Adoped by House 3-8-07
SB117 H JUD AM 3-7 #1
The Committee on the Judiciary moves to amend the bill on page
two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
That §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4, §27-6A-5,
§27-6A-6, §27-6A-8 and §27-6A-9 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §27-6A-10 and §27-
6A-11, all to read as follows:
ARTICLE 6A. COMPETENCY AND CRIMINAL RESPONSIBILITY OF PERSONS
CHARGED OR CONVICTED OF A CRIME.
§27-6A-1. Qualified forensic evaluator; qualified forensic
psychiatrist; qualified forensic psychologist;
definitions and requirements.
(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, 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
of such defendant to be conducted by one or more psychiatrists, or a psychiatrist and a psychologist, or in the instance of an
individual charged with public intoxication, an alcoholism
counselor: Provided, That with the exception of subsections (a)
and (g) 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.
(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. If, before the expiration of such twenty-day period,
the examining physician believes that observation for more than
twenty days is necessary, he shall make a written request to the
court of record for an extension of the twenty- day period
specifying 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 observation period, but in no event shall
the period exceed forty days from the date of the initial court
order of observation.
(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.
(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 on said issue following an examination under
subsection (a) of this section, the court of record shall make a
finding on the issue of whether the defendant is competent for
trial. 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 counsel.
If the court of record orders or if the defendant or his counsel on
his behalf within a reasonable time 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.
(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 in
section 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) 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) 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 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 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 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 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
order and may continue the criminal proceedings in his 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 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 gave his 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.
(a) For purposes of this article:
(1) A "qualified forensic psychiatrist" is:
(A) A psychiatrist licensed under the laws in this state to
practice medicine who has completed postgraduate education in
psychiatry in a program accredited by the Accreditation Council of
Graduate Medical Education; and
(B) Board eligible or board certified in forensic psychiatry
by the American Board of Psychiatry and Neurology or actively
enrolled in good standing in a West Virginia training program
accredited by the Accreditation Council of Graduate Medical
Education to make the evaluator eligible for board certification by
the American Board of Psychiatry and Neurology in forensic
psychiatry or have two years of experience in completing
court-ordered forensic criminal evaluations, including having been
qualified as an expert witness by a West Virginia circuit court.
(2) A "qualified forensic psychologist" is:
(A) A licensed psychologist licensed under the laws of this
state to practice psychology; and
(B) Board eligible or board certified in forensic psychology
by the American Board of Professional Psychology or actively
enrolled in good standing in a West Virginia training program
approved by the American Board of Forensic Psychology to make the
evaluator eligible for board certification in forensic psychology
or has, at least two years of experience in performing court
ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.
(3) A "qualified forensic evaluator" is either a qualified
forensic psychiatrist or a qualified forensic psychologist as
defined in this section.
(4) "Department" means the Department of Health and Human
Resources.
(b) No qualified forensic evaluator may perform a forensic
evaluation on an individual under this chapter if the qualified
forensic evaluator has been the individual's treating psychologist
or psychiatrist within one year prior to any evaluation order.
§27-6A-2. Competency of defendant to stand trial; cause for
appointment of qualified forensic evaluator; written
report; observation period.
(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 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. 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
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. 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. 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.
(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.
(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. 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 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. 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.
(a) Whenever a court of record has reasonable cause to believe
that a defendant in which an indictment has been returned, or a
warrant or summons issued, may be incompetent to stand trial it
shall, sua sponte or upon motion filed by the state or by or on
behalf of the defendant, at any stage of the proceedings order a
forensic evaluation of the defendant's competency to stand trial to
be conducted by one or more qualified forensic psychiatrists, or
one or more qualified forensic psychologists. If a court of record
or other judicial officer orders both a competency evaluation and
a criminal responsibility or diminished capacity evaluation, the
competency evaluation shall be performed first, and if a qualified
forensic evaluator is of the opinion that a defendant is not
competent to stand trial, no criminal responsibility or diminished
capacity evaluation may be conducted without further order of the
court. The initial forensic evaluation may not be conducted at a
state inpatient mental health facility unless the defendant resides
there.
(b) The court shall require the party making the motion for
the evaluation, and other parties as the court considers
appropriate, to provide to the qualified forensic evaluator
appointed under subsection (a) of this section any information
relevant to the evaluations within ten business days of its
evaluation order. The information shall include, but not be
limited to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including statements by the defendant made to the police, investigative
reports and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical or
social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluations are to include a diminished capacity
assessment, the nature of any lesser included criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange
for the prompt completion of any court ordered evaluation which may
include record review and defendant interview and shall, within ten
business days of the date of the completion of any evaluation,
provide to the court of record a written, signed report of his or
her opinion on the issue of competency to stand trial. If it is
the qualified forensic evaluator's opinion that the defendant is
not competent to stand trial, the report shall state whether the
defendant is substantially likely to attain competency within the
next three months and, in order to attain competency to stand
trial, whether the defendant requires inpatient management in a
mental health facility. The court may extend the ten-day period
for filing the report if a qualified forensic evaluator shows good
cause to extend the period, but in no event may the period exceed
thirty days. If there are no objections by the state or defense
counsel, the court may, by order, dismiss the requirement for a
written report if the qualified forensic evaluator's opinion may
otherwise be made known to the court and interested parties.
(d) If the court determines that the defendant has been uncooperative during the forensic evaluation ordered pursuant to
subsection (a) of this section or there have been one or more
inadequate or conflicting forensic evaluations performed pursuant
to subsection (a) of this section and the court has reason to
believe that an observation period is necessary in order to
determine if a person is competent to stand trial, the court may
order the defendant be committed to a mental health facility
designated by the department for a period not to exceed fifteen
days and an additional evaluation be conducted in accordance with
subsection (a) of this section by one or more qualified forensic
psychiatrists, or a qualified forensic psychiatrist and a qualified
forensic psychologist. The court shall order that at the
conclusion of the fifteen day observation period the sheriff of the
county where the defendant was charged shall take immediate custody
of the defendant for transportation and disposition as ordered by
the court.
(e) A mental health facility not operated by the state is not
obligated to admit and treat a defendant under this section.
§27-6A-3. Competency of defendant to stand trial determination;
preliminary finding; hearing; evidence; disposition.
(a) After the entry of a judgment of not guilty by reason of
mental illness, mental retardation or addiction, the court of
record shall determine on the record the offense of which the
person otherwise would have been convicted, and the maximum
sentence he could have received. The court shall commit such
defendant to a mental health facility under the jurisdiction of the department of health, with the court retaining jurisdiction over
the defendant for the maximum sentence period.
(b) If the defendant is released 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.
(a) Within five days of the receipt of the qualified forensic
evaluator's report and opinion on the issue of competency to stand
trial, the court of record shall make a preliminary finding on the
issue of whether the defendant is competent to stand trial and if
not competent whether there is a substantial likelihood that the
defendant will attain competency within the next three months. If
the court of record orders, or if the state or defendant or
defendant's counsel within twenty days of receipt of the
preliminary findings requests, a hearing, then a hearing shall be
held by the court of record within fifteen days of the date of the
preliminary finding, absent good cause being shown for a
continuance. If a hearing order or request is not filed within
twenty days, the preliminary findings of the court become the final
order.
(b) At a hearing to determine a defendant's competency to
stand trial the defendant has the right to be present and he or she
has 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 all forensic evaluator's opinions. All rights generally afforded a defendant in criminal proceedings shall be
afforded to a defendant in the competency proceedings, except trial
by jury.
(c) The court of record pursuant to a preliminary finding or
hearing on the issue of a defendant's competency to stand trial and
with due consideration of any forensic evaluation conducted
pursuant to sections two and three 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 has sufficient present ability to consult with his or her
lawyer with a reasonable degree of rational understanding and
whether he or she has a rational as well as a factual understanding
of the proceedings against him or her.
(d) If at any point in the proceedings the defendant is found
competent to stand trial, the court of record shall forthwith
proceed with the criminal proceedings.
(e) If at any point in the proceedings the defendant is found
not competent to stand trial, the court of record shall at the same
hearing, 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 three months.
(f) If at any point in the proceedings the defendant is found
not competent to stand trial and is found substantially likely to
attain competency, the court of record shall in the same order,
upon the evidence, make further findings as to whether the
defendant requires, in order to attain competency, inpatient management in a mental health facility. If inpatient management is
required, the court shall order the defendant be committed to an
inpatient mental health facility designated by the department to
attain competency to stand trial and for a competency evaluation.
The term of this commitment may not exceed three months from the
time of entry into the facility. However, upon request by the
chief medical officer of the mental health facility and based on
the requirement for additional management to attain competency to
stand trial, the court of record may, prior to the termination of
the three-month period, extend the period up to nine months from
entry into the facility. A forensic evaluation of competency to
stand trial shall be conducted by a qualified forensic evaluator
and a report rendered to the court, in like manner as subsections
(a) and (c), section two of this article every three months until
the court determines the defendant is not competent to stand trial
and is not substantially likely to attain competency.
(g) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency and if the defendant has been indicted or
charged with a misdemeanor or felony which does not involve an act
of violence against a person, the criminal charges shall be
dismissed. The dismissal order may, however, be stayed for twenty
days to allow civil commitment proceedings to be instituted by the
prosecutor pursuant to article five of this chapter. The defendant
shall be immediately released from any inpatient facility unless
civilly committed.
(h) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency, and 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, then the
court shall determine on the record the offense or offenses of
which the person otherwise would have been convicted, and the
maximum sentence he or she could have received. A defendant shall
remain under the court's jurisdiction until the expiration of the
maximum sentence unless the defendant attains competency to stand
trial and the criminal charges reach resolution or the court
dismisses the indictment or charge. The court shall order the
defendant be committed to a mental health facility designated by
the department that is the least restrictive environment to manage
the defendant and that will allow for the protection of the public.
Notice of the maximum sentence period with an end date shall be
provided to the mental health facility. The court shall order a
qualified forensic evaluator to conduct a dangerousness evaluation
to include dangerousness risk factors to be completed within thirty
days of admission to the mental health facility and a report
rendered to the court within ten business days of the completion of
the evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction shall continue an
additional ten days beyond any expiration to allow civil commitment proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(i) If the defendant has been ordered to a mental health
facility pursuant to subsection (h) of this section and the court
receives notice from the medical director or other responsible
official of the mental health facility that the defendant no longer
constitutes a significant danger to self or others, the court shall
conduct a hearing within thirty days to consider evidence, with due
consideration of the qualified forensic evaluator's dangerousness
report or clinical summary report to determine if the defendant
shall be released to a less restrictive environment. The court may
order the release of the defendant only when the court finds that
the defendant is no longer a significant danger to self or others.
When a defendant's dangerousness risk factors associated with
mental illness are reduced or eliminated as a result of any
treatment, the court, in its discretion, may make the continuance
of appropriate treatment, including medications, a condition of the
defendant's release from inpatient hospitalization. The court
shall maintain jurisdiction of the defendant in accordance with
subsection (h) of this section. Upon notice that a defendant
ordered to a mental health facility pursuant to subsection (h) of
this section who is released on the condition that he or she
continues treatment does not continue his or her 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 reorder the defendant to a mental health facility under the
authority of the department which is the least restrictive setting
that will allow for the protection of the public.
(j) The prosecuting attorney may, by motion, and in due
consideration of any chief medical officer's or forensic
evaluator's reports, cause the competency to stand trial of a
defendant subject to the court's jurisdiction pursuant to
subsection (h) of this section or released pursuant to subsection
(i) of this section to be determined by the court of record while
the defendant remains under the jurisdiction of the court, and in
which case the court may order a forensic evaluation of competency
to stand trial be conducted by a qualified forensic evaluator and
a report rendered to the court in like manner as subsections (a)
and (c), section two of this article.
(k) Any defendant found not competent to stand trial may at
any time petition the court of record for a hearing on his or her
competency.
(l) Notice of court findings of a defendant's competency to
stand trial, of commitment for inpatient management to attain
competency, of dismissal of charges, of order for inpatient
management to protect the public, of release or conditional
release, or any hearings to be conducted pursuant to this section
shall be sent to the prosecuting attorney, the defendant and his or
her counsel, and the mental health facility. Notice of court
release hearing or order for release or conditional release pursuant to subsection (i) of this section shall be made available
to the victim or next of kin of the victim of the offense for which
the defendant was charged. The burden is on the victim or next of
kin of the victim to keep the court apprised of that person's
current mailing address.
(m) A mental health facility not operated by the state is not
obligated to admit or treat a defendant under this section.
§27-6A-4. Criminal responsibility or diminished capacity
evaluation; court jurisdiction over persons found
not guilty by reason of mental illness.
(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 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 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.
(a) If the court of record finds, upon hearing evidence or
representations of counsel for the defendant, that there is
probable cause to believe that the defendant's criminal
responsibility or diminished capacity will be a significant factor
in his or her defense, the court shall appoint one or more
qualified forensic psychiatrists or qualified forensic
psychologists to conduct a forensic evaluation of the defendant's
state of mind at the time of the alleged offense. However, if a
qualified forensic evaluator is of the opinion that the defendant
is not competent to stand trial that no criminal responsibility or
diminished capacity evaluation may be conducted. The forensic
evaluation may not be conducted at a state inpatient mental health
facility unless the defendant has been ordered to a mental health
facility in accordance with subsection (c), section two of this
article or subsection (f) or (h), section three of this article.
To the extent possible, qualified forensic evaluators who have
conducted evaluations of competency under subsection (a), section two of this chapter shall be used to evaluate criminal
responsibility or diminished capacity under this subsection.
(b) The court shall require the party making the motion for
the evaluations, and other parties as the court considers
appropriate, to provide to the qualified forensic evaluator
appointed under subsection (a) of this section any information
relevant to the evaluation within ten business days of its
evaluation order. The information shall include, but not be limited
to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including
statements by the defendant made to the police, investigative
reports, and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical or
social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluation is to include a diminished capacity
assessment, the nature of any lesser criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange
within fifteen days of the receipt of appropriate documents the
completion of any court ordered evaluation which may include record
review and defendant interview and shall, within ten business days
of the date of the completion of any evaluation, provide to the
court of record a written, signed report of his or her opinion on
the issue of criminal responsibility and if ordered, on diminished
capacity. The court may extend the ten-day period for filing the report if a qualified forensic evaluator shows good cause to extend
the period, but in no event may the period exceed thirty days. If
there are no objections by the state or defense counsel, the court
may, by order, dismiss the requirement for a written report if the
qualified forensic evaluator's opinion may otherwise be made known
to the court and interested parties.
(d) If the court determines that the defendant has been
uncooperative during a forensic evaluation ordered pursuant to
subsection (a) of this section or there are inadequate or
conflicting forensic evaluations performed pursuant to subsection
(a) of this section, and the court has reason to believe that an
observation period and additional forensic evaluation or
evaluations are necessary in order to determine if a defendant was
criminally responsible or with diminished capacity, the court may
order the defendant be admitted to a mental health facility
designated by the department for a period not to exceed fifteen
days and an additional evaluation be conducted and a report
rendered in like manner as subsections (a) and (b) of this section
by one or more qualified forensic psychiatrists or one or more
qualified forensic psychologists. 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
take immediate custody of the defendant for transportation and
disposition as ordered by the court.
(e) If the verdict in a criminal trial is a judgment of not
guilty by reason of mental illness, the court shall determine on the record the offense or offenses of which the acquitee could have
otherwise been convicted, and the maximum sentence he or she could
have received. The acquitee shall remain under the court's
jurisdiction until the expiration of the maximum sentence or until
discharged by the court. The court shall commit the acquitee to a
mental health facility designated by the department that is the
least restrictive environment to manage the acquitee and that will
allow for the protection of the public. Notice of the maximum
sentence period with end date shall be provided to the mental
health facility. The court shall order a qualified forensic
evaluator to conduct a dangerousness evaluation to include
dangerousness risk factors to be completed within thirty days of
admission to the mental health facility and a report rendered to
the court within ten business days of the completion of the
evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction continues an
additional ten days beyond any expiration to allow civil commitment
proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(f) In addition to any court ordered evaluations completed
pursuant to section two, three, or four of this article, the
defendant or the state has the right to an evaluation or
evaluations by a forensic evaluator or evaluators of his or her choice and at his or her expense.
(g) A mental health facility not operated by the state is not
required to admit or treat a defendant or acquitee under this
section.
§27-6A-5. Release of acquitee to less restrictive environment;
discharge from jurisdiction of the court.
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. Any person found incompetent to stand
trial may at any time petition the court of record for a hearing on
his competency. Whenever a hearing is held and the court of record
finds that the person is competent to stand trial, his commitment,
if any, to a mental health facility shall be terminated and the
court of record shall order his 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 and the mental health facility agrees to provide such
care and treatment, the court of record may order the further
hospitalization of such person.
(a) If, at any time prior to the expiration of the court's
jurisdiction, the chief medical officer or responsible official of the mental health facility to which an acquitee has been ordered
pursuant to subsection (e), section four of this article believes
that the acquitee is not mentally ill or does not have significant
dangerousness risk factors associated with mental illness, he or
she shall file with the court of record notice of the belief and
shall submit evidence in support of the belief to include a
forensic evaluation dangerousness report conducted in like manner
as subsection (e), section four of this article and recommendations
for treatment, including medications, that reduce or eliminate the
dangerousness risk factors associated with mental illness. The
court of record shall hold a hearing within thirty days of receipt
of the notice to consider evidence as to whether the acquitee shall
be released from the mental health facility to a less restrictive
environment. Notice of the hearing shall be made available to the
prosecuting attorney responsible for the charges brought against
the acquitee at trial, the acquitee and his or her counsel and the
mental health facility. If upon consideration of the evidence the
court determines that an acquitee may be released from a mental
health facility to a less restrictive setting, the court shall
order, within fifteen days of the hearing, the acquitee be released
upon terms and conditions, if any, the court considers appropriate
for the safety of the community and the well-being of the acquitee.
Any terms and conditions imposed by the court must be protective
and therapeutic in nature, not punitive. When a defendant's
dangerousness risk factors associated with mental illness are
reduced or eliminated as a result of any treatment, the court, in its discretion, may make the continuance of appropriate treatment,
including medications, a condition of the defendant's release from
inpatient hospitalization. The court shall maintain jurisdiction
of the defendant in accordance with said subsection. Upon notice
that an acquitee released on the condition that he or she continues
appropriate treatment does not continue his or her treatment, the
prosecuting attorney responsible for the charges brought against
the acquitee at trial shall, by motion, cause the court to
reconsider the acquitee's release and upon a showing that the
acquitee is in violation of the conditions of his or her release,
the court may reorder the acquitee to a mental health facility
designated by the department which is the least restrictive setting
appropriate to manage the acquitee and protect the public.
(b) No later than thirty days prior to the release from a
mental health facility or other management setting of an acquitee
because of the expiration of the court's jurisdiction as set in
accordance with subsection (e), section four of this article, if
the acquitee's physician, psychologist, chief medical officer or
other responsible party is of the opinion that the acquitee's
mental illness renders the acquitee to be likely to cause serious
harm to self or others, the supervising physician, psychologist,
chief medical officer or other responsible party shall notify the
court of record who shall promptly notify the prosecuting attorney
in the county of the court having jurisdiction of the opinion and
the basis for the opinion. Following notification, the prosecuting
attorney may file, within ten days, a civil commitment application against the acquitee pursuant to article five of this chapter.
§27-6A-6. Judicial hearing of defendant's defense other than not
guilty by reason of mental illness.
If a defendant who has been found to be incompetent not
competent to stand trial believes that he or she can establish a
defense of not guilty to the charges pending against him or her,
other than the defense of not guilty by reason of mental illness,
mental retardation or addiction, he the defendant may request an
opportunity to offer a defense thereto on the merits before the
court which has criminal jurisdiction. If the defendant is unable
to obtain legal counsel, the court of record shall appoint counsel
for the defendant to assist him or her in supporting the request by
affidavit or other evidence. If the court of record in its
discretion grants such a request, the evidence of the defendant and
of the state shall be heard by the court of record sitting without
a jury. If after hearing such petition the court of record finds
insufficient evidence to support a conviction, it shall dismiss the
indictment and order the release of the defendant from criminal
custody. The release order, however, may be stayed for ten days to
allow institution of civil commitment proceedings to be instituted
by the prosecutor pursuant to article five of this chapter:
Provided, That a defendant committed to a mental health facility
pursuant to subsection (f) or (h), section three of this article
shall be immediately released from the facility unless civilly
committed.
§27-6A-8. Credit for time; expenses.
(a) If a person is convicted of a crime, any time spent in
involuntary confinement in a mental health facility as a result of
being charged with the crime shall be credited to the sentence.
(b) All medical and psychological expenses attendant upon
these proceedings inpatient care and treatment shall be paid by the
department.
§27-6A-9. Competency to be adjudicated in juvenile court.
In a similar manner and in accordance with procedures set
forth in subsection (a), section two of this article or subsection
(a), section four of this article, a juvenile court may order a
qualified forensic evaluator to conduct an evaluation of a juvenile
to aid the court in its disposition under chapter forty-nine of
this code. In a similar manner and in accordance with procedures
set forth in subsection (d), section two of this article or
subsection (d), section four of this article, a juvenile court may
order a period of observation for an alleged delinquent or
neglected juvenile at a mental health facility designated by the
department to aid the court in its disposition. The period of
observation may not exceed fifteen days.
§27-6A-10. Medications and management of court ordered
individuals.
(a) At any time pursuant to section two, three or four of this
article, an individual is court ordered to a mental health facility
the individual has the right to receive treatment under the standards of medical management.
(b) An individual with health care decision making capacity
may refuse medications or other management unless court ordered to
be treated or unless a treating clinician determines that
medication or other management is necessary in emergencies or to
prevent danger to the individual or others.
§27-6a-11. Payment to forensic evaluators.
The department shall pay qualified forensic evaluators for all
matters related to conducting a court ordered forensic evaluation.
The department shall develop and implement a process for prompt
payment to qualified forensic evaluators. The department shall
establish policies and procedures for establishing a maximum rate
schedule for each of the four evaluation types (competency to stand
trial, criminal responsibility, diminished capacity, dangerousness)
to include all efforts towards the completion of each evaluation
such as scheduling and administrative tasks, record review,
psychological and other testing, interviews, report writing,
research, preparation and consultation. Such policies and
procedures shall include input from provider representatives as
necessary and appropriate. Any rate schedule shall be fair and
reasonable. The department shall consider requests for payment in
excess of established rates or other expenses for good cause shown.