AN ACT Relating to Criminal Defendants Found Incompetent to Stand Trial

UNOFFICIAL COPY AS OF 05/11/18 02 REG. SESS. 02 RS BR 318

AN ACT relating to criminal defendants found incompetent to stand trial. Be it enacted by the General Assembly of the Commonwealth of Kentucky: Section 1. KRS 504.060 is amended to read as follows: As used in this chapter, unless the context otherwise requires: (1) "Community board" means the regional community mental health and mental retardation board established under KRS 210.370 to 210.480 that includes the county in which a criminal proceeding under this chapter occurs. (2) "Department" means the Department of Corrections; (3)[(2)] "Forensic psychiatric facility" means a mental institution or facility, or part thereof, designated by the secretary of the Cabinet for Health Services for the purpose and function of providing inpatient evaluation, care, and treatment for mentally ill or mentally retarded persons who have been charged with or convicted of a felony; (4)[(3)] "Foreseeable future" means not more than[ three hundred] sixty (60)[(360)] days; (5)[(4)] "Incompetency to stand trial" means, as a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense; (6)[(5)] "Insanity" means, as a result of mental condition, lack of substantial capacity

either to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law; (7)[(6)] "Mental illness" means substantially impaired capacity to use self-control, judgment, or discretion in the conduct of one's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological, or social factors; (8)[(7)] "Mental retardation" means significantly subaverage general intellectual

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functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period and is a condition which may exist concurrently with mental illness or insanity; (9)[(8)] "Psychiatrist" means a physician licensed pursuant to KRS Chapter 311 who is certified or eligible to apply for certification by the American Board of Psychiatry and Neurology, Inc.; (10)[(9)] "Psychologist" means a person licensed at the doctoral level pursuant to KRS Chapter 319 who has been designated by the Kentucky Board of Examiners of Psychology as competent to perform examinations; (11)[(10)] "State hospital" means the inpatient treatment facility that, in accordance with KRS 210.300, the Cabinet for Health Services has designated for the county which is served by the community board. (12) "Treatment" means medication or counseling, therapy, psychotherapy, and other professional services provided by or at the direction of psychologists or psychiatrists. "Treatment" shall not include electroshock therapy or psychosurgery; and (13)[(11)] "Treatment facility" means an institution or part thereof, approved by the Cabinet for Health Services, which provides evaluation, care, and treatment for insane, mentally ill, or mentally retarded persons on an inpatient or outpatient basis,

or both; and (14) "Violent crime" means a: (a) Capital offense; (b) Class A felony; (c) Class B felony involving the death of the victim; (d) Class B felony involving serious physical injury to the victim; (e) Rape in the first degree; or (f) Sodomy in the first degree.

Section 2. KRS 504.100 is amended to read as follows: (1) If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe that the defendant is incompetent to stand trial, then the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition. (2) The report of the psychologist or psychiatrist shall state whether or not he or she finds that the defendant is incompetent to stand trial. If he or she finds that the defendant is incompetent to stand trial, then the report shall also state: (a) Whether there is a substantial probability of the defendant[his] attaining competency in the foreseeable future; and (b) What type of treatment and[ what type] treatment facility the examiner recommends in order for the defendant to attain and maintain competency. (3) After the filing of a report [(]or reports[)], the court shall hold a hearing to determine whether or not the defendant is incompetent[competent] to stand trial. Section 3. KRS 504.110 is amended to read as follows: (1) If the court finds that the defendant is incompetent to stand trial and that[but] there is a substantial probability that the defendant[he] will attain competency in the foreseeable future, then the court[it] shall commit the defendant to a treatment facility or a forensic psychiatric facility and order the defendant[him] to submit to

treatment for sixty (60) days or until the treating psychologist or psychiatrist[ treating him] finds that the defendant is[him] competent, whichever occurs first, except that if the defendant is charged with a felony, then he or she shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Health Services or the secretary's designee determines that the defendant shall be treated in another treatment[Cabinet for Health Services] facility. Within ten (10) days of the end of the commitment period or of the filing by the treating psychologist or psychiatrist who finds the defendant

competent[that time], the court shall hold another hearing to determine whether or not the defendant is competent to stand trial. (2) If the court finds that the defendant is incompetent to stand trial and that[but] there is no substantial probability that he or she will attain competency in the foreseeable future, then the court[it] shall either: (a) Order the defendant to participate in a treatment plan developed by the community board in accordance with Section 4 of this Act; or (b) Conduct an involuntary hospitalization proceeding under KRS 202A.051[Chapter 202A] or an involuntary admission proceeding under KRS 202B.100[202B]. (3) If the court finds that the defendant is competent to stand trial, then the court shall resume[continue] the criminal proceedings against the defendant. (4) Before proceeding pursuant to subsection (2) of this section the court shall, without prejudice, dismiss the underlying indictment, information, or complaint which precipitated the hearing in Section 2 of this Act. SECTION 4. A NEW SECTION OF KRS CHAPTER 504 IS CREATED TO READ AS FOLLOWS: (1) Treatment plans developed under this section shall be available only to defendants charged with a violent crime and no treatment plan shall be for a

period longer than one (1) year. (2) Treatment plans shall provide mental health, substance abuse, and integrated treatment for co-occurring disorders as necessary to the defendant in order for the defendant to attain and maintain competency to stand trial. (3) Treatment plans shall be developed by the community board in conjunction with the state hospital and each defendant. (4) The community board shall certify in writing to the court that there are funds available for services under this section before any treatment plan may be

approved by the court. (5) The Cabinet for Health Services may promulgate administrative regulations to implement the goal of the treatment plan. (6) Treatment plans shall have no effect unless approved by the court and each shall be designed to balance the need to protect the community and public at large with any applicable individual rights of the defendant. (7) After notice and a hearing are provided to the defendant, the court may approve the treatment plan, but only after the court finds that the treatment plan is consistent not only with the goal of bringing the defendant to trial, but also with the defendant's rights to due process. In making this determination, the court shall consider at least the following factors: (a) Whether the treatment is necessary to protect the defendant or others from harm; (b) Whether the defendant is capable of giving informed consent to the treatment; (c) Whether a less restrictive alternative treatment exists that would accomplish the goal of the treatment plan; and (d) Whether the treatment carries with it any risk of negative side effects. SECTION 5. A NEW SECTION OF KRS CHAPTER 504 IS CREATED TO

READ AS FOLLOWS: (1) The community board shall report to the court on the defendant's progress towards attaining and maintaining competency to stand trial at the following times: (a) At least once within the first thirty (30) days of the treatment plan; (b) Every one hundred twenty (120) days thereafter; (c) Fourteen (14) days before the treatment plan is scheduled to end; and (d) Whenever the community board has reason to believe that the defendant is

competent to stand trial. (2) If, after a report filed under subsection (1) of this section, the court believes that the defendant may be competent to stand trial, or if at any other time the court has reasonable grounds to believe that the defendant is competent to stand trial, then the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat, and report on the defendant's mental condition. (3) The community board or other service provider may request the court to release the participant from the treatment plan only after the first report under subsection (1) of this section is submitted to the court. SECTION 6. A NEW SECTION OF KRS CHAPTER 504 IS CREATED TO READ AS FOLLOWS: (1) In the case of outpatient services provided by a treatment facility, when a community board or other service provider becomes aware that a participant has materially failed to comply with the terms of his or her treatment plan, the community board or other service provider shall immediately file an affidavit with the court detailing that participant's material failure to comply, a physical description of the participant, an assessment of the participant's threat to the community, and the nearest treatment facility to which the participant should be transported once apprehended. The community board shall serve notice on the

treatment facility named in the affidavit of the circumstances surrounding the participant's arrival. (2) The clerk of the court shall file this affidavit with the records of the defendant's case and mail copies to the prosecuting attorney and the defendant's attorney. Upon receipt of the affidavit filed with the clerk, the court shall issue an order to a local law enforcement agency to apprehend the defendant and place him or her in the custody of the treatment facility designated in the affidavit. (3) The court shall hold a hearing within seven (7) days of the filing of the affidavit

to determine if the participant has failed to comply with the treatment plan. If the court orders the participant confined to an inpatient treatment facility, then that period of confinement shall not exceed sixty (60) days and may be for a lesser period upon the recommendation of the community board. The confinement period shall, under no circumstances, operate to exceed the maximum one (1) year period of the treatment plan provided for in subsection (1) of Section 4 of this Act. (4) The court shall also consider whether a modification of the treatment plan is necessary. If the court makes such a determination and finds that a deprivation of the defendant's liberty or property is unavoidable, then the defendant shall have an opportunity to contest the modified treatment plan before it takes effect. SECTION 7. A NEW SECTION OF KRS CHAPTER 504 IS CREATED TO READ AS FOLLOWS: (1) No sooner than thirty (30) days but no more than five (5) days prior to the end of the treatment plan the court shall hold a hearing to determine the participant's progress, the status of the charges against the participant, and the role of the Commonwealth in any further supervision of the participant arising out of the criminal charges. (2) If the participant remains incompetent to stand trial and the length of the

treatment plan was for less than the maximum one (1) year period allowed in subsection (1) of Section 4 of this Act, then the court shall, in consultation with the community board, consider continuing the treatment plan. If the court makes such a determination, then the defendant shall have an opportunity to contest the extension of the treatment plan before it takes effect. (3) If, after one (1) year of intensive services in a treatment plan developed under Section 4 of this Act, the participant remains incompetent to stand trial, then the community board shall assess the participant's needs and recommend one of the

following to the court: (a) A termination of the treatment plan and a referral to other mental health services as deemed appropriate; or (b) The initiation of involuntary hospitalization proceedings under KRS 202A.051 or involuntary admission proceedings under KRS 202B.100. (4) The court may, upon the continued incompetency to stand trial of the defendant, adopt either of the community board's recommendations in subsections (3)(a) or (b) of this section, or it may dismiss the indictment, information, or complaint and discharge the defendant. (5) If, at any time, the court finds that the participant is competent to stand trial and the criminal charges have not been dismissed, then the court shall continue those proceedings against the defendant. Section 8. KRS 210.410 is amended to read as follows: (1) The secretary of the Cabinet for Health Services is hereby authorized to make state grants and other fund allocations from the Cabinet for Health Services to assist any combination of cities and counties, or nonprofit corporations in the establishment and operation of regional community mental health and mental retardation programs which shall provide at least the following services: (a) Inpatient services;

(b) Outpatient services; (c) Partial hospitalization or psychosocial rehabilitation services; (d) Emergency services; (e) Consultation and education services; and (f) Mental retardation services. (2) The services required in subsection (1)(a), (b), (c), (d), and (e) of this section shall be available to the mentally ill, participants in treatment plans developed under Section 4 of this Act, drug abusers and alcohol abusers, and all age groups

including children and the elderly. The services required in subsection (1)(a), (b), (c), (d), (e), and (f) shall be available to the mentally retarded. The services required in subsection (1)(b) of this section shall be available to any child age sixteen (16) or older upon request of such child without the consent of a parent or legal guardian, if the matter for which the services are sought involves alleged physical or sexual abuse by a parent or guardian whose consent would otherwise be required. Section 9. The responsibility of the Cabinet for Health Services to provide services to criminal defendants under Section 4 of this Act during the 2002-2004 biennium is contingent upon a line item appropriation for those services in the 2002-2004 biennium budget bill.

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