ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 117
(Senators Oliverio and Hunter, original sponsors)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4,
§27-6A-5, §27-6A-6, §27-6A-8 and §27-6A-9 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto two new sections, designated §27-6A-10 and §27-6A-11,
all relating to the determination of a person's competency to
stand trial and of criminal responsibility generally;
addressing court jurisdiction over persons found not guilty by
reason of mental illness; defining terms; requiring release
from jurisdiction of the court under certain circumstances;
requiring periodic review of person found incompetent to stand
trial; establishing time limits for motions and hearings;
adding provisions for forensic evaluations and evaluators;
addressing evaluations of diminished capacity and
dangerousness; providing for responsibility of costs; and
requiring the Department of Health and Human Resources to
establish policies and procedures related to rates and
reimbursements for evaluations and related services.
Be it enacted by the Legislature of West Virginia:
That §27-6A-1, §27-6A-2, §27-6A-3, §27-6A-4, §27-6A-5,
§27-6A-6, §27-6A-8 and §27-6A-9 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §27-6A-10 and §27-
6A-11, all to read as follows:
ARTICLE 6A. COMPETENCY AND CRIMINAL RESPONSIBILITY OF PERSONS
CHARGED OR CONVICTED OF A CRIME.
§27-6A-1. Qualified forensic evaluator; qualified forensic
psychiatrist; qualified forensic psychologist;
definitions and requirements.
(a) For purposes of this article:
(1) A "qualified forensic psychiatrist" is:
(A) A psychiatrist licensed under the laws in this state to
practice medicine who has completed post-graduate education in
psychiatry in a program accredited by the Accreditation Council of
Graduate Medical Education; and
(B) Board eligible or board certified in forensic psychiatry
by the American Board of Psychiatry and Neurology or actively
enrolled in good standing in a West Virginia training program
accredited by the Accreditation Council of Graduate Medical
Education to make the evaluator eligible for board certification by
the American Board of Psychiatry and Neurology in forensic
psychiatry or has two years of experience in completing
court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.
(2) A "qualified forensic psychologist" is:
(A) A licensed psychologist licensed under the laws of this
state to practice psychology; and
(B) Board eligible or board certified in forensic psychology
by the American Board of Professional Psychology or actively
enrolled in good standing in a West Virginia training program
approved by the American Board of Forensic Psychology to make the
evaluator eligible for board certification in forensic psychology
or has at least two years of experience in performing court-ordered
forensic criminal evaluations, including having been qualified as
an expert witness by a West Virginia circuit court.
(3) A "qualified forensic evaluator" is either a qualified
forensic psychiatrist or a qualified forensic psychologist as
defined in this section.
(4) "Department" means the Department of Health and Human
Resources.
(b) No qualified forensic evaluator may perform a forensic
evaluation on an individual under this chapter if the qualified
forensic evaluator has been the individual's treating psychologist
or psychiatrist within one year prior to any evaluation order.
§27-6A-2. Competency of defendant to stand trial; cause for
appointment of qualified forensic evaluator; written report;
observation period.
(a) Whenever a court of record has reasonable cause to believe that a defendant in which an indictment has been returned, or a
warrant or summons issued, may be incompetent to stand trial it
shall, sua sponte or upon motion filed by the state or by or on
behalf of the defendant, at any stage of the proceedings order a
forensic evaluation of the defendant's competency to stand trial to
be conducted by one or more qualified forensic psychiatrists, or
one or more qualified forensic psychologists. If a court of record
or other judicial officer orders both a competency evaluation and
a criminal responsibility or diminished capacity evaluation, the
competency evaluation shall be performed first, and if a qualified
forensic evaluator is of the opinion that a defendant is not
competent to stand trial, no criminal responsibility or diminished
capacity evaluation may be conducted without further order of the
court. The initial forensic evaluation may not be conducted at a
state inpatient mental health facility unless the defendant resides
there.
(b) The court shall require the party making the motion for
the evaluation, and other parties as the court considers
appropriate, to provide to the qualified forensic evaluator
appointed under subsection (a) of this section any information
relevant to the evaluations within ten business days of its
evaluation order. The information shall include, but not be limited
to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including
statements by the defendant made to the police, investigative reports and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical or
social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluations are to include a diminished capacity
assessment, the nature of any lesser included criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange
for the prompt completion of any court-ordered evaluation which may
include record review and defendant interview and shall, within ten
business days of the date of the completion of any evaluation,
provide to the court of record a written, signed report of his or
her opinion on the issue of competency to stand trial. If it is the
qualified forensic evaluator's opinion that the defendant is not
competent to stand trial, the report shall state whether the
defendant is substantially likely to attain competency within the
next three months and, in order to attain competency to stand
trial, whether the defendant requires inpatient management in a
mental health facility. The court may extend the ten-day period for
filing the report if a qualified forensic evaluator shows good
cause to extend the period, but in no event may the period exceed
thirty days. If there are no objections by the state or defense
counsel, the court may, by order, dismiss the requirement for a
written report if the qualified forensic evaluator's opinion may
otherwise be made known to the court and interested parties.
(d) If the court determines that the defendant has been
uncooperative during the forensic evaluation ordered pursuant to subsection (a) of this section or there have been one or more
inadequate or conflicting forensic evaluations performed pursuant
to subsection (a) of this section and the court has reason to
believe that an observation period is necessary in order to
determine if a person is competent to stand trial, the court may
order the defendant be committed to a mental health facility
designated by the department for a period not to exceed fifteen
days and an additional evaluation be conducted in accordance with
subsection (a) of this section by one or more qualified forensic
psychiatrists, or a qualified forensic psychiatrist and a qualified
forensic psychologist. The court shall order that at the conclusion
of the fifteen-day observation period the sheriff of the county
where the defendant was charged shall take immediate custody of the
defendant for transportation and disposition as ordered by the
court.
(e) A mental health facility not operated by the state is not
obligated to admit and treat a defendant under this section.
§27-6A-3. Competency of defendant to stand trial determination;
preliminary finding; hearing; evidence; disposition.
(a) Within five days of the receipt of the qualified forensic
evaluator's report and opinion on the issue of competency to stand
trial, the court of record shall make a preliminary finding on the
issue of whether the defendant is competent to stand trial and if
not competent whether there is a substantial likelihood that the
defendant will attain competency within the next three months. If
the court of record orders, or if the state or defendant or defendant's counsel within twenty days of receipt of the
preliminary findings requests, a hearing, then a hearing shall be
held by the court of record within fifteen days of the date of the
preliminary finding, absent good cause being shown for a
continuance. If a hearing order or request is not filed within
twenty days, the preliminary findings of the court become the final
order.
(b) At a hearing to determine a defendant's competency to
stand trial the defendant has the right to be present and he or she
has the right to be represented by counsel and introduce evidence
and cross-examine witnesses. The defendant shall be afforded timely
and adequate notice of the issues at the hearing and shall have
access to all forensic evaluator's opinions. All rights generally
afforded a defendant in criminal proceedings shall be afforded to
a defendant in the competency proceedings, except trial by jury.
(c) The court of record pursuant to a preliminary finding or
hearing on the issue of a defendant's competency to stand trial and
with due consideration of any forensic evaluation conducted
pursuant to sections two and three of this article shall make a
finding of fact upon a preponderance of the evidence as to the
defendant's competency to stand trial based on whether or not the
defendant has sufficient present ability to consult with his or her
lawyer with a reasonable degree of rational understanding and
whether he or she has a rational as well as a factual understanding
of the proceedings against him or her.
(d) If at any point in the proceedings the defendant is found competent to stand trial, the court of record shall forthwith
proceed with the criminal proceedings.
(e) If at any point in the proceedings the defendant is found
not competent to stand trial, the court of record shall at the same
hearing, upon the evidence, make further findings as to whether or
not there is a substantial likelihood that the defendant will
attain competency within the next ensuing three months.
(f) If at any point in the proceedings the defendant is found
not competent to stand trial and is found substantially likely to
attain competency, the court of record shall in the same order,
upon the evidence, make further findings as to whether the
defendant requires, in order to attain competency, inpatient
management in a mental health facility. If inpatient management is
required, the court shall order the defendant be committed to an
inpatient mental health facility designated by the department to
attain competency to stand trial and for a competency evaluation.
The term of this commitment may not exceed three months from the
time of entry into the facility. However, upon request by the chief
medical officer of the mental health facility and based on the
requirement for additional management to attain competency to stand
trial, the court of record may, prior to the termination of the
three-month period, extend the period up to nine months from entry
into the facility. A forensic evaluation of competency to stand
trial shall be conducted by a qualified forensic evaluator and a
report rendered to the court, in like manner as subsections (a) and
(c), section two of this article, every three months until the court determines the defendant is not competent to stand trial and
is not substantially likely to attain competency.
(g) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency and if the defendant has been indicted or
charged with a misdemeanor or felony which does not involve an act
of violence against a person, the criminal charges shall be
dismissed. The dismissal order may, however, be stayed for twenty
days to allow civil commitment proceedings to be instituted by the
prosecutor pursuant to article five of this chapter. The defendant
shall be immediately released from any inpatient facility unless
civilly committed.
(h) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency, and if the defendant has been indicted or
charged with a misdemeanor or felony in which the misdemeanor or
felony does involve an act of violence against a person, then the
court shall determine on the record the offense or offenses of
which the person otherwise would have been convicted, and the
maximum sentence he or she could have received. A defendant shall
remain under the court's jurisdiction until the expiration of the
maximum sentence unless the defendant attains competency to stand
trial and the criminal charges reach resolution or the court
dismisses the indictment or charge. The court shall order the
defendant be committed to a mental health facility designated by
the department that is the least restrictive environment to manage the defendant and that will allow for the protection of the public.
Notice of the maximum sentence period with an end date shall be
provided to the mental health facility. The court shall order a
qualified forensic evaluator to conduct a dangerousness evaluation
to include dangerousness risk factors to be completed within thirty
days of admission to the mental health facility and a report
rendered to the court within ten business days of the completion of
the evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction shall continue an
additional ten days beyond any expiration to allow civil commitment
proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(i) If the defendant has been ordered to a mental health
facility pursuant to subsection (h) of this section and the court
receives notice from the medical director or other responsible
official of the mental health facility that the defendant no longer
constitutes a significant danger to self or others, the court shall
conduct a hearing within thirty days to consider evidence, with due
consideration of the qualified forensic evaluator's dangerousness
report or clinical summary report to determine if the defendant
shall be released to a less restrictive environment. The court may
order the release of the defendant only when the court finds that
the defendant is no longer a significant danger to self or others. When a defendant's dangerousness risk factors associated with
mental illness are reduced or eliminated as a result of any
treatment, the court, in its discretion, may make the continuance
of appropriate treatment, including medications, a condition of the
defendant's release from inpatient hospitalization. The court shall
maintain jurisdiction of the defendant in accordance with said
subsection. Upon notice that a defendant ordered to a mental health
facility pursuant to said subsection who is released on the
condition that he or she continues treatment does not continue his
or her treatment, the prosecuting attorney shall, by motion, cause
the court to reconsider the defendant's release. Upon a showing
that defendant is in violation of the conditions of his or her
release, the court shall reorder the defendant to a mental health
facility under the authority of the department which is the least
restrictive setting that will allow for the protection of the
public.
(j) The prosecuting attorney may, by motion, and in due
consideration of any chief medical officer's or forensic
evaluator's reports, cause the competency to stand trial of a
defendant subject to the court's jurisdiction pursuant to
subsection (h) of this section or released pursuant to subsection
(i) of this section to be determined by the court of record while
the defendant remains under the jurisdiction of the court, and in
which case the court may order a forensic evaluation of competency
to stand trial be conducted by a qualified forensic evaluator and
a report rendered to the court in like manner as subsections (a) and (c), section two of this article.
(k) Any defendant found not competent to stand trial may at
any time petition the court of record for a hearing on his or her
competency.
(l) Notice of court findings of a defendant's competency to
stand trial, of commitment for inpatient management to attain
competency, of dismissal of charges, of order for inpatient
management to protect the public, of release or conditional
release, or any hearings to be conducted pursuant to this section
shall be sent to the prosecuting attorney, the defendant and his or
her counsel, and the mental health facility. Notice of court
release hearing or order for release or conditional release
pursuant to subsection (i) of this section shall be made available
to the victim or next of kin of the victim of the offense for which
the defendant was charged. The burden is on the victim or next of
kin of the victim to keep the court apprised of that person's
current mailing address.
(m) A mental health facility not operated by the state is not
obligated to admit or treat a defendant under this section.
§27-6A-4. Criminal responsibility or diminished capacity
evaluation; court jurisdiction over persons found not guilty
by reason of mental illness.
(a) If the court of record finds, upon hearing evidence or
representations of counsel for the defendant, that there is
probable cause to believe that the defendant's criminal responsibility or diminished capacity will be a significant factor
in his or her defense, the court shall appoint one or more
qualified forensic psychiatrists or qualified forensic
psychologists to conduct a forensic evaluation of the defendant's
state of mind at the time of the alleged offense. However, if a
qualified forensic evaluator is of the opinion that the defendant
is not competent to stand trial that no criminal responsibility or
diminished capacity evaluation may be conducted. The forensic
evaluation may not be conducted at a state inpatient mental health
facility unless the defendant has been ordered to a mental health
facility in accordance with subsection (c), section two of this
article or subsection (f) or (h), section three of this article. To
the extent possible, qualified forensic evaluators who have
conducted evaluations of competency under subsection (a), section
two of this chapter shall be used to evaluate criminal
responsibility or diminished capacity under this subsection.
(b) The court shall require the party making the motion for
the evaluations, and other parties as the court considers
appropriate, to provide to the qualified forensic evaluator
appointed under subsection (a) of this section any information
relevant to the evaluation within ten business days of its
evaluation order. The information shall include, but not be limited
to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including
statements by the defendant made to the police, investigative reports and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical or
social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluation is to include a diminished capacity
assessment, the nature of any lesser criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange
within fifteen days of the receipt of appropriate documents the
completion of any court-ordered evaluation which may include record
review and defendant interview and shall, within ten business days
of the date of the completion of any evaluation, provide to the
court of record a written, signed report of his or her opinion on
the issue of criminal responsibility and if ordered, on diminished
capacity. The court may extend the ten-day period for filing the
report if a qualified forensic evaluator shows good cause to extend
the period, but in no event may the period exceed thirty days. If
there are no objections by the state or defense counsel, the court
may, by order, dismiss the requirement for a written report if the
qualified forensic evaluator's opinion may otherwise be made known
to the court and interested parties.
(d) If the court determines that the defendant has been
uncooperative during a forensic evaluation ordered pursuant to
subsection (a) of this section or there are inadequate or
conflicting forensic evaluations performed pursuant to subsection
(a) of this section, and the court has reason to believe that an
observation period and additional forensic evaluation or evaluations are necessary in order to determine if a defendant was
criminally responsible or with diminished capacity, the court may
order the defendant be admitted to a mental health facility
designated by the department for a period not to exceed fifteen
days and an additional evaluation be conducted and a report
rendered in like manner as subsections (a) and (b) of this section
by one or more qualified forensic psychiatrists or one or more
qualified forensic psychologists. At the conclusion of the
observation period, the court shall enter a disposition order and
the sheriff of the county where the defendant was charged shall
take immediate custody of the defendant for transportation and
disposition as ordered by the court.
(e) If the verdict in a criminal trial is a judgment of not
guilty by reason of mental illness, the court shall determine on
the record the offense or offenses of which the acquitee could have
otherwise been convicted, and the maximum sentence he or she could
have received. The acquitee shall remain under the court's
jurisdiction until the expiration of the maximum sentence or until
discharged by the court. The court shall commit the acquitee to a
mental health facility designated by the department that is the
least restrictive environment to manage the acquitee and that will
allow for the protection of the public. Notice of the maximum
sentence period with end date shall be provided to the mental
health facility. The court shall order a qualified forensic
evaluator to conduct a dangerousness evaluation to include
dangerousness risk factors to be completed within thirty days of admission to the mental health facility and a report rendered to
the court within ten business days of the completion of the
evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction continues an
additional ten days beyond any expiration to allow civil commitment
proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(f) In addition to any court-ordered evaluations completed
pursuant to section two, three or four of this article, the
defendant or the state has the right to an evaluation or
evaluations by a forensic evaluator or evaluators of his or her
choice and at his or her expense.
(g) A mental health facility not operated by the state is not
required to admit or treat a defendant or acquitee under this
section.
§27-6A-5. Release of acquitee to less restrictive environment;
discharge from jurisdiction of the court.
(a) If, at any time prior to the expiration of the court's
jurisdiction, the chief medical officer or responsible official of
the mental health facility to which an acquitee has been ordered
pursuant to subsection (e), section four of this article believes
that the acquitee is not mentally ill or does not have significant
dangerousness risk factors associated with mental illness, he or she shall file with the court of record notice of the belief and
shall submit evidence in support of the belief to include a
forensic evaluation dangerousness report conducted in like manner
as said subsection and recommendations for treatment, including
medications, that reduce or eliminate the dangerousness risk
factors associated with mental illness. The court of record shall
hold a hearing within thirty days of receipt of the notice to
consider evidence as to whether the acquitee shall be released from
the mental health facility to a less restrictive environment.
Notice of the hearing shall be made available to the prosecuting
attorney responsible for the charges brought against the acquitee
at trial, the acquitee and his or her counsel and the mental health
facility. If upon consideration of the evidence the court
determines that an acquitee may be released from a mental health
facility to a less restrictive setting, the court shall order,
within fifteen days of the hearing, the acquitee be released upon
terms and conditions, if any, the court considers appropriate for
the safety of the community and the well-being of the acquitee. Any
terms and conditions imposed by the court must be protective and
therapeutic in nature, not punitive. When a defendant's
dangerousness risk factors associated with mental illness are
reduced or eliminated as a result of any treatment, the court, in
its discretion, may make the continuance of appropriate treatment,
including medications, a condition of the defendant's release from
inpatient hospitalization. The court shall maintain jurisdiction of
the defendant in accordance with said subsection. Upon notice that an acquitee released on the condition that he or she continues
appropriate treatment does not continue his or her treatment, the
prosecuting attorney responsible for the charges brought against
the acquitee at trial shall, by motion, cause the court to
reconsider the acquitee's release and upon a showing that the
acquitee is in violation of the conditions of his or her release,
the court may reorder the acquitee to a mental health facility
designated by the department which is the least restrictive setting
appropriate to manage the acquitee and protect the public.
(b) No later than thirty days prior to the release from a
mental health facility or other management setting of an acquitee
because of the expiration of the court's jurisdiction as set in
accordance with subsection (e), section four of this article, if
the acquitee's physician, psychologist, chief medical officer or
other responsible party is of the opinion that the acquitee's
mental illness renders the acquitee to be likely to cause serious
harm to self or others, the supervising physician, psychologist,
chief medical officer or other responsible party shall notify the
court of record who shall promptly notify the prosecuting attorney
in the county of the court having jurisdiction of the opinion and
the basis for the opinion. Following notification, the prosecuting
attorney may file, within ten days, a civil commitment application
against the acquitee pursuant to article five of this chapter.
§27-6A-6. Judicial hearing of defendant's defense other than not
guilty by reason of mental illness.
If a defendant who has been found to be not competent to stand trial believes that he or she can establish a defense of not guilty
to the charges pending against him or her, other than the defense
of not guilty by reason of mental illness, the defendant may
request an opportunity to offer a defense thereto on the merits
before the court which has criminal jurisdiction. If the defendant
is unable to obtain legal counsel, the court of record shall
appoint counsel for the defendant to assist him or her in
supporting the request by affidavit or other evidence. If the court
of record in its discretion grants such a request, the evidence of
the defendant and of the state shall be heard by the court of
record sitting without a jury. If after hearing such petition the
court of record finds insufficient evidence to support a
conviction, it shall dismiss the indictment and order the release
of the defendant from criminal custody. The release order, however,
may be stayed for ten days to allow civil commitment proceedings to
be instituted by the prosecutor pursuant to article five of this
chapter: Provided, That a defendant committed to a mental health
facility pursuant to subsection (f) or (h), section three of this
article shall be immediately released from the facility unless
civilly committed.
§27-6A-8. Credit for time; expenses.
(a) If a person is convicted of a crime, any time spent in
involuntary confinement in a mental health facility as a result of
being charged with the crime shall be credited to the sentence.
(b) All inpatient care and treatment shall be paid by the
department.
§27-6A-9. Competency to be adjudicated in juvenile court.
In a similar manner and in accordance with procedures set
forth in subsection (a), section two of this article or subsection
(a), section four of this article, a juvenile court may order a
qualified forensic evaluator to conduct an evaluation of a juvenile
to aid the court in its disposition under chapter forty-nine of
this code. In a similar manner and in accordance with procedures
set forth in subsection (d), section two of this article or
subsection (d), section four of this article, a juvenile court may
order a period of observation for an alleged delinquent or
neglected juvenile at a mental health facility designated by the
department to aid the court in its disposition. The period of
observation may not exceed fifteen days.
§27-6A-10. Medications and management of court-ordered individuals.
(a) At any time pursuant to section two, three or four of this
article an individual is court ordered to a mental health facility,
the individual has the right to receive treatment under the
standards of medical management.
(b) An individual with health care decision-making capacity
may refuse medications or other management unless court-ordered to
be treated or unless a treating clinician determines that
medication or other management is necessary in emergencies or to
prevent danger to the individual or others.
§27-6A-11. Payment to forensic evaluators.
The department shall pay qualified forensic evaluators for all matters related to conducting a court ordered forensic evaluation.
The department shall develop and implement a process for prompt
payment to qualified forensic evaluators. The department shall
establish policies and procedures for establishing a maximum rate
schedule for each of the four evaluation types (competency to stand
trial, criminal responsibility, diminished capacity, dangerousness)
to include all efforts towards the completion of each evaluation
such as scheduling and administrative tasks, record review,
psychological and other testing, interviews, report writing,
research, preparation and consultation. Such policies and
procedures shall include input from provider representatives as
necessary and appropriate. Any rate schedule shall be fair and
reasonable. The department shall consider requests for payment in
excess of established rates or other expenses for good cause shown.