Bill Text: DE HB344 | 2013-2014 | 147th General Assembly | Draft


Bill Title: An Act To Amend Titles 11 And 16 Of The Delaware Code Relating To Crimes, Mental Health, And Criminal And Civil Procedure.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Enrolled - Dead) 2014-06-26 - Passed by Senate. Votes: Passed 17 YES 3 NO 1 NOT VOTING 0 ABSENT 0 VACANT [HB344 Detail]

Download: Delaware-2013-HB344-Draft.html


SPONSOR:

Rep. Barbieri & Rep. Heffernan & Sen. Hall-Long

 

Rep. Jaques; Sen. Sokola

HOUSE OF REPRESENTATIVES

147th GENERAL ASSEMBLY

HOUSE BILL NO.

AN ACT TO AMEND TITLES 11 AND 16 OF THE DELAWARE CODE RELATING TO CRIMES, MENTAL HEALTH, AND CRIMINAL AND CIVIL PROCEDURE.


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:


Section 1.Amend Chapter 4, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§400. Definitions.

As used in this chapter:

(1) "Director" shall refer to the Director of the Delaware Psychiatric Center.

(2) "Incarcerated person with a mental condition" as used herein shall be defined as any incarcerated individual, charged with or convicted of any criminal offense under this code who also meets the criteria for civil commitment set forth in Chapter 50 of Title 16.

(3) "Patient" shall refer to a person confined to the Delaware Psychiatric Center pursuant to the procedures set forth in this chapter.

(4) "Secured building" shall refer to the Mitchell Forensic Unit or to such other facility as may be designated by order of the Secretary of Health and Social Services.

§403 Verdict of "not guilty by reason of insanity"; commitment to Delaware Psychiatric Center of persons no longer endangering the public safety; periodic review of commitments to Delaware Psychiatric Center; participation of patient in treatment program.

(b) Except as provided in subsection (c) below, a person committed, confined or transferred to the Delaware Psychiatric Center in accordance with subsection (a) of this section, §404, §405, §406 or §408 of this title (referred to herein as "the patient") shall be kept there at all times in a secured building until the Superior Court of the county wherein the case would be tried or was tried is satisfied that the public safety will not be endangered by the patient's release. The Superior Court shall without special motion reconsider the patient's level of privileges and the necessity of continued detention of a patient thus committed after the patient has been detained for 1 year. The Court shall thereafter reconsider the patient's detention upon petition on the patient's behalf or whenever advised by the Psychiatric Center that the public safety will not be endangered by the patient's release.At any time during the patient's confinement at the Delaware Psychiatric Center, the patient or the Director may petition the Superior Court for an increase in privileges at the Delaware Psychiatric Center or discharge from detention at the Delaware Psychiatric Center.

(c)(1) Upon petition by a patient confined pursuant to this section, §404, §405, §406 or §408 of this title, or upon petition by the Center Director of the Delaware Psychiatric Center, the Superior Court may permit housing in an unsecured building or participation by the patient in any treatment program that is offered by the Delaware Psychiatric Center, or which is certified by the Division of Substance Abuse and Mental Health, which requires or provides that the patient be placed outside a secured building, including residence off the grounds of the Delaware Psychiatric Center. Such participation shall include, but not be limited to, employment off hospital grounds, community-based employment, job interviews, family visits, community-based mental health and substance abuse treatment services, and other activities inside and outside the Delaware Psychiatric Center, as may be prescribed by the Medical Director in the interest of rehabilitation.

(2) The petition shall include an affidavit from the Medical Director which states that the patient has not exhibited dangerous behavior during the last year of confinement and that in the opinion of the Medical Director, the patient will benefit from such participation.

(d) Any petition filed under this section shall include an affidavit from the Director which states, in the case of a petition filed pursuant to subsection (b), that the patient's immediate discharge from the Delaware Psychiatric Center will not endanger public safety or, in the case of a petition filed pursuant to subsection (c) of this section, that the patient will benefit from participation in such program and that the patient's participation will not endanger public safety:

(3)(1) The petition shall set forth any specific treatment program being sought;, including the specific goals and course of treatment involved; and a schedule for periodic judicial reevaluation of the patient's treatment status, all of which shall be subject to the Superior Court's approval and modification.

(4)(2) Copies of the petition any petition filed pursuant to this section shall be served on the Attorney General, the Medical Director and the patient or the patient's counsel or guardian.

(5)(3) There shall be a judicial hearing on the petition any petition filed pursuant to this section, and any person or agency served with a copy of the petition, or a representative of such person or agency, shall have the right to testify, present evidence and/or cross-examine witnesses. The patient shall have the right to be represented by counsel at any proceeding held in accordance with this section. The Court shall appoint counsel for the patient if the patient cannot afford to retain counsel.

(6)(4) Upon conclusion of a hearing on a petition pursuant to this section, the Superior Court may approve, modify or disapprove any request or matter within the petition. If the patient's participation in any treatment program is approved, such approval or participation shall be effective for not longer than 6 months from the date of the judge's signature on the petition or order permitting such participation. Immediately prior to the conclusion of the 6-month period, the Center Director whichever party filed the initial petition shall report to the Superior Court on the patient's status, and make recommendations. Any authorization by the Superior Court for continued participation by the patient in any authorized treatment programs may be extended, modified or discontinued at the end of the effective period with or without further hearings, as the Superior Court may determine.

(d)(e) Any treatment program approved by the Court under this section may be terminated by the treating psychiatrist in consultation with the Medical Director of the Delaware Psychiatric Center. When a treatment program is terminated earlier than its court-approved expiration date before the end of the effective period, the Medical Director shall immediately notify the Superior Court. The Superior Court shall, after giving appropriate notice, hear the matter and review the decision of the Medical Director. At such termination hearing, the patient shall have such rights as are provided for other hearings under this section, including the right to counsel, the right to present evidence and the right to cross-examine witnesses. Where the Medical Director's decision to terminate is based upon the patient's mental or psychological condition, the patient may be examined by an independent psychiatrist or other qualified expert; provided, however, that the termination hearing shall not be held until such examination has been finally concluded.

(f) A patient who has been discharged from the Delaware Psychiatric Center under this Section whose treatment remains subject to Superior Court oversight pursuant to §403(d), or the Director on the patient's behalf, may petition the Superior Court to terminate Superior Court's oversight after the patient has maintained residence in the community for 2 years.Such petition shall be subject to the requirements set out in §403(d).

§404 Confinement in Delaware Psychiatric Center of persons too mentally ill to stand trial; requiring State to prove prima facie case in such circumstances; adjustment of sentences.

(a) Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused's own defense or to instruct counsel on the accused's own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial. However, upon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal.

(b) When the court finds that the defendant is capable of standing trial, the defendant may be tried in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center.

(a) Whenever the issue of competency is raised by any party or by the court sua sponte, the court shall order the Delaware Psychiatric Center to conduct a competency evaluation to be promptly submitted to the court.The court may order the competency evaluation to be performed on an outpatient basis while the accused person is released on bail or held within the custody of the Department of Correction or may order the accused person to be committed to the Delaware Psychiatric Center pending the completion of the competency evaluation if the accused person meets the criteria for civil commitment.

(b)The competency evaluation shall:

(1) Specifically address the accused person's ability to understand the nature of the proceedings against the accused person, the ability of the accused person to give evidence in the accused person's own defense, and the ability of the accused person to instruct counsel on the accused person's behalf;

(2) Note any mental illnesses, developmental disabilities, cognitive impairments, and/or any other factor affecting competency, and recommend appropriate treatment or services;

(3) Specify any conditions that will preclude the restoration or acquisition of competency even with treatment; and

(4) Specify whether the accused person satisfies the criteria for civil commitment set forth in Chapter 50 of Title 16.

(c)Upon completion of the competency evaluation:

(1) The parties may stipulate that the accused person is either competent to stand trial or not competent to stand trial and submit a stipulation to the court for approval or the accused person may retain his or her own expert to perform a second competency evaluation.

(2) The court, after the initial competency evaluation and, if requested by the accused person, the second competency evaluation is completed, shall promptly hold a competency hearing.If, at the conclusion of the competency evaluation hearing, the court finds that the accused person is not competent to stand trial and that competency restoration cannot be achieved, the court shall dismiss the criminal proceeding.

(3) Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused's own defense or to instruct counsel on the accused's own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial. However, upon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal.

(4) When the court finds that the defendant is capable of standing trial, the defendant may be tried in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center.

(5) If the court orders commitment to the Delaware Psychiatric Center for competency restoration, and the Delaware Psychiatric Center concludes, after a minimum of two calendar years has elapsed since the effective date of the court order initiating competency restoration, that competency restoration is not reasonably likely to be achieved with additional treatment, the Delaware Psychiatric Center may petition the court for release from additional competency restoration obligations.The court shall schedule a hearing to consider such a petition.If, at the conclusion of the hearing, the court finds that competency restoration is not ever likely to be achieved with additional treatment, the court shall dismiss the criminal proceeding.If, at the conclusion of the hearing, the court finds that additional competency restoration efforts may succeed, the court shall order competency restoration for such additional period of time as the court deems appropriate, with a review by the court to be scheduled at the conclusion of such additional time period.

§408 Verdict of "guilty, but mentally ill" — Sentence; confinement; discharge from treating facility.

(b) In a trial under this section a defendant found guilty but mentally ill, or whose plea to that effect is accepted, may have any sentence imposed which may lawfully be imposed upon any defendant for the same offense. Such defendant shall be committed into the custody of the Department of Correction, and shall undergo such further evaluation and be given such immediate and temporary treatment as is psychiatrically indicated. The Commissioner shall retain exclusive jurisdiction over such person in all matters relating to security. The Commissioner shall thereupon confine such person in the Delaware Psychiatric Center, or other suitable place for the residential treatment of criminally mentally ill individuals under the age of 18 who have been found nonamenable to the processes of Family Court. Although such person shall remain under the jurisdiction of the Department of Correction, decisions directly related to treatment for the mental illness for individuals placed at the Delaware Psychiatric Center, shall be the joint responsibility of the Director of the Division of Substance Abuse and Mental Health and those persons at the Delaware Psychiatric Center who are directly responsible for such treatment. The Delaware Psychiatric Center, or any other residential treatment facility to which the defendant is committed by the Commissioner, shall have the authority to discharge the defendant from the facility and return the defendant to the physical custody of the Commissioner whenever the facility believes that such a discharge is in the best interests of the defendant. The offender may, by written statement, refuse to take any drugs which are prescribed for treatment of the offender's mental illness; except when such a refusal will endanger the life of the offender, or the lives or property safety of other persons with whom the offender has contact.

Section 2.Amend Chapter 51, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§5151 Establishment of department for persons with criminally mental conditions.

The Department shall establish at the Delaware Psychiatric Center a department for incarcerated persons with criminally mental conditions who are adults regardless of their mental capacity. The term "persons with criminally mental conditions'' as used herein shall be defined as any incarcerated individual, charged with or convicted of any criminal offense under this Code who also meets the definition set forth at §5001(7) of this title. The department shall be established on the present grounds of the Psychiatric Center.


SYNOPSIS

The 146th General Assembly established a study group pursuant to House Joint Resoultion No. 17 to examine and recommend changes to the State's civil mental health laws.During the course of the Study Group's work, it determined that while outside the specific mandate of HJR 17, it was necessary to also look at the intersection of criminal law and mental health because there is no bright line separating treatment for mental health conditions depending on whether the commitment comes from a civil or criminal action.This bill represents the Study Group's recommendations for updating antiquated language and addressing due process concerns.

With regard to those committed pursuant to a verdict of not guilty by reason of insanity, this bill will allow the patient or the Delaware Psychiatric Center (DPC) to petition for discharge at any time, eliminating the 1 year minimum requirement.It also streamlines the provisions for filing a petition since it is currently not clear whether they only apply to outpatient treatment request petitions or also to petitions for discharge.It allows a patient who has been discharged from DPC and who has been subject to Superior Court oversight for 2 years to petition to discontinue oversight.

For those found incompetent to stand trial (11 Del. C. §404) a new provision is inserted governing the specifics of competency evaluations.It mirrors the juvenile competency restoration recently added at 10 Del. C. §1007A.The bill mandates that a competency evaluation be held before a person is confined to DPC to determine whether the person meets civil commitment criteria before admission.Finally, the changes will allow a termination of competency restoration efforts after 2 years if, upon motion by DPC, the Court determines that competency restoration is not likely to succeed.

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