House of Representatives State of Utah




         UTAH STATE CAPITOL COMPLEX . 350 STATE CAPITOL

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         P.O. BOX 145030 . SALT LAKE CITY, UTAH 84114-5030 . (801) 538-1029

        February 27, 2012

Madam Speaker:

    The Judiciary Committee reports a favorable recommendation on H.B. 346, AMENDMENTS REGARDING COMPETENCY TO STAND TRIAL, by Representative L. Christensen, with the following amendments:

1.    Page 1, Lines 15 through 19 :    

             15      trial to

{   include   }        provide       for the court's consideration      {   all available and relevant evidence   }        the totality of the circumstances       ,

             16      including
{   testimony of witnesses who have been in contact with the defendant   }        testimony of lay witnesses            {   ; and

             17          .    provides that a defendant who is not restored to competency to stand trial after
             18      forensic treatment shall be temporarily detained and undergo civil commitment
             19      proceedings  
}
.

2.    Page 1, Line 27 through Page 2, Line 28 :    

             27          
{   77-15-6, as last amended by Laws of Utah 2008, Chapter 212

             28          77-15-6.5, as last amended by Laws of Utah 2008, Chapter 212  
}


3.    Page 5, Lines 130 through 133 :    

             130          (11)
{   (a) The court, in   }        In       determining the defendant's competency to stand trial,        the court       shall

             131      consider the totality of the circumstances, which
{   includes   }        may include            {   the information presented under

             132      Subsection (11)(b)  
}
  the testimony of lay witnesses,       in addition to the expert testimony, studies, and reports provided under this


             133
     section.

4.    Page 5, Lines 134 through 141 :    

             134          
{   (b) The information to be considered by the court shall include all available and

             135      relevant evidence, witnesses, and testimony to ensure that there is no manipulation of the
             136      process or a wrongful or artificial attempt or motivation on the part of the defendant to avoid
             137      being found competent to stand trial.
             138          (c) All witnesses and evidence regarding the defendant's personal contact with
             139      individuals which may relate to the competency of the defendant to stand trial shall be
             140      considered by the court and applied to its determination of the defendant's competency under
             141      this section.  
}


5.    Page 6, Line 182 through Page 12, Line 360 :    

             182          
{   Section 2. Section 77-15-6 is amended to read:

             183          77-15-6. Commitment on finding of incompetency to stand trial -- Subsequent
             184      hearings -- Notice to prosecuting attorneys.
             185          (1) Except as provided in Subsection (5), if after hearing[,] the person is found to be
             186      incompetent to stand trial, the court shall order the defendant committed to the custody of the
             187      executive director of the Department of Human Services or his designee for the purpose of
             188      treatment intended to restore the defendant to competency. The court may recommend but not
             189      order placement of the defendant. The court may, however, order that the defendant be placed
             190      in a secure setting rather than a nonsecure setting. The director or his designee shall designate


             191      the specific placement of the defendant during the period of evaluation and treatment to restore
             192      competency.
             193          (2) The examiner or examiners designated by the executive director to assess the
             194      defendant's progress toward competency may not be involved in the routine treatment of the
             195      defendant. The examiner or examiners shall provide a full report to the court and prosecuting
             196      and defense attorneys within 90 days of arrival of the defendant at the treating facility. If any
             197      examiner is unable to complete the assessment within 90 days, that examiner shall provide to
             198      the court and counsel a summary progress report which informs the court that additional time is
             199      necessary to complete the assessment, in which case the examiner shall have up to an
             200      additional 90 days to provide the full report. The full report shall assess:
             201          (a) the facility's or program's capacity to provide appropriate treatment for the
             202      defendant;
             203          (b) the nature of treatments provided to the defendant;
             204          (c) what progress toward competency restoration has been made with respect to the
             205      factors identified by the court in its initial order;
             206          (d) the defendant's current level of mental disorder or mental retardation and need for
             207      treatment, if any; and
             208          (e) the likelihood of restoration of competency and the amount of time estimated to
             209      achieve it.
             210          (3) The court on its own motion or upon motion by either party or by the executive
             211      director may appoint additional mental health examiners to examine the defendant and advise
             212      the court on his current mental status and progress toward competency restoration.


             213          (4) Upon receipt of the full report, the court shall hold a hearing to determine the
             214      defendant's current status. At the hearing, the burden of proving that the defendant is
             215      competent is on the proponent of competency. Following the hearing, the court shall determine
             216      by a preponderance of evidence whether the defendant is:
             217          (a) competent to stand trial;
             218          (b) incompetent to stand trial with a substantial probability that the defendant may
             219      become competent in the foreseeable future; or
             220          (c) incompetent to stand trial without a substantial probability that the defendant may
             221      become competent in the foreseeable future.
             222          (5) (a) If the court enters a finding pursuant to Subsection (4)(a), the court shall
             223      proceed with the trial or such other procedures as may be necessary to adjudicate the charges.
             224          (b) If the court enters a finding pursuant to Subsection (4)(b), the court may order that
             225      the defendant remain committed to the custody of the executive director of the Department of
             226      Human Services or his designee for the purpose of treatment intended to restore the defendant
             227      to competency.
             228          (c) If the court enters a finding pursuant to Subsection (4)(c), the court shall order [the
             229      defendant released from the custody of the director unless the prosecutor informs the court]
             230      that commitment proceedings pursuant to Title 62A, Chapter 5, Services [to] for People with
             231      Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, will be
             232      initiated. These commitment proceedings must be initiated within seven days after the court's


             233      order entering the finding in Subsection (4)(c), unless the court enlarges the time for good
             234      cause shown. The defendant may be ordered to remain in the custody of the director until
             235      commitment proceedings have been concluded. If the defendant is committed, the court which
             236      entered the order pursuant to Subsection (4)(c), shall be notified by the director at least 10 days
             237      prior to any release of the committed person.
             238          (6) If the defendant is recommitted to the department pursuant to Subsection (5)(b), the
             239      court shall hold a hearing one year following the recommitment.
             240          (7) At the hearing held pursuant to Subsection (6), except for defendants charged with
             241      the crimes listed in Subsection (8), a defendant who has not been restored to competency shall
             242      be [ordered released or] temporarily detained pending civil commitment proceedings under the
             243      same terms as provided in Subsection (5)(c).
             244          (8) If the defendant has been charged with aggravated murder, murder, attempted
             245      murder, manslaughter, or a first degree felony and the court determines that the defendant is
             246      making reasonable progress towards restoration of competency at the time of the hearing held
             247      pursuant to Subsection (6), the court may order the defendant recommitted for a period not to
             248      exceed 18 months for the purpose of treatment to restore the defendant to competency with a
             249      mandatory review hearing at the end of the 18-month period.
             250          (9) Except for defendants charged with aggravated murder or murder, a defendant who
             251      has not been restored to competency at the time of the hearing held pursuant to Subsection (8)


             252      shall be [ordered released or] temporarily detained pending civil commitment proceedings
             253      under the same terms as provided in Subsection (5)(c).
             254          (10) If the defendant has been charged with aggravated murder or murder and the court
             255      determines that he is making reasonable progress towards restoration of competency at the time
             256      of the mandatory review hearing held pursuant to Subsection (8), the court may order the
             257      defendant recommitted for a period not to exceed 36 months for the purpose of treatment to
             258      restore him to competency.
             259          (11) If the defendant is recommitted to the department pursuant to Subsection (10), the
             260      court shall hold a hearing no later than at 18-month intervals following the recommitment for
             261      the purpose of determining the defendant's competency status.
             262          (12) A defendant who has not been restored to competency at the expiration of the
             263      additional 36-month commitment period ordered pursuant to Subsection (10) shall be [ordered
             264      released or] temporarily detained pending civil commitment proceedings under the same terms
             265      as provided in Subsection (5)(c).
             266          (13) In no event may the maximum period of detention under this section exceed the
             267      maximum period of incarceration which the defendant could receive if he were convicted of
             268      the charged offense. This Subsection (13) does not preclude pursuing involuntary civil
             269      commitment nor does it place any time limit on civil commitments.
             270          (14) Neither release from a pretrial incompetency commitment under the provisions of
             271      this section nor civil commitment requires dismissal of criminal charges. The court

may retain
             272      jurisdiction over the criminal case and may order periodic reviews to assess the defendant's
             273      competency to stand trial.
             274          (15) A defendant who is civilly committed pursuant to Title 62A, Chapter 5, Services
             275      [to] for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health
             276      Act, may still be adjudicated competent to stand trial under this chapter.
             277          (16) (a) The remedy for a violation of the time periods specified in this section, other
             278      than those specified in Subsection (5)(c), (7), (9), (12), or (13), shall be a motion to compel the
             279      hearing, or mandamus, but not release from detention or dismissal of the criminal charges.
             280          (b) The remedy for a violation of the time periods specified in Subsection (5)(c), (7),
             281      (9), (12), or (13) shall not be dismissal of the criminal charges.
             282          (17) In cases in which the treatment of the defendant is precluded by court order for a
             283      period of time, that time period may not be considered in computing time limitations under this
             284      section.
             285          (18) At any time that the defendant becomes competent to stand trial, the clinical
             286      director of the hospital or other facility or the executive director of the Department of Human
             287      Services shall certify that fact to the court. The court shall conduct a hearing within 15
             288      working days of the receipt of the clinical director's or executive director's report, unless the
             289      court enlarges the time for good cause.
             290          (19) The court may order a hearing or rehearing at any time on its own motion or upon


             291      recommendations of the clinical director of the hospital or other facility or the executive
             292      director of the Department of Human Services.
             293          (20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
             294      attorney. If the hearing is held in the county where the defendant is confined, notice shall also
             295      be given to the prosecuting attorney for that county.
             296          Section 3. Section 77-15-6.5 is amended to read:
             297          77-15-6.5. Petition for involuntary medication of incompetent defendant.
             298          (1) As used in this section:
             299          (a) "Executive director" means the executive director of the Department of Human
             300      Services or the executive director's designee.
             301          (b) "Final order" means a court order that determines the rights of the parties and
             302      concerning which appellate remedies have been exhausted or the time for appeal has expired.
             303          (2) (a) At any time after a defendant has been found incompetent to proceed and has
             304      been committed to the Department of Human Services under Section 77-15-6 for treatment to
             305      restore competency, the executive director shall notify the court, prosecuting attorney, and
             306      attorney for the defendant if the executive director has determined that the defendant is not
             307      responding to treatment and is unlikely to be restored to competency without the involuntary
             308      administration of antipsychotic medication.
             309          (b) The executive director shall provide the notification under Subsection (2)(a) only if
             310      there is no basis for involuntarily medicating the defendant for reasons other than to restore the
             311      defendant's competency.


             312          (3) In the notice under Subsection (2)(a), the executive director shall state whether the
             313      executive director believes:
             314          (a) medication is necessary to render the defendant competent;
             315          (b) medication is substantially likely to render the defendant competent;
             316          (c) medication is substantially unlikely to produce side effects which would
             317      significantly interfere with the defendant's ability to assist in his defense;
             318          (d) no less intrusive means are available, and whether any of those means have been
             319      attempted to render the defendant competent; and
             320          (e) medication is medically appropriate and is in the defendant's best medical interest
             321      in light of his medical condition.
             322          (4) (a) Upon receipt of the notice under Subsection (2)(a), the court shall conduct a
             323      hearing within 30 days, unless the court extends the time for good cause, to determine whether
             324      the court should convene a hearing regarding the involuntary medication of the defendant.
             325          (b) The prosecuting attorney shall represent the state at any hearing under this section.
             326          (c) The court shall consider whether the following factors apply in determining
             327      whether the defendant should be involuntarily medicated:
             328          (i) important state interests are at stake in restoring the defendant's competency;
             329          (ii) involuntary medication will significantly further the important state interests, in
             330      that the medication proposed:
             331          (A) is substantially likely to render the defendant competent to stand trial; and
             332          (B) is substantially unlikely to produce side effects which would significantly interfere
             333      with the defendant's ability to assist the defense counsel in conducting his defense;
             334          (iii) involuntary medication is necessary to further important state interests, because


             335      any alternate less intrusive treatments are unlikely to achieve substantially the same results; and
             336          (iv) the administration of the proposed medication is medically appropriate, as it is in
             337      the defendant's best medical interest in light of his medical condition.
             338          (5) In determining whether the proposed treatment is medically appropriate and is in
             339      the defendant's best medical interest, the potential penalty the defendant may be subject to, if
             340      the defendant is convicted of any charged offense, is not a relevant consideration.
             341          (6) (a) If the court finds by clear and convincing evidence that the involuntary
             342      administration of antipsychotic medication is appropriate, it shall make findings addressing
             343      each of the factors in Subsection (4)(c) and shall issue an order authorizing the Department of
             344      Human Services to involuntarily administer antipsychotic medication to the defendant in order
             345      to restore his competency, subject to the periodic reviews and other procedures provided in
             346      Section 77-15-6 .
             347          (b) When issuing an order under Subsection (6)(a), the court shall consider ordering
             348      less intrusive means for administering the drugs, such as a court order to the defendant
             349      enforceable by the contempt power, before ordering more intrusive methods of involuntary
             350      medication.
             351          (7) The provisions in Section 77-15-6 establishing time limitations for treatment of
             352      incompetent defendants before they must [be either released or civilly committed] undergo
             353      civil commitment proceedings are tolled from the time the executive director gives notice to
             354      the court and the parties under Subsection (2) until:


             355          (a) the court has issued a final order for the involuntary medication of the defendant,
             356      and the defendant has been medicated under that order; or
             357          (b) the court has issued a final order that the defendant will not be involuntarily
             358      medicated.
             359          (8) This section applies only when the prosecution seeks an order of involuntary
             360      medication solely for the purpose of rendering a defendant competent to proceed.  
}


    Respectfully,

    Kay L. McIff
    Committee Chair
Voting: 10-0-3
3 HB0346.HC1.wpd 2/27/12 9:17 am jdhowe/JDH SCA/NWB


Bill Number
Action Class
Action Code

*HB0346*
*H*
*HCRAMD*

HB0346
H
HCRAMD