CSSB 53(FIN): "An Act relating to competency to stand trial; relating to involuntary civil commitments; and relating to victims' rights during certain civil commitment proceedings."
00 CS FOR SENATE BILL NO. 53(FIN) 01 "An Act relating to competency to stand trial; relating to involuntary civil 02 commitments; and relating to victims' rights during certain civil commitment 03 proceedings." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 12.47.070(a) is amended to read: 06 (a) If a defendant has filed a notice of intention to rely on the affirmative 07 defense of insanity under AS 12.47.010 or has filed notice under AS 12.47.020(a), or 08 there is reason to doubt the defendant's fitness to proceed, or there is reason to believe 09 that a mental disease or defect of the defendant will otherwise become an issue in the 10 case, the court shall appoint a qualified psychiatrist or psychologist [AT LEAST 11 TWO QUALIFIED PSYCHIATRISTS OR TWO FORENSIC PSYCHOLOGISTS 12 CERTIFIED BY THE AMERICAN BOARD OF FORENSIC PSYCHOLOGY] to 13 examine and report on [UPON] the mental condition of the defendant. If the court 14 appoints a psychiatrist [PSYCHIATRISTS], the psychiatrist [PSYCHIATRISTS]
01 may select psychologists to provide assistance. If the defendant has filed notice under 02 AS 12.47.090(a), the report shall consider whether the defendant can still be 03 committed under AS 12.47.090(c). The court may order the defendant to be committed 04 to a secure facility for the purpose of the examination for not more than 60 days or for 05 a [SUCH] longer period as the court determines to be necessary for the purpose and 06 may direct that a qualified psychiatrist retained by the defendant be permitted to 07 witness and participate in the examination. 08 * Sec. 2. AS 12.47.100(b) is amended to read: 09 (b) If, before imposition of sentence, the prosecuting attorney or the attorney 10 for the defendant has reasonable cause to believe that the defendant is presently 11 suffering from a mental disease or defect that causes the defendant to be unable to 12 understand the proceedings or to assist in the person's own defense, the attorney may 13 file a motion for a judicial determination of the competency of the defendant. Upon 14 that motion, or upon its own motion, the court, after making findings of fact and 15 conclusions of law that justify an examination, shall have the defendant examined 16 by at least one qualified psychiatrist or psychologist, who shall report to the court 17 concerning the competency of the defendant. For the purpose of the examination, the 18 court may order the defendant committed for a reasonable period to a suitable hospital 19 or other facility designated by the court. If the report of the psychiatrist or 20 psychologist indicates that the defendant is incompetent, the court shall hold a hearing, 21 upon due notice, at which evidence as to the competency of the defendant may be 22 submitted, including that of the reporting psychiatrist or psychologist, and make 23 appropriate findings. Before the hearing, the court shall, upon request of the 24 prosecuting attorney, order the defendant to submit to an additional evaluation by a 25 psychiatrist or psychologist designated by the prosecuting attorney. 26 * Sec. 3. AS 12.47.100 is amended by adding new subsections to read: 27 (i) The court may order a defendant to be examined under this section at an 28 outpatient clinic or other facility as a condition of the defendant's release under 29 AS 12.30. In considering the conditions of a defendant's release under this subsection, 30 the court shall, in addition to any applicable requirement under AS 12.30, consider 31 (1) any medical information provided by the Department of Family
01 and Community Services; 02 (2) the defendant's mental condition; 03 (3) the defendant's level of need for evaluation and treatment under 04 this chapter; 05 (4) the defendant's ability to participate in outpatient treatment; and 06 (5) the defendant's history of evaluation and treatment under this 07 chapter. 08 (j) If the defendant is charged with a felony offense against a person under 09 AS 11.41 or felony arson, a qualified psychiatrist or psychologist conducting an 10 examination under (b) of this section may, at the same time, evaluate the defendant to 11 determine whether the defendant meets the standards for involuntary commitment 12 under AS 47.30.700 - 47.30.915. 13 (k) In making findings of fact and conclusions of law under (b) of this section, 14 a court may rely on a defense attorney's representation, including privileged 15 information provided at an ex parte hearing. 16 * Sec. 4. AS 12.47.110 is amended by adding new subsections to read: 17 (f) The court may order a defendant to receive further evaluation and 18 treatment under (a) or (b) of this section at an outpatient clinic or other facility as a 19 condition of the defendant's release under AS 12.30. In considering the conditions of a 20 defendant's release under this subsection, the court shall, in addition to any applicable 21 requirement under AS 12.30, consider 22 (1) any medical information provided by the Department of Family 23 and Community Services; 24 (2) the defendant's mental condition; 25 (3) the defendant's level of need for evaluation and treatment under 26 this chapter; 27 (4) the defendant's ability to participate in outpatient treatment; and 28 (5) the defendant's history of evaluation and treatment under this 29 chapter. 30 (g) Before criminal charges against a defendant charged with a felony offense 31 against a person under AS 11.41 or felony arson are dismissed under (b) of this
01 section, the prosecutor shall 02 (1) file a petition seeking involuntary commitment of the defendant 03 under AS 47.30.706 before dismissal of the charges; 04 (2) notify the division of the Department of Law that has responsibility 05 for civil cases of the petition within 24 hours after filing the petition; and 06 (3) provide the court's findings to the division of the Department of 07 Law that has responsibility for civil cases within 24 hours after the court's ruling. 08 * Sec. 5. AS 47.30 is amended by adding a new section to read: 09 Sec. 47.30.706. Commitment after finding of incompetence. (a) If a person 10 who has been charged with a felony offense against a person under AS 11.41 or felony 11 arson has been found incompetent to proceed under AS 12.47, before the charges are 12 dismissed, an attorney with the Department of Law shall petition a court to have the 13 person delivered to the nearest evaluation facility for an evaluation under 14 AS 47.30.710. 15 (b) Upon receiving a petition under (a) of this section, a court shall, unless the 16 presumption in (d) of this section has been successfully rebutted, issue an ex parte 17 order orally or in writing stating that there is probable cause to believe the respondent 18 is mentally ill and that condition causes the respondent to present a likelihood of 19 serious harm to self or others. The court shall appoint an attorney to represent the 20 respondent and may direct that a peace officer take the respondent into custody and 21 deliver the respondent to the nearest appropriate facility for evaluation. The ex parte 22 order shall be provided to the respondent and made a part of the respondent's clinical 23 record. The court shall set a date, time, and place for a 30-day commitment hearing, to 24 be held within 72 hours. The court shall confirm an oral order in writing within 24 25 hours after it is issued. 26 (c) A person taken into custody for evaluation under this section may not be 27 placed in a jail or other correctional facility except for protective custody purposes and 28 only while awaiting transportation to an evaluation facility. 29 (d) A defendant charged with a felony offense against a person under 30 AS 11.41 or felony arson and found to be incompetent to proceed under AS 12.47.100 31 is rebuttably presumed to be mentally ill and to present a likelihood of serious harm to
01 self or others. In evaluating whether a defendant is likely to cause serious harm, the 02 court may consider as recent behavior the conduct with which the defendant was 03 originally charged. 04 * Sec. 6. AS 47.30.710(a) is amended to read: 05 (a) A respondent who is delivered under AS 47.30.700 - 47.30.706 06 [AS 47.30.700 - 47.30.705] to an evaluation facility for [EMERGENCY] examination 07 and treatment shall be examined and evaluated as to mental and physical condition by 08 a mental health professional and by a physician within 24 hours after arrival at the 09 facility. 10 * Sec. 7. AS 47.30.725 is amended by adding new subsections to read: 11 (g) If a criminal charge of a felony offense against a person under AS 11.41 or 12 felony arson against a respondent has been dismissed under AS 12.47.110 and the 13 respondent is detained for evaluation or committed under AS 47.30.700 - 47.30.915, 14 (1) the Department of Law shall notify a victim in the dismissed 15 criminal case 16 (A) of the time and place of a hearing under AS 47.30.700 - 17 47.30.915; 18 (B) of the length of time for which the respondent is committed 19 and findings of fact made by the court; and 20 (C) when the respondent is discharged from commitment; and 21 (2) a victim in the dismissed criminal case may attend a hearing under 22 AS 47.30.700 - 47.30.915. 23 (h) Subsection (g) of this section may not be construed to give a victim in a 24 dismissed criminal case the right to access a record that is confidential under 25 AS 47.30.845. 26 * Sec. 8. AS 47.30 is amended by adding a new section to read: 27 Sec. 47.30.727. Provision of records and notice following a finding of 28 incompetency in a criminal case. (a) Within 30 days after a respondent has been 29 found incompetent to proceed under AS 12.47.110 and committed under AS 47.30.700 30 - 47.30.915, and every 30 days thereafter until the civil commitment case has 31 concluded, the division of the Department of Law that has responsibility for civil cases
01 shall provide all information and records obtained during the civil commitment to the 02 division of the Department of Law that has responsibility for criminal cases. 03 (b) Records disclosed to the division of the Department of Law that has 04 responsibility for criminal cases under (a) of this section are confidential and may not 05 be disclosed to anyone unless disclosure is required by a court order or the respondent 06 provides written consent to the disclosure. If the records are used in the criminal 07 proceeding, the moving party shall file the records as sealed documents. 08 (c) A facility housing a respondent found incompetent to proceed under 09 AS 12.47.110 and committed under AS 47.30.700 - 47.30.915 shall provide notice to 10 the prosecutor in the criminal case of all hearings scheduled by the court in the civil 11 commitment case. The prosecutor, or a staff member of the prosecutor's office, may 12 attend a hearing in the civil commitment case but may not participate in the hearing as 13 a party. 14 * Sec. 9. AS 47.30.735(b) is amended to read: 15 (b) The hearing shall be conducted in a physical setting least likely to have a 16 harmful effect on the mental or physical health of the respondent, within practical 17 limits. At the hearing, in addition to other rights specified in AS 47.30.660 - 18 47.30.915, the respondent has the right 19 (1) to be present at the hearing; this right may be waived only with the 20 respondent's informed consent; if the respondent is incapable of giving informed 21 consent, the respondent may be excluded from the hearing only if the court, after 22 hearing, finds that the incapacity exists and that there is a substantial likelihood that 23 the respondent's presence at the hearing would be severely injurious to the 24 respondent's mental or physical health; 25 (2) to view and copy all petitions and reports in the court file of the 26 respondent's case; 27 (3) to have the hearing open or closed to the public as the respondent 28 elects, except that, if the respondent was charged with a felony offense against a 29 person under AS 11.41 or felony arson and the criminal case was dismissed under 30 AS 12.47.110, an alleged victim in the dismissed criminal case may attend the 31 hearing;
01 (4) to have the rules of evidence and civil procedure applied so as to 02 provide for the informal but efficient presentation of evidence; 03 (5) to have an interpreter if the respondent does not understand 04 English; 05 (6) to present evidence on the respondent's behalf; 06 (7) to cross-examine witnesses who testify against the respondent; 07 (8) to remain silent; 08 (9) to call experts and other witnesses to testify on the respondent's 09 behalf. 10 * Sec. 10. AS 47.30 is amended by adding a new section to read: 11 Sec. 47.30.771. Additional two-year commitment. (a) The respondent shall 12 be released from involuntary treatment at the expiration of 180 days unless the 13 professional person in charge or the attorney general's office files an additional 180- 14 day petition or a petition for a commitment of up to two years conforming to the 15 requirements of AS 47.30.740(a) except that all references to "30-day commitment" 16 shall be read as "the previous 180-day commitment" and all references to "90-day 17 commitment" shall be read as "two-year commitment." 18 (b) The procedures for service of the petition, notification of rights, and 19 judicial hearing shall be as set out in AS 47.30.740 - 47.30.750. Following a 180-day 20 commitment of a respondent, the court may order the respondent committed for an 21 additional treatment period not to exceed two years from the date on which the 180- 22 day treatment period would have expired if the court or jury finds by clear and 23 convincing evidence that 24 (1) the respondent is mentally ill and as a result is likely to cause 25 serious harm to self or others; 26 (2) the respondent has a criminal history that includes a felony offense 27 against a person under AS 11.41 or felony arson, including an offense for which the 28 respondent was found incompetent to stand trial under AS 12.47.100 and 12.47.110; 29 (3) the respondent has been found incompetent to stand trial under 30 AS 12.47.100 and 12.47.110 for a felony offense against a person under AS 11.41 or 31 felony arson;
01 (4) commitment of the respondent for greater than 180 days but not 02 greater than two years is necessary to protect the public; and 03 (5) the period of commitment is necessary to protect the public. 04 (c) Findings of fact relating to the respondent's behavior made at a 30-day 05 commitment hearing under AS 47.30.735, a 90-day commitment hearing under 06 AS 47.30.750, a 180-day commitment hearing under AS 47.30.770, or a two-year 07 commitment hearing under this section shall be admitted as evidence and may not be 08 rebutted except that newly discovered evidence may be used for the purpose of 09 rebutting the findings. 10 (d) Successive commitments are permissible on the same ground and under 11 the same procedures as the original commitment. An order of commitment may not 12 exceed two years. 13 (e) The department shall, by January 30 of each year, submit to the attorney 14 general, public defender, public advocate, Alaska Court System, and the attorney of 15 record for the respondent, if any, a report that details how many respondents are 16 committed under this section and how much time remains on each order of 17 commitment. 18 * Sec. 11. AS 47.30.780(a) is amended to read: 19 (a) Except as provided in (b) and (c) of this section, the professional person in 20 charge shall at any time discharge a respondent on the ground that the respondent is no 21 longer gravely disabled or likely to cause serious harm as a result of mental illness. A 22 certificate to this effect shall be sent to the court, which shall enter an order officially 23 terminating the involuntary commitment. 24 * Sec. 12. AS 47.30.780 is amended by adding new subsections to read: 25 (c) If a respondent committed under AS 47.30.770 or 47.30.771 has a criminal 26 history that includes a felony offense against a person under AS 11.41 or felony arson, 27 including an offense for which the respondent was found incompetent to stand trial 28 under AS 12.47.100 and 12.47.110, the professional person in charge may not 29 discharge the respondent under (a) of this section unless the court enters an order 30 officially terminating the involuntary commitment. The court shall give the 31 prosecuting authority 10 days' notice before the professional person in charge may
01 discharge a respondent under this subsection. 02 (d) Except as provided in (e) of this section, a respondent committed under 03 AS 47.30.771 may petition the court for early discharge at any time during the 04 commitment if the respondent presents some evidence demonstrating that the 05 respondent is no longer likely to cause serious harm to self or others. The court shall 06 grant early discharge unless the state proves by clear and convincing evidence that 07 there is a factual and medical basis to believe the respondent remains likely to cause 08 serious harm to self or others. 09 (e) A respondent may not file a petition for early discharge within 180 days 10 after the date the court enters an initial commitment order or a final order ruling on a 11 previous petition for early discharge. 12 * Sec. 13. AS 47.30.805(a) is amended to read: 13 (a) Except as provided in (b) of this section, 14 (1) computations of a 72-hour [EVALUATION] period under 15 AS 47.30.706, 47.30.708, [AS 47.30.708] or 47.30.715 or a 48-hour [DETENTION] 16 period under AS 47.30.685 do not include Saturdays, Sundays, legal holidays, or any 17 period of time necessary to transport the respondent to the treatment facility, except 18 that if the exclusion of Saturdays, Sundays, and legal holidays from the computation 19 of a 72-hour evaluation period or 48-hour detention period would result in the 20 respondent being held for longer than 72 hours or 48 hours, as applicable, the period 21 ends at 5:00 p.m. on the next day that is not a Saturday, Sunday, or legal holiday; 22 (2) a seven-day detention at a crisis residential center expires at the end 23 of the seventh day following the respondent's arrival at the crisis stabilization center or 24 the crisis residential center, whichever is earlier; 25 (3) a 30-day commitment period expires at the end of the 30th day 26 after the 72 hours following initial acceptance; 27 (4) a 90-day commitment period expires at the end of the 90th day 28 after the expiration of a 30-day period of treatment; 29 (5) a 180-day commitment period expires at the end of the 180th day, 30 after the expiration of a 90-day period of treatment or previous 180-day period, 31 whichever is applicable;
01 (6) a two-year commitment period expires not later than two years 02 after the expiration of a 180-day period of treatment. 03 * Sec. 14. AS 47.30.845 is amended to read: 04 Sec. 47.30.845. Confidential records. Information and records obtained in the 05 course of a screening investigation, evaluation, examination, or treatment are 06 confidential and are not public records, except as the requirements of a hearing under 07 AS 47.30.660 - 47.30.915 may necessitate a different procedure. Information and 08 records may be copied and disclosed under regulations established by the department 09 only to 10 (1) a physician or a provider of health, mental health, or social and 11 welfare services involved in caring for, treating, or rehabilitating the patient; 12 (2) the patient or an individual to whom the patient has given written 13 consent to have information disclosed; 14 (3) a person authorized by a court order; 15 (4) a person doing research or maintaining health statistics if the 16 anonymity of the patient is assured and the facility recognizes the project as a bona 17 fide research or statistical undertaking; 18 (5) the Department of Corrections in a case in which a prisoner 19 confined to the state prison is a patient in the state hospital on authorized transfer 20 either by voluntary admission or by court order; 21 (6) a governmental or law enforcement agency when necessary to 22 secure the return of a patient who is on unauthorized absence from a facility where the 23 patient was undergoing evaluation or treatment; 24 (7) a law enforcement agency when there is substantiated concern over 25 imminent danger to the community by a presumed mentally ill person; 26 (8) the department in a case in which services provided under 27 AS 47.30.660 - 47.30.915 are paid for, in whole or in part, by the department or in 28 which a person has applied for or has received assistance from the department for 29 those services; 30 (9) the Department of Public Safety as provided in AS 47.30.907; 31 information provided under this paragraph may not include diagnostic or clinical
01 information regarding a patient; 02 (10) the division of the Department of Law that has responsibility 03 for criminal cases as provided in AS 47.30.727.