CSSB 53(FIN) am: "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) am 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 47.30.705 is amended by adding new subsections to read: 09 (e) The department shall promptly transport a person who is detained at a 10 medical or other facility, including a correctional facility under (a) of this section or 11 AS 47.30.706, to a crisis residential center or evaluation facility for an evaluation 12 under AS 47.30.715. The person may not be detained for more than 10 days while 13 awaiting transportation to a crisis residential center or evaluation facility unless a court 14 extends the detention under (f) of this section. 15 (f) The department or a facility detaining a person under (a) or (e) of this 16 section may file a request to extend the detention based on the person continuing to 17 meet the standards for commitment under AS 47.30.700 and the need for a continued 18 hold. The request must be supported by the verified or certified statement of a mental 19 health professional and be served on the respondent, the respondent's attorney, and the 20 division of the Department of Law that has responsibility for civil cases. When the 21 court decides a request to extend the detention pending transportation, the court shall 22 consider the following factors: 23 (1) the length of time the person has been detained; 24 (2) the reason the person has not yet been transported; 25 (3) the person's current medical and psychiatric condition; 26 (4) whether the person is gravely disabled or is likely to cause serious 27 harm to self or others; and 28 (5) whether the person is receiving treatment at their current 29 placement. 30 (g) If requested by the respondent, the court shall schedule a hearing to decide 31 a request to extend detention under (f) of this section. The hearing shall be held not
01 later than 72 hours after expiration of the 10-day detention period. If a hearing is held 02 after expiration of the 10-day detention period, the detention shall be extended until 03 the hearing. 04 (h) Regardless of whether a request to extend the respondent's detention has 05 been filed, if at any time in the course of the detention a mental health professional at 06 the detaining facility determines that the person does not meet the standards for 07 commitment under AS 47.30.700, the respondent shall be released and the facility 08 shall notify the petitioner, the respondent's attorney, the division of the Department of 09 Law that has responsibility for civil cases, and the court. 10 * Sec. 6. AS 47.30 is amended by adding a new section to read: 11 Sec. 47.30.706. Commitment after finding of incompetence. (a) If a person 12 who has been charged with a felony offense against a person under AS 11.41 or felony 13 arson has been found incompetent to proceed under AS 12.47, before the charges are 14 dismissed, an attorney with the Department of Law shall petition a court to have the 15 person delivered to the nearest evaluation facility for an evaluation under 16 AS 47.30.710. 17 (b) Upon receiving a petition under (a) of this section, a court shall, unless the 18 presumption in (d) of this section has been successfully rebutted, issue an ex parte 19 order orally or in writing stating that there is probable cause to believe the respondent 20 is mentally ill and that condition causes the respondent to present a likelihood of 21 serious harm to self or others. The court shall appoint an attorney to represent the 22 respondent and may direct that a peace officer take the respondent into custody and 23 deliver the respondent to the nearest appropriate facility for evaluation. The ex parte 24 order shall be provided to the respondent and made a part of the respondent's clinical 25 record. The court shall set a date, time, and place for a 30-day commitment hearing, to 26 be held within 72 hours. The court shall confirm an oral order in writing within 24 27 hours after it is issued. 28 (c) A person taken into custody for evaluation under this section may not be 29 placed in a jail or other correctional facility except for protective custody purposes and 30 only while awaiting transportation to an evaluation facility. 31 (d) A defendant charged with a felony offense against a person under
01 AS 11.41 or felony arson and found to be incompetent to proceed under AS 12.47.100 02 is rebuttably presumed to be mentally ill and to present a likelihood of serious harm to 03 self or others. In evaluating whether a defendant is likely to cause serious harm, the 04 court may consider as recent behavior the conduct with which the defendant was 05 originally charged. 06 * Sec. 7. AS 47.30.710(a) is amended to read: 07 (a) A respondent who is delivered under AS 47.30.700 - 47.30.706 08 [AS 47.30.700 - 47.30.705] to an evaluation facility for [EMERGENCY] examination 09 and treatment shall be examined and evaluated as to mental and physical condition by 10 a mental health professional and by a physician within 24 hours after arrival at the 11 facility. 12 * Sec. 8. AS 47.30.725 is amended by adding new subsections to read: 13 (g) If a criminal charge of a felony offense against a person under AS 11.41 or 14 felony arson against a respondent has been dismissed under AS 12.47.110 and the 15 respondent is detained for evaluation or committed under AS 47.30.700 - 47.30.915, 16 (1) the Department of Law shall notify a victim in the dismissed 17 criminal case 18 (A) of the time and place of a hearing under AS 47.30.700 - 19 47.30.915; 20 (B) of the length of time for which the respondent is committed 21 and findings of fact made by the court; and 22 (C) when the respondent is discharged from commitment; and 23 (2) a victim in the dismissed criminal case may attend a hearing under 24 AS 47.30.700 - 47.30.915. 25 (h) Subsection (g) of this section may not be construed to give a victim in a 26 dismissed criminal case the right to access a record that is confidential under 27 AS 47.30.845. 28 * Sec. 9. AS 47.30 is amended by adding a new section to read: 29 Sec. 47.30.727. Provision of records and notice following a finding of 30 incompetency in a criminal case. (a) Within 30 days after a respondent has been 31 found incompetent to proceed under AS 12.47.110 and committed under AS 47.30.700
01 - 47.30.915, and every 30 days thereafter until the civil commitment case has 02 concluded, the division of the Department of Law that has responsibility for civil cases 03 shall provide all information and records obtained during the civil commitment to the 04 division of the Department of Law that has responsibility for criminal cases. 05 (b) Records disclosed to the division of the Department of Law that has 06 responsibility for criminal cases under (a) of this section are confidential and may not 07 be disclosed to anyone unless disclosure is required by a court order or the respondent 08 provides written consent to the disclosure. If the records are used in the criminal 09 proceeding, the moving party shall file the records as sealed documents. 10 (c) A facility housing a respondent found incompetent to proceed under 11 AS 12.47.110 and committed under AS 47.30.700 - 47.30.915 shall provide notice to 12 the prosecutor in the criminal case of all hearings scheduled by the court in the civil 13 commitment case. The prosecutor, or a staff member of the prosecutor's office, may 14 attend a hearing in the civil commitment case but may not participate in the hearing as 15 a party. 16 * Sec. 10. AS 47.30.735(b) is amended to read: 17 (b) The hearing shall be conducted in a physical setting least likely to have a 18 harmful effect on the mental or physical health of the respondent, within practical 19 limits. At the hearing, in addition to other rights specified in AS 47.30.660 - 20 47.30.915, the respondent has the right 21 (1) to be present at the hearing; this right may be waived only with the 22 respondent's informed consent; if the respondent is incapable of giving informed 23 consent, the respondent may be excluded from the hearing only if the court, after 24 hearing, finds that the incapacity exists and that there is a substantial likelihood that 25 the respondent's presence at the hearing would be severely injurious to the 26 respondent's mental or physical health; 27 (2) to view and copy all petitions and reports in the court file of the 28 respondent's case; 29 (3) to have the hearing open or closed to the public as the respondent 30 elects, except that, if the respondent was charged with a felony offense against a 31 person under AS 11.41 or felony arson and the criminal case was dismissed under
01 AS 12.47.110, an alleged victim in the dismissed criminal case may attend the 02 hearing; 03 (4) to have the rules of evidence and civil procedure applied so as to 04 provide for the informal but efficient presentation of evidence; 05 (5) to have an interpreter if the respondent does not understand 06 English; 07 (6) to present evidence on the respondent's behalf; 08 (7) to cross-examine witnesses who testify against the respondent; 09 (8) to remain silent; 10 (9) to call experts and other witnesses to testify on the respondent's 11 behalf. 12 * Sec. 11. AS 47.30 is amended by adding a new section to read: 13 Sec. 47.30.771. Additional two-year commitment. (a) The respondent shall 14 be released from involuntary treatment at the expiration of 180 days unless the 15 professional person in charge or the attorney general's office files an additional 180- 16 day petition or a petition for a commitment of up to two years conforming to the 17 requirements of AS 47.30.740(a) except that all references to "30-day commitment" 18 shall be read as "the previous 180-day commitment" and all references to "90-day 19 commitment" shall be read as "two-year commitment." 20 (b) The procedures for service of the petition, notification of rights, and 21 judicial hearing shall be as set out in AS 47.30.740 - 47.30.750. Following a 180-day 22 commitment of a respondent, the court may order the respondent committed for an 23 additional treatment period not to exceed two years from the date on which the 180- 24 day treatment period would have expired if the court or jury finds by clear and 25 convincing evidence that 26 (1) the respondent is mentally ill and as a result is likely to cause 27 serious harm to self or others; 28 (2) the respondent has a criminal history that includes a felony offense 29 against a person under AS 11.41 or felony arson, including an offense for which the 30 respondent was found incompetent to stand trial under AS 12.47.100 and 12.47.110; 31 (3) the respondent has been found incompetent to stand trial under
01 AS 12.47.100 and 12.47.110 for a felony offense against a person under AS 11.41 or 02 felony arson; 03 (4) commitment of the respondent for greater than 180 days but not 04 greater than two years is necessary to protect the public; and 05 (5) the period of commitment is necessary to protect the public. 06 (c) Findings of fact relating to the respondent's behavior made at a 30-day 07 commitment hearing under AS 47.30.735, a 90-day commitment hearing under 08 AS 47.30.750, a 180-day commitment hearing under AS 47.30.770, or a two-year 09 commitment hearing under this section shall be admitted as evidence and may not be 10 rebutted except that newly discovered evidence may be used for the purpose of 11 rebutting the findings. 12 (d) Successive commitments are permissible on the same ground and under 13 the same procedures as the original commitment. An order of commitment may not 14 exceed two years. 15 (e) The department shall, by January 30 of each year, submit to the attorney 16 general, public defender, public advocate, Alaska Court System, and the attorney of 17 record for the respondent, if any, a report that details how many respondents are 18 committed under this section and how much time remains on each order of 19 commitment. 20 * Sec. 12. AS 47.30.780(a) is amended to read: 21 (a) Except as provided in (b) and (c) of this section, the professional person in 22 charge shall at any time discharge a respondent on the ground that the respondent is no 23 longer gravely disabled or likely to cause serious harm as a result of mental illness. A 24 certificate to this effect shall be sent to the court, which shall enter an order officially 25 terminating the involuntary commitment. 26 * Sec. 13. AS 47.30.780 is amended by adding new subsections to read: 27 (c) If a respondent committed under AS 47.30.770 or 47.30.771 has a criminal 28 history that includes a felony offense against a person under AS 11.41 or felony arson, 29 including an offense for which the respondent was found incompetent to stand trial 30 under AS 12.47.100 and 12.47.110, the professional person in charge may not 31 discharge the respondent under (a) of this section unless the court enters an order
01 officially terminating the involuntary commitment. The court shall give the 02 prosecuting authority 10 days' notice before the professional person in charge may 03 discharge a respondent under this subsection. 04 (d) Except as provided in (e) of this section, a respondent committed under 05 AS 47.30.771 may petition the court for early discharge at any time during the 06 commitment if the respondent presents some evidence demonstrating that the 07 respondent is no longer likely to cause serious harm to self or others. The court shall 08 grant early discharge unless the state proves by clear and convincing evidence that 09 there is a factual and medical basis to believe the respondent remains likely to cause 10 serious harm to self or others. 11 (e) A respondent may not file a petition for early discharge within 180 days 12 after the date the court enters an initial commitment order or a final order ruling on a 13 previous petition for early discharge. 14 * Sec. 14. AS 47.30.805(a) is amended to read: 15 (a) Except as provided in (b) of this section, 16 (1) computations of a 72-hour [EVALUATION] period under 17 AS 47.30.706, 47.30.708, [AS 47.30.708] or 47.30.715 or a 48-hour [DETENTION] 18 period under AS 47.30.685 do not include Saturdays, Sundays, legal holidays, or any 19 period of time necessary to transport the respondent to the treatment facility, except 20 that if the exclusion of Saturdays, Sundays, and legal holidays from the computation 21 of a 72-hour evaluation period or 48-hour detention period would result in the 22 respondent being held for longer than 72 hours or 48 hours, as applicable, the period 23 ends at 5:00 p.m. on the next day that is not a Saturday, Sunday, or legal holiday; 24 (2) a seven-day detention at a crisis residential center expires at the end 25 of the seventh day following the respondent's arrival at the crisis stabilization center or 26 the crisis residential center, whichever is earlier; 27 (3) a 30-day commitment period expires at the end of the 30th day 28 after the 72 hours following initial acceptance; 29 (4) a 90-day commitment period expires at the end of the 90th day 30 after the expiration of a 30-day period of treatment; 31 (5) a 180-day commitment period expires at the end of the 180th day,
01 after the expiration of a 90-day period of treatment or previous 180-day period, 02 whichever is applicable; 03 (6) a two-year commitment period expires not later than two years 04 after the expiration of a 180-day period of treatment. 05 * Sec. 15. AS 47.30.845 is amended to read: 06 Sec. 47.30.845. Confidential records. Information and records obtained in the 07 course of a screening investigation, evaluation, examination, or treatment are 08 confidential and are not public records, except as the requirements of a hearing under 09 AS 47.30.660 - 47.30.915 may necessitate a different procedure. Information and 10 records may be copied and disclosed under regulations established by the department 11 only to 12 (1) a physician or a provider of health, mental health, or social and 13 welfare services involved in caring for, treating, or rehabilitating the patient; 14 (2) the patient or an individual to whom the patient has given written 15 consent to have information disclosed; 16 (3) a person authorized by a court order; 17 (4) a person doing research or maintaining health statistics if the 18 anonymity of the patient is assured and the facility recognizes the project as a bona 19 fide research or statistical undertaking; 20 (5) the Department of Corrections in a case in which a prisoner 21 confined to the state prison is a patient in the state hospital on authorized transfer 22 either by voluntary admission or by court order; 23 (6) a governmental or law enforcement agency when necessary to 24 secure the return of a patient who is on unauthorized absence from a facility where the 25 patient was undergoing evaluation or treatment; 26 (7) a law enforcement agency when there is substantiated concern over 27 imminent danger to the community by a presumed mentally ill person; 28 (8) the department in a case in which services provided under 29 AS 47.30.660 - 47.30.915 are paid for, in whole or in part, by the department or in 30 which a person has applied for or has received assistance from the department for 31 those services;
01 (9) the Department of Public Safety as provided in AS 47.30.907; 02 information provided under this paragraph may not include diagnostic or clinical 03 information regarding a patient; 04 (10) the division of the Department of Law that has responsibility 05 for criminal cases as provided in AS 47.30.727.