2012 -- H 7504

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LC01161

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS -- MENTAL HEALTH--COMPETENCY TO STAND TRIAL

     Introduced By: Representatives Tarro, Serpa, Dickinson, Ucci, and Silva

     Date Introduced: February 09, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 40.1-5.3-3 of the General Laws in Chapter 40.1-5.3 entitled

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"Incompetency to Stand Trial and Persons Adjudged Not Guilty by Reason of Insanity" is hereby

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amended to read as follows:

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     40.1-5.3-3. Competency to stand trial. -- (a) Definitions. - As used in this section:

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      (1) "Attorney for the state" means the attorney general, an authorized assistant attorney

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general, or such other person as may be authorized by law to act as a representative of the state in

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a criminal proceeding;

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      (2) "Competent" or "competency" means mental ability to stand trial. A person is

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mentally competent to stand trial if he or she is able to understand the character and consequences

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of the proceedings against him or her and is able properly to assist in his or her defense;

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      (3) "Department" means the state department of mental health, retardation, and hospitals.

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      (4) "Director" means the director of the state department of mental health, retardation,

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and hospitals;

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      (5) "Incompetent" or "incompetency" means mentally incompetent to stand trial. A

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person is mentally incompetent to stand trial if he or she is unable to understand the character and

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consequences of the proceedings against him or her or is unable properly to assist in his or her

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defense;

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      (b) Presumption of competency. - A defendant is presumed competent. The burden of

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proving that the defendant is not competent shall be by a preponderance of the evidence, and the

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burden of going forward with the evidence shall be on the party raising the issue. The burden of

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going forward shall be on the state if the court raises the issue.

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      (c) Request for examination. - If at any time during a criminal proceeding, prior to the

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imposition of sentence, it appears that the defendant is not competent, counsel for the defendant

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or the state, or the court, on its own motion, may request an examination to determine the

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defendant's competency.

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      (d) Examination of defendant. - (1) If the court finds that the request for examination is

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justified, the court shall order an examination of the defendant. The scope of the examination

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shall be limited to the question of whether the defendant is competent.

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      (2) The examination shall take place on an outpatient basis if the defendant is to be

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released on bail or recognizance. If the defendant is ordered confined at the adult correctional

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institutions, the examination shall take place at that facility. The department shall appoint or

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designate the physician(s) who will conduct the examinations.

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      (3) If the defendant is ordered confined to the adult correctional institutions, the

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physician shall complete the examination within five (5) days. If the physician determines that the

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defendant is incompetent to stand trial, the defendant shall be immediately transferred to the

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institute of mental health's forensic unit pending the hearing provided for in subsection (g).

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      (e) Bail or recognizance during examination. - (1) A defendant for whom a competency

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examination has been ordered shall be entitled to release on bail or recognizance to the same

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extent and on the same terms and conditions as if the issue of competency had not been raised.

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      (2) The court may order the defendant to appear at a designated time and place for

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outpatient examination, and such an appearance may be made a condition of pretrial release.

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      (f) Reports of examining physicians. - Each examining physician shall prepare a report,

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in writing, in which he or she shall state his or her findings concerning the defendant's

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competency together with the medical and other data upon which his or her findings are based.

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The report shall be filed with the court within ten (10) business days if the defendant was ordered

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confined at the adult correctional institutions and as soon as practicable if the defendant was

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released on bail or recognizance and copies given to the attorney for the state and to the defendant

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or his or her counsel.

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      (g) Hearing. - Upon receipt of the report and appropriate notice to the parties, the court

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shall hold a hearing unless the report concludes that the defendant is competent and the defendant

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and the attorney for the state in open court state in writing their assent to the findings on the

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record. At the hearing, the report shall be introduced, other evidence bearing on the defendant's

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competence may be introduced by the parties, and the defendant may testify, confront witnesses,

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and present evidence on the issue of his or her competency. On the basis of the evidence

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introduced at the hearing, the court shall decide if the defendant is competent.

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      (h) Commitment of the defendant. - (1) If the court finds, after the hearing, that a

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defendant is competent it shall proceed with the criminal case.

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      (2) If the court finds that a defendant is incompetent, it shall commit him or her to the

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custody of the director for the purpose of determining whether or not the defendant is likely to

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imperil the peace and safety of the people of the state or the safety of himself or herself and

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whether the defendant will regain competency within the maximum period of any placement

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under this chapter.

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      (3) Not later than fifteen (15) days from the date of the order of commitment, the director

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shall prepare and file with the court a written report in which he or she shall state his or her

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opinion regarding the defendant's dangerousness, the likelihood of the defendant becoming

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competent to stand trial within the maximum period of any placement order and the

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recommendations of the department regarding appropriate care and treatment of the defendant.

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      (4) In the event the director is unable to complete the examination of the person in time

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to render his or her report within the fifteen (15) day period, he or she shall report that fact, in

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writing, to the court with a statement of the reasons why the examination and report could not be

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completed within the prescribed period. A copy of the director's statement shall be given to the

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attorney general and to the defendant or his or her counsel, any of whom may respond in writing,

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or if the court deems it appropriate, orally, to the director's statement. The court may thereupon

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enter an order extending for an additional twenty (20) days the time in which the director is to file

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his or her report.

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      (i) Hearing. - (1) Upon receipt of the report and appropriate notice to the director, the

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attorney general and the defendant or his or her counsel, the court shall hold a hearing at which

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the report shall be introduced, other evidence bearing on the question of the mental condition of

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the person may be introduced by the parties, and the person may testify, confront witnesses, and

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present evidence.

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      (2) If the court finds that a defendant who is incompetent may be placed on outpatient

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status without imperiling the peace or safety of the public or the safety of himself or herself, it

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may commit the defendant to an appropriate outpatient facility which agrees to provide treatment

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to the defendant and to adhere to the requirements of this section, in order that the defendant may

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receive treatment to restore or establish his or her competency.

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      (3) If the court finds that a defendant who is incompetent is likely to imperil the peace or

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safety of the people of the state or the peace and safety of himself or herself, it may order the

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defendant to the facility established pursuant to section 40.1-5.3-1 or to the general wards of the

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institute of mental health, if the director agrees that the defendant should be placed on the general

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wards. A person who is ordered to be treated on inpatient status shall not be paroled, furloughed,

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placed on outpatient status or removed from a locked facility or otherwise released from the

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institution where he or she is being treated except upon petition to the court by the director, on

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notice to the attorney general and the defendant or his or her counsel, and after hearing thereon

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and entry of an order by a judge of the court authorizing such release. The commitment ordered

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pursuant to this section shall terminate upon the occurrence of any of the following:

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      (i) The defendant is determined by the court to be competent; or

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      (ii) The charges against the defendant are dismissed pursuant to subsection (j); or

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      (iii) The charges against the defendant are dismissed or a nolle prosequi is entered; or

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      (iv) The defendant is civilly committed pursuant to section 40.1-5-8; or

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      (v) The court finds there is no reasonable likelihood that in the foreseeable future the

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defendant will become competent and his or her condition is such that he or she cannot properly

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be committed under section 40.1-5-8.

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      (j) Period of commitment. - When a court commits a defendant pursuant to subsection

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(i)(2) or (i)(3) it shall compute, counting from the date of entry to the order of commitment, the

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date of the expiration of the period of time equal to two thirds ( 2/3) of the maximum term of

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imprisonment for the most serious offense with which the defendant is charged. If the maximum

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term for the most serious offense charged is life imprisonment or death, the court shall for the

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purpose of computation deem such offense to be punishable by a maximum term of thirty (30)

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years. In the order of commitment, the court shall provide that if, on the date so computed, the

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defendant is still committed under the order, the charges against him or her shall be dismissed.

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      (k) Periodic review. - The director shall petition the court to review the state of

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competency of a defendant committed pursuant to subsection (i)(2) or (i)(3) not later than six (6)

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months from the date of the order of commitment and every six (6) months thereafter, or when

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the director believes the defendant is no longer incompetent, whichever occurs first. Outpatient

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facilities which are providing treatment to defendants in accordance with subsection (i)(2) shall

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prepare reports to be submitted to the director in accordance with the requirements of this section.

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The director shall attach to the petition a report on the condition of the defendant. If the report

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indicates that the defendant remains incompetent, it shall include a prognosis regarding the

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likelihood that he or she will become competent prior to the dismissal of the charges pursuant to

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subsection (j). Copies of the report shall be given to the attorney for the state and to the defendant

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or his or her counsel.

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      (l) Defendant's right to petition. - A defendant committed pursuant to subsection (i)(2) or

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(i)(3) may at any time petition the court to review the state of his or her competency.

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      (m) Hearing on petition. - Upon receipt of a petition pursuant to subsection (k) or (l) and

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appropriate notice to the defendant, the state, and the director, the court shall hold a hearing at

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which the parties may introduce evidence as to the defendant's competency, including any reports

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of the director, and the defendant may testify, confront witnesses, and present evidence as to his

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or her competency and prognosis. On the basis of the evidence, the court shall make a finding as

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to the defendant's competency and, if he or she is found to be incompetent, whether a reasonable

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likelihood exists that he or she will become competent prior to the dismissal of the charges

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pursuant to subsection (j). If the court finds that the defendant is competent, it shall enter an order

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to that effect. If the court finds that the defendant is incompetent and that a reasonable likelihood

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exists that he or she will become competent prior to the dismissal of the charges pursuant to

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subsection (j), it shall order continuation of the commitment of the defendant. If the court finds

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that the defendant is incompetent and that a reasonable likelihood does not exist that he or she

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will become competent prior to the dismissal of the charges pursuant to subsection (j), it shall

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order that thirty (30) days thereafter the defendant be discharged from detention under the order

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of commitment. Upon entry of the order the state may commence proceedings seeking to commit

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the defendant pursuant to section 40.1-5-8.

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      (n) Statements inadmissible. - No statements made by a defendant in the course of an

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examination conducted pursuant to subsection (d) or during a hearing conducted pursuant to

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subsection (i) or (m) shall be admissible in evidence against the defendant in any criminal action

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on any issue other than his or her mental condition. The statements shall be admissible on the

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issue of his or her mental condition even though they might otherwise be deemed to be privileged

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communications.

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      (o) Disposition of charges. - The court may, at any time, proceed to a disposition of the

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charges pending against a defendant who has been committed pursuant to subsection (i)(2) or

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(i)(3) if the factual and legal issues involved can be resolved without regard to the competency of

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the defendant.

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     SECTION 2. This act shall take effect upon passage.

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LC01161

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BEHAVIORAL HEALTHCARE, DEVELOPMENTAL DISABILITIES AND

HOSPITALS -- MENTAL HEALTH--COMPETENCY TO STAND TRIAL

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     This act would clarify existing laws to require each examining physician, evaluating a

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criminal defendant’s competency to stand trial, to file their report with the court within ten (10)

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business days if the defendant was ordered confined to the adult correctional institution.

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     This act would take effect upon passage.

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LC01161

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