February 8, 2005, 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:
Sec. 1001a. (1) "Center for forensic psychiatry program" or
"center" means that program established by the center for forensic
psychiatry to provide services related to all of the following:
(a)
Persons Individuals who are alleged to be incompetent to
stand trial.
(b)
Persons Individuals who are acquitted of criminal
charges by reason of insanity.
(c)
Persons Individuals who are transferred to the center
for forensic psychiatry from places of detention or from other
state psychiatric hospitals.
(2) "Corrections mental health program" means that program of
the department of corrections that is responsible for the provision
of mental health services to certain prisoners under this chapter.
(3) "Hearing committee" means a committee appointed by the
corrections
mental health program pursuant to under section
1003c.
(4) "Juvenile" means an individual subject to the jurisdiction
of the family division of circuit court according to section
2(a)(1) of chapter XIIA of the probate code of 1939, 1939 PA 288,
MCL 712A.2.
(5) (4)
"Mental health services"
means the provision of
providing mental health care in a protective environment to
prisoners with mental illness or mental retardation, including, but
not
limited to, chemotherapy, and individual therapy,
and group
therapies
therapy.
(6) (5)
"Mental illness" means a
substantial thought or
mood disorder of thought or mood that significantly
impairs
judgment, behavior, capacity to recognize reality, or ability to
cope with the ordinary demands of life.
(7) (6)
"Mentally retarded"
means significantly subaverage
general intellectual functioning that originates during the
developmental period and is associated with impairment in adaptive
behavior.
Sec.
1020. (1) A defendant to a criminal charge shall be or
a juvenile facing a charge that would be a crime if committed by an
adult is presumed competent to stand trial. He or she shall be
determined incompetent to stand trial only if he or she is
incapable because of his or her mental condition, regardless of his
or her age, of understanding the nature and object of the
proceedings against him or her or of assisting in his or her
defense in a rational manner. The court shall determine the
capacity of a defendant or juvenile to assist in his or her defense
by his or her ability to perform the tasks reasonably necessary for
him or her to perform in the preparation of his or her defense and
during his or her trial.
(2) A defendant or juvenile shall not be determined
incompetent to stand trial because psychotropic drugs or other
medication have been or are being administered under proper medical
direction,
and even though without such the medication the
defendant or juvenile might be incompetent to stand trial. However,
when
if the defendant or juvenile is receiving such medication,
the
court may, prior to before making its determination on the
issue of incompetence to stand trial, require the filing of a
statement
by the treating physician that such the medication will
not adversely affect the defendant's or juvenile's understanding of
the proceedings or his or her ability to assist in his or her
defense.
Sec. 1022. (1) A defendant or juvenile who is determined
incompetent to stand trial shall not be proceeded against while he
or she is incompetent.
(2)
Any A pretrial motion may be made by either the
defense, the juvenile, the juvenile's attorney, the guardian ad
litem, the court, or the prosecution while a defendant or juvenile
is incompetent to stand trial, and the issues presented by the
motion shall be heard and decided if the presence of the defendant
or juvenile is not essential for a fair hearing and decision on the
motion.
(3)
When it appears If the
court determines that evidence
essential to the case the defense, juvenile, or prosecution plans
to present might not be available at the time of trial, the court
shall
allow such that evidence to be taken and preserved.
Evidence
so taken shall be that evidence is admissible at the
trial only if it is not otherwise available or by stipulation of
the
parties. Procedures for the taking
and preserving of
evidence
under this subsection, and the conditions under which
such
that evidence shall be is
admissible at trial, shall be
provided by court rule.
Sec. 1024. The issue of incompetence to stand trial may be
raised by the defense, the juvenile, the court, or the prosecution.
The time and form of the procedure for raising the issue shall be
provided by court rule.
Sec. 1026. (1) Upon a showing that the defendant or juvenile
may be incompetent to stand trial, the court shall order the
defendant or juvenile to undergo an examination by personnel of
either the center for forensic psychiatry or other facility
officially
certified by the department of mental health to
perform examinations relating to the issue of incompetence to stand
trial. The defendant or juvenile shall make himself or herself
available for the examination at the places and times established
by the center or other certified facility. If the defendant or
juvenile, after being notified, fails to make himself or herself
available for the examination, the court may order his or her
commitment to the center or other facility without a hearing.
(2)
When If the defendant or juvenile is to be held
in a
jail or similar place of detention pending trial, the center or
other facility may perform the examination in the jail or similar
place of detention or may notify the sheriff to transport the
defendant or juvenile to the center or other facility for the
examination. ,
and the The sheriff shall return the defendant or
juvenile to the jail or similar place of detention upon completion
of the examination.
(3)
Except as provided in subsection (1), when if the
defendant or juvenile is not to be held in a jail or similar place
of detention pending trial, the court shall commit him or her to
the
center or other facility only when if the commitment is
necessary
for the performance of to
perform the examination.
(4) The defendant or juvenile shall be released by the center
or other facility upon completion of the examination.
Sec.
1028. (1) When If the defendant or juvenile is ordered
to
undergo an examination pursuant to under section 1026, the
center or other facility shall, for the purpose of gathering
psychiatric and other information pertinent to the issue of the
incompetence of the defendant or juvenile to stand trial, examine
the
defendant or juvenile and consult with defense counsel for
the defense or the juvenile, and may consult with the prosecutor or
other
persons. Defense counsel Counsel
for the defense or
juvenile shall make himself or herself available for consultation
with the center or other facility. The examination shall be
performed,
defense counsel for the
defense or juvenile consulted,
and a written report submitted to the court, prosecuting attorney,
and
defense counsel for the
defense or juvenile within 60 days of
the date of the order.
(2) The report shall contain at least all of the following:
(a) The clinical findings of the center or other facility.
(b) The facts, in reasonable detail, upon which the findings
are based, and upon request of the court, counsel for the defense
or
juvenile, or prosecution additional
facts germane relevant to
the findings.
(c) The opinion of the center or other facility on the issue
of
the incompetence of whether the defendant or juvenile is
incompetent to stand trial.
(d) If the opinion is that the defendant or juvenile is
incompetent to stand trial, the opinion of the center or other
facility
on the likelihood of the defendant attaining or juvenile
will attain competence to stand trial, if provided a course of
treatment, within the time limit established by section 1034.
(3) The opinion concerning competency to stand trial derived
from the examination may not be admitted as evidence for any
purpose in the pending criminal or juvenile proceedings, except on
the issues to be determined in the hearings required or permitted
by
sections 1030 and 1040. The foregoing A bar of testimony
shall
not be construed to under this subsection does not prohibit
the examining qualified clinician from presenting at other stages
in the criminal or juvenile proceedings opinions concerning
criminal responsibility, disposition, or other issues if they were
originally requested by the court and are available. Information
gathered in the course of a prior examination that is of historical
value
to the examining qualified clinician may be utilized in the
formulation
of formulating an opinion in any
a subsequent court
ordered evaluation.
Sec. 1030. (1) Upon receipt of the written report, the court
shall
cause order the defendant or juvenile to appear in
court
and shall hold a hearing within 5 days or upon the conclusion of
the case, proceeding, or other matter then before it, whichever is
sooner, unless the defense, counsel for the juvenile, or the
prosecution for good cause requests a delay for a reasonable time.
(2) On the basis of the evidence admitted at the hearing, the
court
shall determine the issue of the incompetence of whether
the defendant or juvenile is incompetent to stand trial. If the
defendant or juvenile is determined incompetent to stand trial, the
court shall also determine whether there is a substantial
probability that the defendant or juvenile, if provided a course of
treatment, will attain competence to stand trial within the time
limit established by section 1034.
(3)
The written report shall be admissible as competent
evidence in the hearing, unless the defense, counsel for the
juvenile, or the prosecution objects, but not for any other purpose
in the pending criminal or juvenile proceeding. The defense,
counsel for the juvenile, the prosecution, and the court on its own
motion may present additional evidence relevant to the issues to be
determined at the hearing.
(4) If the defendant or juvenile is receiving medication and
is not determined incompetent to stand trial, the court may, in
order to maintain the competence of the defendant or juvenile to
stand
trial, make such orders as it deems issue an order the
court
considers appropriate for the continued
administration of
such
medication pending and during
trial.
Sec. 1031. If the defendant or juvenile is determined
incompetent
to stand trial , and if the court determines that
there is not a substantial probability that, if provided a course
of treatment, he or she will attain competence to stand trial
within the time limit established by section 1034, the court may
direct a prosecuting attorney to file a petition asserting that the
defendant is a person requiring treatment as defined by section 401
or meets the criteria for judicial admission as defined by section
515 or that the juvenile is a minor requiring treatment as defined
in section 498b with the probate court of the defendant's or
juvenile's county of residence.
Sec. 1032. (1) If the defendant or juvenile is determined
incompetent to stand trial, and if the court determines that there
is a substantial probability that, if provided a course of
treatment, he or she will attain competence to stand trial within
the
time limit established by section 1034, the court shall order
him
the defendant or juvenile to
undergo treatment to render him
or her competent to stand trial.
(2) The court shall appoint a medical supervisor of the course
of treatment. The supervisor may be the department or any person or
agency
willing to supervise the course of treatment. , or the
department
of mental health.
(3) The court may commit the defendant or juvenile to the
custody
of the department, of mental health, or to the custody of
any other inpatient mental health facility if it agrees, only if
commitment is necessary for the effective administration of the
course of treatment. If the defendant or juvenile, absent
commitment
to the department of mental health or other inpatient
facility, would otherwise be held in a jail or similar place of
detention pending trial, the court may enter an order restricting
the
defendant in his defendant's
or juvenile's movements to the
buildings and grounds of the facility at which he or she is to be
treated.
Sec.
1034. (1) No An order or combination of orders issued
under section 1032 or 1040, or both, shall not have force and
effect for a total period in excess of 15 months or 1/3 of the
maximum sentence the defendant could receive if convicted of the
charges against him or her, or 1/3 of the maximum sentence the
juvenile
could have received if convicted as an adult, whichever is
lesser;
nor less. An order or combination of orders issued under
section 1032 or 1040, or both, shall not have force and effect
after the charges against the defendant or juvenile are dismissed.
(2) The court shall provide for notification of defense
counsel, the juvenile's counsel, the prosecution, and the medical
supervisor
of treatment whenever when the charges against the
defendant or juvenile are dismissed and whenever when an order
whose stated time period has not elapsed is voided by the court.
(3) If the defendant or juvenile is to be discharged or
released because of the expiration of an order or orders under
section
1032 or 1040, the supervisor of treatment prior to before
the discharge or release may file a petition asserting that the
defendant is a person requiring treatment as defined by section
401, or
that the defendant meets the criteria for judicial
admission as defined by section 515, or that the juvenile is a
minor requiring treatment as defined in section 498b, with the
probate court of the defendant's or juvenile's county of residence.
Sec.
1036. The defendant's or
juvenile's right of the
defendant
to be at liberty pending trial, on
bail or otherwise,
shall not be impaired because the issue of incompetence to stand
trial has been raised, because the defendant or juvenile has been
determined incompetent to stand trial, or because the defendant or
juvenile has been ordered to undergo treatment to render him or her
competent to stand trial, except to the extent authorized by
section 1026 for the purpose of an examination or by section 1032
for the purpose of administering a course of treatment.
Sec. 1038. (1) The medical supervisor of treatment shall
transmit a written report to the court, prosecuting attorney,
defense counsel, the juvenile's counsel, and the center for
forensic psychiatry in each of the following instances:
(a) At least once every 90 days from the date of an order
issued
pursuant to under section 1032.
(b)
Whenever If he or
she is of the opinion that the
defendant or juvenile is no longer incompetent to stand trial.
(c)
Whenever If he or
she is of the opinion that there is
not a substantial probability that the defendant or juvenile, with
treatment, will attain competence to stand trial within the time
limit established by section 1034.
(2)
The reports shall be admissible pursuant to under
section 1030(3) and shall contain all of the following:
(a) The clinical findings of the supervisor of treatment.
(b) The facts, in reasonable detail, upon which the findings
are
based, and upon request of the court, defense, or prosecution
any additional facts germane relevant
to the findings if
requested by court, defense counsel, juvenile's counsel, or
prosecution.
(c) The opinion of the supervisor of treatment on the issue of
the incompetence of the defendant or juvenile to stand trial.
(d) If the opinion is that the defendant or juvenile is
incompetent to stand trial, the opinion of the supervisor of
treatment on whether the defendant or juvenile has made progress
toward attaining competence to stand trial during the course of
treatment.
Sec. 1040. (1) The court shall forthwith hear and redetermine
the issue of the incompetence of the defendant or juvenile to stand
trial. and,
if If the defendant or juvenile is redetermined
incompetent to stand trial, the court shall hear and determine
whether the defendant or juvenile has made progress toward
attaining competence to stand trial during his or her course of
treatment,
whenever if the court receives a report from the
supervisor of treatment, unless the defense or juvenile waives the
hearing,
or whenever deemed when
considered appropriate by the
court.
(2)
Section 1030 shall govern governs hearings held
pursuant
to under this section.
(3) If the defendant or juvenile is not redetermined
incompetent
to stand trial at a hearing held pursuant to under
this section, trial shall commence as soon as practicable. If the
defendant or juvenile is redetermined incompetent to stand trial,
and if the court determines that the defendant or juvenile has made
progress toward attaining competence to stand trial, the court may
modify or continue any orders it previously issued under section
1032.
Sec.
1042. Time spent in custody because of orders issued
pursuant
to under sections 1026, 1032,
and 1040 shall be credited
against any sentence or disposition imposed on the defendant or
juvenile in the pending criminal case or in any other case arising
from the same transaction.
Sec. 1044. (1) The charges against a defendant or juvenile
determined incompetent to stand trial shall be dismissed if either
of the following applies:
(a)
When the The prosecutor notifies the court of his or her
intention
not to prosecute the case. ; or
(b)
Fifteen months after have
elapsed since the date on
which the defendant or juvenile was originally determined
incompetent to stand trial.
(2)
When If charges are dismissed pursuant to under
subsection (1), the same charges, or other charges arising from the
transaction
which that gave rise to the dismissed charges, shall
not subsequently be filed against the defendant or juvenile, except
as provided in this section.
(3)
If the charges were dismissed pursuant to under
subsection (1)(b) and if the crime charged was punishable by a
sentence of life imprisonment, or, in the case of a juvenile, would
have been a crime punishable by a sentence of life imprisonment if
committed by an adult, the prosecutor may at any time petition the
court for permission to again file charges. In the case of other
charges
dismissed pursuant to under subsection (1)(b), the
prosecutor may, within that period of time after the charges were
dismissed equal to 1/3 of the maximum sentence that the defendant
could receive on the charges or that a juvenile could have received
if convicted as an adult, petition the court for permission to
again file charges.
(4) The court shall grant permission to again file charges if
after a hearing it determines that the defendant or juvenile is
competent
to stand trial. Prior to Before the hearing, the court
may order the defendant or juvenile to be examined by personnel of
the center for forensic psychiatry or other qualified person as an
outpatient, but may not commit the defendant or juvenile to the
center or any other facility for the examination.
Sec.
1050. (1) The court shall immediately commit any person
a juvenile found not responsible by reason of insanity for an
offense that would be a crime if committed by an adult or an
individual who is acquitted of a criminal charge by reason of
insanity
to the custody of the center for forensic psychiatry, for
a
period not to exceed not more than 60 days. The court shall
forward to the center a full report, in the form of a settled
record,
of the facts concerning the crime which that the patient
was found to have committed but of which he or she was acquitted or
found not responsible for by reason of insanity. The center shall
thoroughly examine and evaluate the patient's present mental
condition
of the person in order to reach an opinion on whether
the
person patient meets the criteria of a person requiring
treatment or for judicial admission set forth in section 401 or 515
or is a minor requiring treatment as defined in section 498b.
(2) Within the 60-day period the center shall file a report
with the court, prosecuting attorney, juvenile's counsel, and
defense
counsel. The report shall contain a summary of the crime
which
that the patient committed
but of which he or she was
acquitted or found not responsible for by reason of insanity and an
opinion
as to whether the person patient meets the criteria of a
person requiring treatment or for judicial admission as defined by
section 401 or 515 or is a minor requiring treatment as defined by
section 498b, and the facts upon which the opinion is based. If the
opinion
stated is states that the person patient
is a person
requiring treatment, the report shall be accompanied by
certificates from 2 physicians, at least 1 of whom shall be a
psychiatrist,
which that conform to the requirements of section
400(j)
100c(10). If the opinion stated is that the patient is
a
minor requiring treatment, the report shall be accompanied by an
evaluation from a psychiatrist that conforms to the requirements of
section 498g.
(3)
After receipt of receiving the report, the court may
direct
the prosecuting attorney to file a petition pursuant to
under section 434 or 516 for an order of hospitalization or an
order
of admission to a facility with the probate court of the
person's
patient's county of
residence or of the county in which
the
criminal trial was held. Any certificates A certificate that
accompanied the report of the center may be filed with the
petition,
and shall be is sufficient to cause a hearing to be
held
pursuant to under section 451 even if they were that
certificate
was not executed within 72 hours of
the filing of
after the petition was filed. An evaluation supporting the opinion
that the patient is a minor requiring treatment is sufficient to
support hospitalization under section 498f. The report from the
court containing the facts concerning the crime for which he or she
was acquitted by reason of insanity shall be admissible in the
hearings. The report from the court containing the facts of the
crime for which he or she was found not responsible by reason of
insanity shall be considered in determining whether the minor
should be hospitalized and determining the treatment to be
provided.
(4)
If the report states the opinion that the person
patient meets the criteria of a person requiring treatment, or
meets the criteria for judicial admission, or meets the criteria of
a
minor requiring hospitalization, and if
a petition is to be filed
pursuant
to under subsection (3), the
center may retain the
person
patient pending a hearing on
the petition or the minor's
transfer to a hospital. If a petition is not to be filed or the
prosecution does not seek hospitalization of the patient as a minor
requiring treatment, the prosecutor shall notify the center in
writing.
The center, upon receipt of receiving the notification,
shall
cause the person to be discharged discharge the patient.
(5)
The release provisions of sections 476 to 479 of this act
shall
apply to a person found to have
committed a crime by a court
or jury, but who is acquitted by reason of insanity, except that a
person shall not be discharged or placed on leave without first
being evaluated and recommended for discharge or leave by the
department's
program for forensic psychiatry. , and authorized
Authorized leave or absence from the hospital may be extended for a
period of 5 years.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 93rd Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 4213(request no.
00138'05).
(b) Senate Bill No.____ or House Bill No. 4215(request no.
00140'05).