September 8, 2004, Introduced by Rep. Meyer and referred to the Committee on Judiciary.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
by amending sections 1001a, 1020, 1022, 1024, 1026, 1028, 1030,
1031, 1032, 1034, 1036, 1038, 1040, 1042, 1044, and 1050 (MCL
330.2001a, 330.2020, 330.2022, 330,2024, 330.2026, 330.2028,
330.2030, 330.2031, 330.2032, 330.2034, 330.2036, 330.2038,
330.2040, 330.2042, 330.2044, and 330.2050), section 1001a as
amended by 1993 PA 252.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 1001a. (1) "Center for forensic psychiatry program" or
2 "center" means that program established by the center for
3 forensic psychiatry to provide services related to all of the
4 following:
5 (a) Persons Individuals
who are alleged to be incompetent
6 to stand trial.
1 (b) Persons Individuals
who are acquitted of criminal
2 charges by reason of insanity.
3 (c) Persons Individuals
who are transferred to the center
4 for forensic psychiatry from places of detention or from other
5 state psychiatric hospitals.
6 (2) "Corrections mental health program" means that program of
7 the department of corrections that is responsible for the
8 provision of mental health services to certain prisoners under
9 this chapter.
10 (3) "Hearing committee" means a committee appointed by the
11 corrections mental health
program pursuant to under
12 section 1003c.
13 (4) "Juvenile" means an individual subject to the
14 jurisdiction of the family division of circuit court according to
15 section 2(a)(1) of chapter XIIA of the probate code of 1939, 1939
16 PA 288, MCL 712A.2.
17 (5) (4) "Mental
health services" means the provision of
18 providing mental health care in a protective environment to
19 prisoners with mental illness or mental retardation, including,
20 but not limited to,
chemotherapy, and individual therapy, and
21 group therapies therapy.
22 (6) (5) "Mental
illness" means a substantial thought or
23 mood disorder of
thought or mood that significantly impairs
24 judgment, behavior, capacity to recognize reality, or ability to
25 cope with the ordinary demands of life.
26 (7) (6) "Mentally
retarded" means significantly subaverage
27 general intellectual functioning that originates during the
1 developmental period and is associated with impairment in
2 adaptive behavior.
3 Sec. 1020. (1) A
defendant to a criminal charge shall be
4 or a juvenile facing a charge that would be a crime if committed
5 by an adult is presumed competent to stand trial. He or she
6 shall be determined incompetent to stand trial only if he or she
7 is incapable because of his or her mental condition, regardless
8 of his or her age, of understanding the nature and object of the
9 proceedings against him or her or of assisting in his or her
10 defense in a rational manner. The court shall determine the
11 capacity of a defendant or juvenile to assist in his or her
12 defense by his or her ability to perform the tasks reasonably
13 necessary for him or her to perform in the preparation of his or
14 her defense and during his or her trial.
15 (2) A defendant or juvenile shall not be determined
16 incompetent to stand trial because psychotropic drugs or other
17 medication have been or are being administered under proper
18 medical direction, and
even though without such the medication
19 the defendant or juvenile might be incompetent to stand trial.
20 However, when if
the defendant or juvenile is receiving such
21 medication, the court
may, prior to before making its
22 determination on the issue of incompetence to stand trial,
23 require the filing of a statement by the treating physician that
24 such the medication will not adversely affect the
defendant's
25 or juvenile's understanding of the proceedings or his or her
26 ability to assist in his or her defense.
27 Sec. 1022. (1) A defendant or juvenile who is determined
1 incompetent to stand trial shall not be proceeded against while
2 he or she is incompetent.
3 (2) Any A
pretrial motion may be made by either the
4 defense, the juvenile, the juvenile's attorney, the guardian
5 ad litem, the court, or the prosecution while a defendant or
6 juvenile is incompetent to stand trial, and the issues presented
7 by the motion shall be heard and decided if the presence of the
8 defendant or juvenile is not essential for a fair hearing and
9 decision on the motion.
10 (3) When it
appears If the court determines that evidence
11 essential to the case the defense, juvenile, or prosecution plans
12 to present might not be available at the time of trial, the court
13 shall allow such that
evidence to be taken and preserved.
14 Evidence so taken
shall be that evidence is
admissible at the
15 trial only if it is not otherwise available or by stipulation of
16 the parties. Procedures
for the taking and preserving of
17 evidence under this subsection, and the conditions under which
18 such that evidence shall be is
admissible at trial, shall be
19 provided by court rule.
20 Sec. 1024. The issue of incompetence to stand trial may be
21 raised by the defense, the juvenile, the court, or the
22 prosecution. The time and form of the procedure for raising the
23 issue shall be provided by court rule.
24 Sec. 1026. (1) Upon a showing that the defendant or
25 juvenile may be incompetent to stand trial, the court shall order
26 the defendant or juvenile to undergo an examination by personnel
27 of either the center for forensic psychiatry or other facility
1 officially certified by
the department of mental health to
2 perform examinations relating to the issue of incompetence to
3 stand trial. The defendant or juvenile shall make himself or
4 herself available for the examination at the places and times
5 established by the center or other certified facility. If the
6 defendant or juvenile, after being notified, fails to make
7 himself or herself available for the examination, the court may
8 order his or her commitment to the center or other facility
9 without a hearing.
10 (2) When If
the defendant or juvenile is to be held in a
11 jail or similar place of detention pending trial, the center or
12 other facility may perform the examination in the jail or similar
13 place of detention or may notify the sheriff to transport the
14 defendant or juvenile to the center or other facility for the
15 examination. ,
and the The sheriff shall return the defendant
16 or juvenile to the jail or similar place of detention upon
17 completion of the examination.
18 (3) Except as
provided in subsection (1), when if the
19 defendant or juvenile is not to be held in a jail or similar
20 place of detention pending trial, the court shall commit him or
21 her to the center or
other facility only when if the commitment
22 is necessary for the
performance of to perform the
23 examination.
24 (4) The defendant or juvenile shall be released by the center
25 or other facility upon completion of the examination.
26 Sec. 1028. (1) When
If the defendant or juvenile is
27 ordered to undergo an
examination pursuant to under
1 section 1026, the center or other facility shall, for the purpose
2 of gathering psychiatric and other information pertinent to the
3 issue of the incompetence of the defendant or juvenile to stand
4 trial, examine the defendant or juvenile and consult with
5 defense counsel for the defense or the juvenile, and
may
6 consult with the
prosecutor or other persons. Defense counsel
7 Counsel for the defense or juvenile shall make himself or herself
8 available for consultation with the center or other facility.
9 The examination shall be
performed, defense counsel for the
10 defense or juvenile consulted, and a written report submitted to
11 the court, prosecuting
attorney, and defense counsel for the
12 defense or juvenile within 60 days of the date of the order.
13 (2) The report shall contain at least all of the following:
14 (a) The clinical findings of the center or other facility.
15 (b) The facts, in reasonable detail, upon which the findings
16 are based, and upon request of the court, counsel for the defense
17 or juvenile, or
prosecution additional facts germane relevant
18 to the findings.
19 (c) The opinion of the center or other facility on the issue
20 of the incompetence
of whether the defendant or juvenile is
21 incompetent to stand trial.
22 (d) If the opinion is that the defendant or juvenile is
23 incompetent to stand trial, the opinion of the center or other
24 facility on the
likelihood of the defendant attaining or
25 juvenile will attain competence to stand trial, if provided a
26 course of treatment, within the time limit established by section
27 1034.
1 (3) The opinion concerning competency to stand trial derived
2 from the examination may not be admitted as evidence for any
3 purpose in the pending criminal or juvenile proceedings, except
4 on the issues to be determined in the hearings required or
5 permitted by sections
1030 and 1040. The foregoing A bar of
6 testimony shall not
be construed to under this subsection does
7 not prohibit the examining qualified clinician from presenting at
8 other stages in the criminal or juvenile proceedings opinions
9 concerning criminal responsibility, disposition, or other issues
10 if they were originally requested by the court and are
11 available. Information gathered in the course of a prior
12 examination that is of historical value to the examining
13 qualified clinician may
be utilized in the formulation of
14 formulating an opinion in
any a subsequent court ordered
15 evaluation.
16 Sec. 1030. (1) Upon receipt of the written report, the
17 court shall cause order
the defendant or juvenile to appear in
18 court and shall hold a hearing within 5 days or upon the
19 conclusion of the case, proceeding, or other matter then before
20 it, whichever is sooner, unless the defense, counsel for the
21 juvenile, or the prosecution for good cause requests a delay for
22 a reasonable time.
23 (2) On the basis of the evidence admitted at the hearing, the
24 court shall determine the
issue of the incompetence of whether
25 the defendant or juvenile is incompetent to stand trial. If the
26 defendant or juvenile is determined incompetent to stand trial,
27 the court shall also determine whether there is a substantial
1 probability that the defendant or juvenile, if provided a course
2 of treatment, will attain competence to stand trial within the
3 time limit established by section 1034.
4 (3) The written report
shall be admissible as competent
5 evidence in the hearing, unless the defense, counsel for the
6 juvenile, or the prosecution objects, but not for any other
7 purpose in the pending criminal or juvenile proceeding. The
8 defense, counsel for the juvenile, the prosecution, and the court
9 on its own motion may present additional evidence relevant to the
10 issues to be determined at the hearing.
11 (4) If the defendant or juvenile is receiving medication and
12 is not determined incompetent to stand trial, the court may, in
13 order to maintain the competence of the defendant or juvenile to
14 stand trial, make
such orders as it deems issue an order the
15 court considers appropriate
for the continued administration of
16 such medication pending and during trial.
17 Sec. 1031. If the defendant or juvenile is determined
18 incompetent to stand
trial , and if the court determines that
19 there is not a substantial probability that, if provided a course
20 of treatment, he or she will attain competence to stand trial
21 within the time limit established by section 1034, the court may
22 direct a prosecuting attorney to file a petition asserting that
23 the defendant is a person requiring treatment as defined by
24 section 401 or meets the criteria for judicial admission as
25 defined by section 515 or that the juvenile is a minor requiring
26 treatment as defined in section 498b with the probate court of
27 the defendant's or juvenile's county of residence.
1 Sec. 1032. (1) If the defendant or juvenile is determined
2 incompetent to stand trial, and if the court determines that
3 there is a substantial probability that, if provided a course of
4 treatment, he or she will attain competence to stand trial within
5 the time limit established by section 1034, the court shall order
6 him the defendant or juvenile to undergo treatment
to render
7 him or her competent to stand trial.
8 (2) The court shall appoint a medical supervisor of the
9 course of treatment. The supervisor may be the department or any
10 person or agency willing
to supervise the course of treatment. ,
11 or the department of
mental health.
12 (3) The court may commit the defendant or juvenile to the
13 custody of the department,
of mental health, or to the custody
14 of any other inpatient mental health facility if it agrees, only
15 if commitment is necessary for the effective administration of
16 the course of treatment. If the defendant or juvenile, absent
17 commitment to the
department of mental health or other
18 inpatient facility, would otherwise be held in a jail or similar
19 place of detention pending trial, the court may enter an order
20 restricting the defendant
in his defendant's or juvenile's
21 movements to the buildings and grounds of the facility at which
22 he or she is to be treated.
23 Sec. 1034. (1) No
An order or combination of orders
24 issued under section 1032 or 1040, or both, shall not have force
25 and effect for a total period in excess of 15 months or 1/3 of
26 the maximum sentence the defendant could receive if convicted of
27 the charges against him or her, or 1/3 of the maximum sentence
1 the juvenile could have received if convicted as an adult,
2 whichever is lesser;
nor less. An order or combination of
3 orders issued under section 1032 or 1040, or both, shall not have
4 force and effect after the charges against the defendant or
5 juvenile are dismissed.
6 (2) The court shall provide for notification of defense
7 counsel, the juvenile's counsel, the prosecution, and the medical
8 supervisor of treatment whenever
when the charges against the
9 defendant or juvenile
are dismissed and whenever when an order
10 whose stated time period has not elapsed is voided by the court.
11 (3) If the defendant or juvenile is to be discharged or
12 released because of the expiration of an order or orders under
13 section 1032 or 1040, the
supervisor of treatment prior to
14 before the discharge or release may file a petition asserting
15 that the defendant is a person requiring treatment as defined by
16 section 401, or
that the defendant meets the criteria for
17 judicial admission as defined by section 515, or that the
18 juvenile is a minor requiring treatment as defined in section
19 498b, with the probate court of the defendant's or juvenile's
20 county of residence.
21 Sec. 1036. The defendant's
or juvenile's right of the
22 defendant to be at liberty pending trial, on bail or otherwise,
23 shall not be impaired because the issue of incompetence to stand
24 trial has been raised, because the defendant or juvenile has been
25 determined incompetent to stand trial, or because the defendant
26 or juvenile has been ordered to undergo treatment to render him
27 or her competent to stand trial, except to the extent authorized
1 by section 1026 for the purpose of an examination or by section
2 1032 for the purpose of administering a course of treatment.
3 Sec. 1038. (1) The medical supervisor of treatment shall
4 transmit a written report to the court, prosecuting attorney,
5 defense counsel, the juvenile's counsel, and the center for
6 forensic psychiatry in each of the following instances:
7 (a) At least once every 90 days from the date of an order
8 issued pursuant to under
section 1032.
9 (b) Whenever If
he or she is of the opinion that the
10 defendant or juvenile is no longer incompetent to stand trial.
11 (c) Whenever If
he or she is of the opinion that there is
12 not a substantial probability that the defendant or juvenile,
13 with treatment, will attain competence to stand trial within the
14 time limit established by section 1034.
15 (2) The reports shall
be admissible pursuant to under
16 section 1030(3) and shall contain all of the following:
17 (a) The clinical findings of the supervisor of treatment.
18 (b) The facts, in reasonable detail, upon which the findings
19 are based, and upon
request of the court, defense, or
20 prosecution any additional facts germane relevant
to the
21 findings if requested by court, defense counsel, juvenile's
22 counsel, or prosecution.
23 (c) The opinion of the supervisor of treatment on the issue
24 of the incompetence of the defendant or juvenile to stand trial.
25 (d) If the opinion is that the defendant or juvenile is
26 incompetent to stand trial, the opinion of the supervisor of
27 treatment on whether the defendant or juvenile has made progress
1 toward attaining competence to stand trial during the course of
2 treatment.
3 Sec. 1040. (1) The court shall forthwith hear and
4 redetermine the issue of the incompetence of the defendant or
5 juvenile to stand trial.
and, if If the defendant or juvenile
6 is redetermined incompetent to stand trial, the court shall hear
7 and determine whether the defendant or juvenile has made progress
8 toward attaining competence to stand trial during his or her
9 course of treatment, whenever
if the court receives a report
10 from the supervisor of treatment, unless the defense or juvenile
11 waives the hearing, or whenever
deemed when considered
12 appropriate by the court.
13 (2) Section 1030 shall
govern governs hearings held
14 pursuant to under this section.
15 (3) If the defendant or juvenile is not redetermined
16 incompetent to stand
trial at a hearing held pursuant to under
17 this section, trial shall commence as soon as practicable. If
18 the defendant or juvenile is redetermined incompetent to stand
19 trial, and if the court determines that the defendant or juvenile
20 has made progress toward attaining competence to stand trial, the
21 court may modify or continue any orders it previously issued
22 under section 1032.
23 Sec. 1042. Time spent in custody because of orders issued
24 pursuant to under sections 1026, 1032, and 1040 shall be
25 credited against any sentence or disposition imposed on the
26 defendant or juvenile in the pending criminal case or in any
27 other case arising from the same transaction.
1 Sec. 1044. (1) The charges against a defendant or juvenile
2 determined incompetent to stand trial shall be dismissed if
3 either of the following applies:
4 (a) When the The
prosecutor notifies the court of his or
5 her intention not to
prosecute the case. ; or
6 (b) Fifteen months after
have elapsed since the date on
7 which the defendant or juvenile was originally determined
8 incompetent to stand trial.
9 (2) When If
charges are dismissed pursuant to under
10 subsection (1), the same charges, or other charges arising from
11 the transaction which
that gave rise to the dismissed charges,
12 shall not subsequently be filed against the defendant or
13 juvenile, except as provided in this section.
14 (3) If the charges
were dismissed pursuant to under
15 subsection (1)(b) and if the crime charged was punishable by a
16 sentence of life imprisonment, or, in the case of a juvenile,
17 would have been a crime punishable by a sentence of life
18 imprisonment if committed by an adult, the prosecutor may at any
19 time petition the court for permission to again file charges. In
20 the case of other charges
dismissed pursuant to under
21 subsection (1)(b), the prosecutor may, within that period of time
22 after the charges were dismissed equal to 1/3 of the maximum
23 sentence that the defendant could receive on the charges or that
24 a juvenile could have received if convicted as an adult, petition
25 the court for permission to again file charges.
26 (4) The court shall grant permission to again file charges if
27 after a hearing it determines that the defendant or juvenile is
1 competent to stand
trial. Prior to Before the hearing, the
2 court may order the defendant or juvenile to be examined by
3 personnel of the center for forensic psychiatry or other
4 qualified person as an outpatient, but may not commit the
5 defendant or juvenile to the center or any other facility for the
6 examination.
7 Sec. 1050. (1) The
court shall immediately commit any
8 person a juvenile found not responsible by reason of
insanity
9 for an offense that would be a crime if committed by an adult or
10 an individual who is acquitted of a criminal charge by reason of
11 insanity to the custody of the center for forensic psychiatry,
12 for a period not to
exceed not more than 60 days. The court
13 shall forward to the center a full report, in the form of a
14 settled record, of the
facts concerning the crime which that
15 the patient was found to have committed but of which he or she
16 was acquitted or found not responsible for by reason of
17 insanity. The center shall thoroughly examine and evaluate the
18 patient's present mental
condition of the person in order to
19 reach an opinion on
whether the person patient meets the
20 criteria of a person requiring treatment or for judicial
21 admission set forth in section 401 or 515 or is a minor requiring
22 treatment as defined in section 498b.
23 (2) Within the 60-day period the center shall file a report
24 with the court, prosecuting attorney, juvenile's counsel, and
25 defense counsel. The report shall contain a summary of the crime
26 which that the patient committed but of which he or
she was
27 acquitted or found not responsible for by reason of insanity and
1 an opinion as to whether
the person patient meets the criteria
2 of a person requiring treatment or for judicial admission as
3 defined by section 401 or 515 or is a minor requiring treatment
4 as defined by section 498b, and the facts upon which the opinion
5 is based. If the opinion
stated is states that the person
6 patient is a person requiring treatment, the report shall be
7 accompanied by certificates from 2 physicians, at least 1 of whom
8 shall be a psychiatrist, which
that conform to the requirements
9 of section 400(j) 100c(10).
If the opinion stated is that the
10 patient is a minor requiring treatment, the report shall be
11 accompanied by an evaluation from a psychiatrist that conforms to
12 the requirements of section 498g.
13 (3) After receipt
of receiving the report, the court may
14 direct the prosecuting
attorney to file a petition pursuant to
15 under section 434 or 516 for an order of hospitalization or an
16 order of admission to a facility with the probate court of the
17 person's patient's county of residence or of the county
in
18 which the criminal trial
was held. Any certificates A
19 certificate that accompanied the report of the center may be
20 filed with the petition,
and shall be is sufficient to cause a
21 hearing to be held pursuant
to under section 451 even if they
22 were that certificate was not executed within 72
hours of the
23 filing of after the petition was filed. An
evaluation
24 supporting the opinion that the patient is a minor requiring
25 treatment is sufficient to support hospitalization under section
26 498f. The report from the court containing the facts concerning
27 the crime for which he or she was acquitted by reason of insanity
1 shall be admissible in the hearings. The report from the court
2 containing the facts of the crime for which he or she was found
3 not responsible by reason of insanity shall be considered in
4 determining whether the minor should be hospitalized and
5 determining the treatment to be provided.
6 (4) If the report
states the opinion that the person
7 patient meets the
criteria of a person requiring treatment, or
8 meets the criteria for judicial admission, or meets the criteria
9 of a minor requiring hospitalization, and if a petition is to be
10 filed pursuant to under
subsection (3), the center may retain
11 the person patient
pending a hearing on the petition or the
12 minor's transfer to a hospital. If a petition is not to be filed
13 or the prosecution does not seek hospitalization of the patient
14 as a minor requiring treatment, the prosecutor shall notify the
15 center in writing. The
center, upon receipt of receiving the
16 notification, shall cause
the person to be discharged discharge
17 the patient.
18 (5) The release
provisions of sections 476 to 479 of this
19 act shall apply to a person found to have committed a crime by
a
20 court or jury, but who is acquitted by reason of insanity, except
21 that a person shall not be discharged or placed on leave without
22 first being evaluated and recommended for discharge or leave by
23 the department's program
for forensic psychiatry. , and
24 authorized Authorized leave or absence from the hospital
may be
25 extended for a period of 5 years.
26 Enacting section 1. This amendatory act does not take
27 effect unless all of the following bills of the 92nd Legislature
1 are enacted into law:
2 (a) Senate Bill No. _____ or House Bill No. 6130 (request
3 no. 02327'03).
4 (b) Senate Bill No. _____ or House Bill No. 6132 (request
5 no. 02329'03).