The bill also makes improvements to the process for mentally ill persons in criminal proceedings.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§27-6A-10, 11 and 12 are new; therefore, strike-throughs and underscoring have been omitted.