Senator Stephanie Pitcher proposes the following substitute bill:


1     
COMPETENCY AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Stephanie Pitcher

5     
House Sponsor: Nelson T. Abbott

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to a defendant's competency to stand trial.
10     Highlighted Provisions:
11          This bill:
12          ▸     establishes a process by which a court may order the ongoing administration of
13     antipsychotic medication for the purpose of maintaining a defendant's competency
14     to stand trial; and
15          ▸     makes a technical correction.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          77-15-6, as last amended by Laws of Utah 2023, Chapters 171, 330
23     

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 77-15-6 is amended to read:
26          77-15-6. Commitment on finding of incompetency to stand trial -- Subsequent
27     hearings -- Notice to prosecuting attorneys.
28          (1) (a) Except as provided in Subsection (5), if after a hearing a court finds a defendant
29     to be incompetent to proceed, the court shall order the defendant committed to the department
30     for restoration treatment.
31          (b) (i) Except as provided in Subsection (1)(b)(ii), the court may recommend but may
32     not order placement of a defendant who is found incompetent to proceed.
33          (ii) The court may order that the defendant be placed in a secure setting rather than a
34     nonsecure setting.
35          (c) Following restoration screening, the department's designee shall designate and
36     inform the court of the specific placement and restoration treatment program for the defendant.
37          (d) Restoration treatment shall be of sufficient scope and duration to:
38          (i) restore the defendant to competency; or
39          (ii) determine whether the defendant can be restored to competency in the foreseeable
40     future.
41          (e) A defendant who a court determines is incompetent to proceed may not be held for
42     restoration treatment longer than:
43          (i) the time reasonably necessary to determine that the defendant cannot become
44     competent to stand trial in the foreseeable future; and
45          (ii) the maximum period of incarceration that the defendant could receive if the
46     defendant were convicted of the most severe offense of the offenses charged.
47          (2) (a) A defendant who is receiving restoration treatment shall receive a progress
48     toward competency evaluation, by:
49          (i) a forensic evaluator, designated by the department; and
50          (ii) an additional forensic evaluator, if requested by a party and paid for by the
51     requesting party.
52          (b) A forensic evaluator shall complete a progress toward competency evaluation and
53     submit a report within 90 days after the day on which the forensic evaluator receives the
54     commitment order from the department.
55          (c) The report shall:
56          (i) assess whether the defendant is exhibiting false or exaggerated physical or
57     psychological symptoms;
58          (ii) describe any diagnostic instruments, methods, and observations used by the
59     evaluator to make the determination;
60          (iii) describe the defendant's current mental illness or intellectual disability, if any;
61          (iv) state the forensic evaluator's opinion as to the effect of any false or exaggerated
62     symptoms on the defendant's competency to stand trial;
63          (v) assess the facility's or program's capacity to provide appropriate restoration
64     treatment for the defendant;
65          (vi) assess the nature of restoration treatment provided to the defendant;
66          (vii) assess what progress the defendant has made toward competency restoration, with
67     respect to the factors identified by the court in its initial order;
68          (viii) assess whether the defendant can reasonably be restored to competency in the
69     foreseeable future given the restoration treatment currently being provided and the facility's or
70     program's capacity to provide appropriate restoration treatment for the defendant; [and]
71          (ix) assess the likelihood of restoration to competency, the amount of time estimated to
72     achieve competency, or the amount of time estimated to determine whether restoration to
73     competency may be achieved[.]; and
74          (x) include a statement by the facility's treating physician regarding:
75          (A) whether the defendant is taking any antipsychotic medication as prescribed;
76          (B) whether ongoing administration of antipsychotic medication is necessary to
77     maintain the defendant's compentency to stand trial;
78          (C) whether antipsychotic medication is substantially likely to maintain the defendant's
79     competency to stand trial;
80          (D) whether antipsychotic medication is substantially unlikely to produce side effects
81     which would significantly interfere with the defendant's ability to assist in the defendant's
82     defense;
83          (E) that no less intrusive means are available, and whether any of those means have
84     been attempted to render the defendant competent; and
85          (F) whether antipsychotic medication is medically appropriate and in the defendant's
86     best medical interest in light of the defendant's medical condition.
87          (3) (a) The court on its own motion or upon motion by either party or the department
88     may appoint an additional forensic evaluator to conduct a progress toward competency
89     evaluation.
90          (b) If the court appoints an additional forensic evaluator upon motion of a party, that
91     party shall pay the costs of the additional forensic evaluator.
92          (4) (a) Within 15 days after the day on which the court receives the forensic evaluator's
93     report of the progress toward competency evaluation, the court shall hold a hearing to review
94     the defendant's competency.
95          (b) At the hearing, the burden of proving that the defendant is competent to stand trial
96     is on the proponent of competency.
97          (c) Following the hearing, the court shall determine by a preponderance of evidence
98     whether the defendant [is]:
99          (i) is competent to stand trial;
100          (ii) is competent, but requires the ongoing administration of antipsychotic medication
101     in order to maintain the defendant's competency to stand trial;
102          [(ii)] (iii) is incompetent to proceed, with a substantial probability that the defendant
103     may become competent in the foreseeable future; or
104          [(iii)] (iv) is incompetent to proceed, without a substantial probability that the
105     defendant may become competent in the foreseeable future.
106          (5) (a) If at any time the court determines that the defendant is competent to stand trial,
107     the court shall:
108          (i) proceed with the trial or other procedures as may be necessary to adjudicate the
109     charges; [and]
110          (ii) order that the defendant be returned to the placement and status that the defendant
111     was in at the time when the petition for the adjudication of competency was filed or raised by
112     the court, unless the court determines that placement of the defendant in a less restrictive
113     environment is more appropriate[.];
114          (iii) order the ongoing administration of antipsychotic medication to the defendant for
115     the purpose of maintaining the defendant's competency to stand trial, if the court finds that the
116     administration of antipsychotic medication is necessary to maintain the defendant's competency
117     to stand trial under Subsection (4)(c)(ii); and
118          (iv) require the agency or jail with custody over the defendant to report to the court any
119     noncompliance with the court's orders under this Subsection (5) within 48 hours of the
120     noncompliance.
121          (b) If the court determines that the defendant is incompetent to proceed with a
122     substantial probability that the defendant may become competent in the foreseeable future, the
123     court may order that the defendant remain committed to the department or the department's
124     designee for the purpose of restoration treatment.
125          (c) (i) If the court determines that the defendant is incompetent to proceed without a
126     substantial probability that the defendant may become competent in the foreseeable future, the
127     court shall order the defendant released from commitment to the department, unless the
128     prosecutor or another individual informs the court that civil commitment proceedings pursuant
129     to Title 26B, Chapter 5, Health Care - Substance Use and Mental Health, or Title 26B, Chapter
130     6, Part 4, Division of Services for People with Disabilities, will be initiated.
131          (ii) The commitment proceedings must be initiated by a petition filed within seven
132     days after the day on which the court makes the determination described in Subsection
133     [(4)(c)(iii)] (4)(c)(iv), unless the court finds that there is good cause to delay the initiation of
134     the civil commitment proceedings.
135          (iii) The court may order the defendant to remain committed to the department until the
136     civil commitment proceedings conclude.
137          (iv) If the defendant is civilly committed and admitted to a secure setting, the
138     department shall provide notice to the court that adjudicated the defendant incompetent to
139     proceed and to the prosecution agency that prosecuted the case at least 60 days before any
140     proposed release of the committed individual from the secure setting.
141          (6) (a) At any time following the court's order under Subsection (5)(a)(iii), the
142     defendant, the prosecuting attorney, the department, the treating physician, or the agency, jail,
143     or prison with custody over the defendant, may notify the court of the need to review the
144     medication order under Subsection (5)(a)(iii) for continued appropriateness and feasibility.
145          (b) The court shall set the matter for a hearing if the notification under Subsection
146     (6)(a) establishes good cause to review the matter.
147          [(6)] (7) If a court, under Subsection (5)(b), extends a defendant's commitment, the
148     court shall schedule a competency review hearing for the earlier of:
149          (a) the department's best estimate of when the defendant may be restored to
150     competency; or
151          (b) three months after the day on which the court determined under Subsection (5)(b)
152     to extend the defendant's commitment.
153          [(7)] (8) Unless the defendant is charged with a crime listed in Subsection [(8)] (9), if a
154     defendant is incompetent to proceed by the day of the competency review hearing that follows
155     the extension of a defendant's commitment, the court shall:
156          (a) order the defendant be:
157          (i) released or temporarily detained pending civil commitment proceedings as
158     described in Subsection (5)(c); and
159          (ii) terminate the defendant's commitment to the department for restoration treatment;
160     or
161          (b) if the forensic evaluator reports to the court that there is a substantial probability
162     that restoration treatment will bring the defendant to competency to stand trial in the
163     foreseeable future, extend the defendant's commitment for restoration treatment up to 45
164     additional days.
165          [(8)] (9) If the defendant is charged with aggravated murder, murder, attempted
166     murder, manslaughter, or a first degree felony and the court determines that the defendant is
167     making reasonable progress towards restoration of competency at the time of the hearing held
168     pursuant to Subsection [(6)] (7), the court may extend the commitment for a period not to
169     exceed nine months for the purpose of restoration treatment, with a mandatory review hearing
170     at the end of the nine-month period.
171          [(9)] (10) Unless the defendant is charged with aggravated murder or murder, if, at the
172     nine-month review hearing described in Subsection [(8)] (9), the court determines that the
173     defendant is incompetent to proceed, the court shall:
174          (a) (i) order the defendant be released or temporarily detained pending civil
175     commitment proceedings as provided in Subsection (5)(c); and
176          (ii) terminate the defendant's commitment to the department for restoration treatment;
177     or
178          (b) if the forensic evaluator reports to the court that there is a substantial probability
179     that restoration treatment will bring the defendant to competency to stand trial in the
180     foreseeable future, extend the defendant's commitment for restoration treatment for up to 135
181     additional days.
182          [(10)] (11) If the defendant is charged with aggravated murder or murder and the court
183     determines that the defendant is making reasonable progress towards restoration of competency
184     at the time of the nine-month review hearing described in Subsection [(8)] (9), the court may
185     extend the commitment for a period not to exceed 24 months for the purpose of restoration
186     treatment.
187          [(11)] (12) If the court extends the defendant's commitment term under Subsection
188     [(10)] (11), the court shall hold a hearing no less frequently than at 12-month intervals
189     following the extension for the purpose of determining the defendant's competency status.
190          [(12)] (13) If, at the end of the 24-month commitment period described in Subsection
191     [(10)] (11), the court determines that the defendant is incompetent to proceed, the court shall:
192          (a) (i) order the defendant be released or temporarily detained pending civil
193     commitment proceedings as provided in Subsection (5)(c); and
194          (ii) terminate the defendant's commitment to the department for restoration treatment;
195     or
196          (b) if the forensic evaluator reports to the court that there is a substantial probability
197     that restoration treatment will bring the defendant to competency to stand trial in the
198     foreseeable future, extend the defendant's commitment for restoration treatment for up to 12
199     additional months.
200          [(13)] (14) (a) Neither release from a pretrial incompetency commitment under the
201     provisions of this section nor civil commitment requires dismissal of criminal charges.
202          (b) The court may retain jurisdiction over the criminal case and may order periodic
203     reviews.
204          [(14)] (15) A defendant who is civilly committed pursuant to Title 26B, Chapter 5,
205     Health Care - Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of
206     Services for People with Disabilities, may still be adjudicated competent to stand trial under
207     this chapter.
208          [(15)] (16) (a) The remedy for a violation of the time periods specified in this section,
209     other than those specified in Subsection (5)(c), [(7)] (8), [(9)] (10), or [(12)] (13), shall be a
210     motion to compel the hearing, or mandamus, but not release from detention or dismissal of the
211     criminal charges.
212          (b) The remedy for a violation of the time periods specified in Subsection (5)(c), [(7)]
213     (8), [(9)] (9), or [(12)] (13), or is not dismissal of the criminal charges.
214          [(16)] (17) In cases in which the treatment of the defendant is precluded by court order
215     for a period of time, that time period may not be considered in computing time limitations
216     under this section.
217          [(17)] (18) (a) If, at any time, the defendant becomes competent to stand trial while the
218     defendant is committed to the department, the clinical director of the Utah State Hospital, the
219     department, or the department's designee shall certify that fact to the court.
220          (b) The court shall conduct a competency review hearing:
221          (i) within 15 working days after the day on which the court receives the certification
222     described in Subsection [(17)(a)] (18)(a); or
223          (ii) within 30 working days after the day on which the court receives the certification
224     described in Subsection [(17)(a)] (18)(a), if the court determines that more than 15 working
225     days are necessary for good cause related to the defendant's competency.
226          [(18)] (19) The court may order a hearing at any time on the court's own motion or
227     upon recommendations of the clinical director of the Utah State Hospital or other facility or the
228     department.
229          [(19)] (20) Notice of a hearing on competency to stand trial shall be given to the
230     prosecuting attorney and all counsel of record.
231          Section 2. Effective date.
232          This bill takes effect on May 1, 2024.