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91st General Assembly
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91_SB0849

 
                                               LRB9106073SMdv

 1        AN ACT regarding mental health, amending named Acts.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section   5.    The   Mental   Health  and  Developmental
 5    Disabilities Code is amended by changing Sections  3-209  and
 6    3-814 and by adding Section 1-101.2 as follows:

 7        (405 ILCS 5/1-101.2 new)
 8        Sec.  1-101.2.   "Adequate  and  human care and services"
 9    means  services  reasonably  calculated  to   result   in   a
10    significant  improvement  of  the condition of a recipient of
11    services confined in an inpatient mental health  facility  so
12    that he or she may be released.

13        (405 ILCS 5/3-209) (from Ch. 91 1/2, par. 3-209)
14        Sec.  3-209.   Treatment  plan.   Within  three  days  of
15    admission  under  this  Chapter or under Section 5-2-4 of the
16    Unified Code of Corrections or Section 104-25 of the Code  of
17    Criminal  Procedure  of  1963,  a  treatment  plan  shall  be
18    prepared  for  each recipient of service and entered into his
19    or her record.  The plan shall include an assessment  of  the
20    recipient's  treatment  needs,  a description of the services
21    recommended for treatment, the goals of each type of  element
22    of  service,  an anticipated timetable for the accomplishment
23    of the goals, and a designation of the qualified professional
24    responsible for the implementation of  the  plan.   The  plan
25    shall  be  reviewed  and  updated  as  the clinical condition
26    warrants, but not less than every 30 days.
27    (Source: P.A. 81-920.)

28        (405 ILCS 5/3-814) (from Ch. 91 1/2, par. 3-814)
29        Sec. 3-814.  Treatment plan.
 
                            -2-                LRB9106073SMdv
 1        (a)  Not more than 30 days  after  admission  under  this
 2    Article  or  under  Section  5-2-4  of  the  Unified  Code of
 3    Corrections  or  Section  104-25  of  the  Code  of  Criminal
 4    Procedure of 1963, and every 60 days thereafter, the facility
 5    director shall file with the court a current  treatment  plan
 6    with  the  court  which  shall  include: all the requirements
 7    listed in  Section  3-209,  includes  an  evaluation  of  the
 8    recipient's progress and the extent to which he is benefiting
 9    from  treatment,  the  criteria  which form the basis for the
10    determination that the  patient  is  subject  to  involuntary
11    admission  as  defined  in  Section  1-119,  and the specific
12    behaviors or conditions that demonstrate that  the  recipient
13    meets  these  criteria  for  continued  confinement.  If  the
14    facility  director is unable to determine any of the required
15    information, the treatment plan shall include an  explanation
16    of   why  the  facility  director  is  unable  to  make  this
17    determination, what the facility director is doing to  enable
18    himself or herself to determine the information, and the date
19    by  which  the  facility  director expects to be able to make
20    this determination.  The facility director  shall  forward  a
21    copy  of  the  plan  to the State's Attorney, the recipient's
22    attorney, if the recipient is  represented  by  counsel,  the
23    recipient, and any guardian of the recipient.
24        (b)  The purpose of the filing, forwarding, and review of
25    treatment plans and treatment is to ensure that the recipient
26    is  receiving adequate and human care and services as defined
27    in Section 1-101.2 and to ensure that the recipient continues
28    to meet the standards for involuntary confinement.
29        (c)  On request of the recipient or an interested  person
30    on  his  behalf,  or on the court's own initiative, the court
31    shall review the current treatment plan to determine  whether
32    its contents comply with the requirements of this Section and
33    Section  3-209.  If  the  court  determines  that  any of the
34    information required by this Section or Section 3-209  to  be
 
                            -3-                LRB9106073SMdv
 1    included  in  the treatment plan is not in the treatment plan
 2    or that the treatment plan does not contain information  from
 3    which the court can determine whether the recipient continues
 4    to  meet  the  criteria  for continued confinement, the court
 5    shall  indicate  what  is  lacking  and  order  the  facility
 6    director to revise the current treatment plan to comply  with
 7    this  Section  and  Section  3-209. If the recipient has been
 8    ordered committed to the facility after he has been found not
 9    guilty by reason of insanity,  the  treatment  plan  and  its
10    review  shall  also  be  subject to the provisions of Section
11    5-2-4 of the Unified Code of Corrections.
12        (d)  The recipient or an interested person on his or  her
13    behalf  may  request a hearing or the court on its own motion
14    may order a hearing to review the treatment being received by
15    the recipient.  The court,  the  recipient,  or  the  State's
16    Attorney  may  call  witnesses  at the hearing. The court may
17    order any public agency, officer, or employee to render  such
18    information,  cooperation,  and  assistance  as is within its
19    legal authority and as may  be  appropriate  to  achieve  the
20    objectives   of   this   Section.  The  court  may  order  an
21    independent psychiatric evaluation on its own initiative, and
22    shall order such an evaluation if requested by the  recipient
23    or  the State's Attorney recipient or an interested person on
24    his behalf may request a hearing or  the  court  on  its  own
25    motion  may order a hearing to review the treatment plan.  If
26    the court is satisfied that the recipient is benefiting  from
27    treatment,  it  may  continue  the  original  order  for  the
28    remainder  of  the  admission period.  If the court is not so
29    satisfied, it may  modify  its  original  order  or,  if  the
30    recipient  is not admitted under Section 5-2-4 of the Unified
31    Code of Corrections or Section 104-25 of the Code of Criminal
32    Procedure of 1963, it may order the recipient discharged.
33    (Source: P.A. 88-380.)
 
                            -4-                LRB9106073SMdv
 1        Section 10.  The Code of Criminal Procedure  of  1963  is
 2    amended by changing Section 104-25 as follows:

 3        (725 ILCS 5/104-25) (from Ch. 38, par. 104-25)
 4        Sec. 104-25.  Discharge hearing.
 5        (a)  As  provided  for in paragraph (a) of Section 104-23
 6    and subparagraph (1) of paragraph (b)  of  Section  104-23  a
 7    hearing to determine the sufficiency of the evidence shall be
 8    held.  Such hearing shall be conducted by the court without a
 9    jury.   The  State  and  the defendant may introduce evidence
10    relevant to the question of defendant's guilt  of  the  crime
11    charged.
12        The  court  may  admit  hearsay  or affidavit evidence on
13    secondary matters such as testimony to establish the chain of
14    possession  of   physical   evidence,   laboratory   reports,
15    authentication  of  transcripts  taken by official reporters,
16    court and business records, and public documents.
17        (b)  If the evidence does not prove the defendant  guilty
18    beyond  a  reasonable doubt, the court shall enter a judgment
19    of acquittal; however nothing herein shall prevent the  State
20    from  requesting  the  court  to  commit the defendant to the
21    Department of Human Services  under  the  provisions  of  the
22    Mental Health and Developmental Disabilities Code.
23        (c)  If  the  defendant  is found not guilty by reason of
24    insanity, the court shall enter a judgment of  acquittal  and
25    the  proceedings  after acquittal by reason of insanity under
26    Section 5-2-4 of the Unified Code of Corrections shall apply.
27        (d)  If the discharge  hearing  does  not  result  in  an
28    acquittal  of  the  charge  the defendant may be remanded for
29    further treatment and the one year time limit  set  forth  in
30    Section 104-23 shall be extended as follows:
31             (1)  If the most serious charge upon which the State
32        sustained  its  burden  of proof was a Class 1 or Class X
33        felony, the treatment period may  be  extended  up  to  a
 
                            -5-                LRB9106073SMdv
 1        maximum  treatment period of 2 years; if a Class 2, 3, or
 2        4 felony, the treatment period may be extended  up  to  a
 3        maximum of 15 months;
 4             (2)  If the State sustained its burden of proof on a
 5        charge  of  first degree murder, the treatment period may
 6        be extended up to a maximum treatment period of 5 years.
 7        (e)  Transcripts  of  testimony  taken  at  a   discharge
 8    hearing  may be admitted in evidence at a subsequent trial of
 9    the case, subject to the rules of evidence,  if  the  witness
10    who gave such testimony is legally unavailable at the time of
11    the subsequent trial.
12        (f)  If  the  court  fails to enter an order of acquittal
13    the defendant may appeal  from  such  judgment  in  the  same
14    manner provided for an appeal from a conviction in a criminal
15    case.
16        (g)  At the expiration of an extended period of treatment
17    ordered pursuant to this Section:
18             (1)  Upon a finding that the defendant is fit or can
19        be rendered fit consistent with Section 104-22, the court
20        may proceed with trial.
21             (2)  If the defendant continues to be unfit to stand
22        trial,  the  court  shall  determine whether he or she is
23        subject to involuntary admission under the Mental  Health
24        and  Developmental  Disabilities  Code  or  constitutes a
25        serious threat to the public safety.  If  so  found,  the
26        defendant  shall  be  remanded to the Department of Human
27        Services for further treatment and shall  be  treated  in
28        the  same  manner  as a civilly committed patient for all
29        purposes (including treatment plans  and  treatment  plan
30        reviews,  as  provided  for  in Section 3-209 and Section
31        3-814 of the Mental Health and Developmental Disabilities
32        Code), except that the original court having jurisdiction
33        over the defendant  shall  be  required  to  approve  any
34        conditional  release  or  discharge of the defendant, for
 
                            -6-                LRB9106073SMdv
 1        the period of commitment equal to the maximum sentence to
 2        which the defendant would have been subject had he or she
 3        been convicted in a  criminal  proceeding.   During  this
 4        period   of   commitment,   the   original  court  having
 5        jurisdiction over the defendant shall hold hearings under
 6        clause (i)  of  this  paragraph  (2).   However,  if  the
 7        defendant   is   remanded  to  the  Department  of  Human
 8        Services, the defendant  shall  be  placed  in  a  secure
 9        setting  unless  the  court  determines  that  there  are
10        compelling reasons why such placement is not necessary.
11             If,  during the period within which the defendant is
12        confined in a secure setting, the court enters  an  order
13        that  requires  the  defendant to appear, the court shall
14        timely transmit a copy  of  the  order  or  writ  to  the
15        director  of  the particular Department of Human Services
16        facility where  the  defendant  resides  authorizing  the
17        transportation  of  the  defendant  to  the court for the
18        purpose of the hearing.
19                  (i)  180 days after a defendant is remanded  to
20             the  Department  of  Human Services, under paragraph
21             (2), and every 180 days thereafter for  so  long  as
22             the  defendant  is  confined under the order entered
23             thereunder,  the  facility  director  shall  file  a
24             treatment  plan  with  the  original  court   having
25             jurisdiction  over  the  defendant.   The plan shall
26             include an evaluation of  the  defendant's  progress
27             and  the  extent  to  which he or she is benefitting
28             from treatment and an  opinion  as  to  whether  the
29             defendant   is   currently  subject  to  involuntary
30             admission or in need of mental health services on an
31             inpatient basis or in need of mental health services
32             on an outpatient basis.  A copy of the report  shall
33             be  forwarded  by the facility director to the clerk
34             of the court, State's Attorney and  the  defendant's
 
                            -7-                LRB9106073SMdv
 1             attorney if the defendant is represented by counsel.
 2             Within  30  days of the receipt of the report by the
 3             court, the court  shall  set  a  hearing  and  shall
 4             direct  that  notice  of  the  time and place of the
 5             hearing be served upon the defendant,  the  facility
 6             director,  the State's Attorney, and the defendant's
 7             attorney.  If requested by either the State  or  the
 8             defense  or  if  the  court  determines  that  it is
 9             appropriate,  an  impartial   examination   of   the
10             defendant by a psychiatrist or clinical psychologist
11             as defined in Section 1-103 of the Mental Health and
12             Developmental  Disabilities  Code  who is not in the
13             employ of the Department of Human Services shall  be
14             ordered,  and  the  report considered at the time of
15             the hearing.  If  the  defendant  is  not  currently
16             represented  by  counsel the court shall appoint the
17             public defender to represent the  defendant  at  the
18             hearing.   The  court  shall  make  a  finding as to
19             whether the defendant is:
20                       (A)  subject to involuntary admission; or
21                       (B)  in need of mental health services  in
22                  the form of inpatient care; or
23                       (C)  in need of mental health services but
24                  not   subject   to  involuntary  admission  nor
25                  inpatient care.
26             The findings of the court shall  be  established  by
27             clear  and  convincing  evidence  and  the burden of
28             proof and the  burden  of  going  forward  with  the
29             evidence shall rest with the State's Attorney.  Upon
30             finding  by  the  court,  the  court shall enter its
31             findings and an appropriate order.
32                  (ii)  The   terms   "subject   to   involuntary
33             admission", "in need of mental  health  services  in
34             the  form  of inpatient care" and "in need of mental
 
                            -8-                LRB9106073SMdv
 1             health  services  but  not  subject  to  involuntary
 2             admission  nor  inpatient  care"  shall   have   the
 3             meanings  ascribed  to  them  in  clause  (d)(3)  of
 4             Section 5-2-4 of the Unified Code of Corrections.
 5             (3)  If  the  defendant is not committed pursuant to
 6        this Section, he or she shall be released.
 7             (4)  In  no  event  may  the  treatment  period   be
 8        extended  to  exceed  the  maximum  sentence  to  which a
 9        defendant would have been subject  had  he  or  she  been
10        convicted in a criminal proceeding.  For purposes of this
11        Section,  the  maximum  sentence  shall  be determined by
12        Section 5-8-1  of  the  "Unified  Code  of  Corrections",
13        excluding any sentence of natural life.
14    (Source: P.A. 89-439, eff. 6-1-96; 89-507, eff. 7-1-97.)

15        Section  15.   The Unified Code of Corrections is amended
16    by changing Section 5-2-4 as follows:

17        (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
18        Sec. 5-2-4.  Proceedings after  Acquittal  by  Reason  of
19    Insanity.
20        (a)  After  a  finding or verdict of not guilty by reason
21    of insanity under Sections 104-25, 115-3 or 115-4 of The Code
22    of Criminal Procedure of 1963, the defendant shall be ordered
23    to the Department of Human Services for an evaluation  as  to
24    whether  he is subject to involuntary admission or in need of
25    mental health services.  The order shall specify whether  the
26    evaluation  shall  be conducted on an inpatient or outpatient
27    basis. If the evaluation is to be conducted on  an  inpatient
28    basis,  the  defendant  shall  be  placed in a secure setting
29    unless the Court determines that there are compelling reasons
30    why such placement is not necessary. After the evaluation and
31    during  the  period  of  time  required  to   determine   the
32    appropriate  placement,  the  defendant shall remain in jail.
 
                            -9-                LRB9106073SMdv
 1    Upon completion of the placement  process the  sheriff  shall
 2    be   notified  and  shall  transport  the  defendant  to  the
 3    designated facility.
 4        The Department shall provide the Court with a  report  of
 5    its evaluation within 30 days of the date of this order.  The
 6    Court  shall  hold  a  hearing  as  provided under the Mental
 7    Health and Developmental Disabilities Code  to  determine  if
 8    the  individual is: (a) subject to involuntary admission; (b)
 9    in need of mental health services on an inpatient basis;  (c)
10    in need of mental health services on an outpatient basis; (d)
11    a  person  not  in need of mental health services.  The Court
12    shall enter its findings.
13        If the defendant is found to be  subject  to  involuntary
14    admission  or  in  need  of  mental  health  services  on  an
15    inpatient  care basis, the Court shall order the defendant to
16    the Department of Human  Services.  The  defendant  shall  be
17    placed  in  a secure setting unless the Court determines that
18    there are  compelling  reasons  why  such  placement  is  not
19    necessary.  Such  defendants placed in a secure setting shall
20    not be permitted outside the facility's housing  unit  unless
21    escorted  or  accompanied  by  personnel of the Department of
22    Human Services or with the prior approval of  the  Court  for
23    unsupervised  on-grounds  privileges  as provided herein. Any
24    defendant  placed  in  a  secure  setting  pursuant  to  this
25    Section, transported to court  hearings  or  other  necessary
26    appointments   off  facility  grounds  by  personnel  of  the
27    Department of Human  Services,  may  be  placed  in  security
28    devices   or   otherwise   secured   during   the  period  of
29    transportation to assure secure transport  of  the  defendant
30    and  the safety of Department of Human Services personnel and
31    others.   These  security  measures  shall   not   constitute
32    restraint  as  defined in the Mental Health and Developmental
33    Disabilities Code.  If the defendant is found to be  in  need
34    of  mental  health  services,  but  not  on an inpatient care
 
                            -10-               LRB9106073SMdv
 1    basis, the Court shall conditionally release  the  defendant,
 2    under  such  conditions  as set forth in this Section as will
 3    reasonably assure the defendant's  satisfactory  progress  in
 4    treatment  or  rehabilitation and the safety of the defendant
 5    or others.  If the Court finds the  person  not  in  need  of
 6    mental  health  services,  then  the  Court  shall  order the
 7    defendant discharged from custody.
 8        (1)  Definitions:  For the purposes of this Section:
 9             (A)  "Subject to involuntary  admission"  means:   a
10        defendant   has  been  found  not  guilty  by  reason  of
11        insanity; and
12                  (i)  who is mentally ill and who because of his
13             mental illness is  reasonably  expected  to  inflict
14             serious physical harm upon himself or another in the
15             near future; or
16                  (ii)  who  is  mentally  ill and who because of
17             his illness is  unable  to  provide  for  his  basic
18             physical  needs  so as to guard himself from serious
19             harm.
20             (B)  "In  need  of  mental  health  services  on  an
21        inpatient basis" means: a defendant who  has  been  found
22        not  guilty  by  reason of insanity who is not subject to
23        involuntary admission but who is reasonably  expected  to
24        inflict serious physical harm upon himself or another and
25        who  would  benefit  from inpatient care or is in need of
26        inpatient care.
27             (C)  "In  need  of  mental  health  services  on  an
28        outpatient basis" means: a defendant who has  been  found
29        not  guilty  by  reason of insanity who is not subject to
30        involuntary  admission  or  in  need  of  mental   health
31        services  on  an  inpatient  basis,  but  is  in  need of
32        outpatient  care,  drug  and/or  alcohol   rehabilitation
33        programs,   community  adjustment  programs,  individual,
34        group, or family therapy, or chemotherapy.
 
                            -11-               LRB9106073SMdv
 1             (D)  "Conditional Release" means: the  release  from
 2        either the custody of the Department of Human Services or
 3        the  custody  of the Court of a person who has been found
 4        not guilty by reason of insanity under such conditions as
 5        the  Court  may  impose  which  reasonably   assure   the
 6        defendant's   satisfactory   progress   in  treatment  or
 7        habilitation and the safety of the defendant and  others.
 8        The  Court shall consider such terms and conditions which
 9        may include, but need not be limited to, outpatient care,
10        alcoholic and  drug  rehabilitation  programs,  community
11        adjustment   programs,  individual,  group,  family,  and
12        chemotherapy, periodic checks with the legal  authorities
13        and/or  the  Department of Human Services.  The person or
14        facility rendering the outpatient care shall be  required
15        to  periodically  report  to the Court on the progress of
16        the defendant. Such conditional release shall  be  for  a
17        period of five years, unless the defendant, the person or
18        facility  rendering  the  treatment,  therapy, program or
19        outpatient care, or the State's  Attorney  petitions  the
20        Court  for an extension of the conditional release period
21        for an additional three years. Upon  receipt  of  such  a
22        petition,  the Court shall hold a hearing consistent with
23        the provisions of this paragraph (a) and paragraph (f) of
24        this  Section,  shall  determine  whether  the  defendant
25        should continue to be subject to the terms of conditional
26        release, and shall enter an order  either  extending  the
27        defendant's  period  of  conditional release for a single
28        additional  three  year   period   or   discharging   the
29        defendant.  In  no  event shall the defendant's period of
30        conditional release exceed eight years. These  provisions
31        for  extension of conditional release shall only apply to
32        defendants conditionally released on  or  after  July  1,
33        1979.  However  the  extension  provisions  of Public Act
34        83-1449 apply only to defendants charged with a  forcible
 
                            -12-               LRB9106073SMdv
 1        felony.
 2             (E)  "Facility  director" means the chief officer of
 3        a mental health or developmental disabilities facility or
 4        his or her designee or the supervisor  of  a  program  of
 5        treatment   or  habilitation  or  his  or  her  designee.
 6        "Designee"   may   include    a    physician,    clinical
 7        psychologist, social worker, or nurse.
 8        (b)  If   the   Court  finds  the  defendant  subject  to
 9    involuntary admission or in need of mental health services on
10    an inpatient basis, the admission, detention, care, treatment
11    or  habilitation,  treatment   plans,   review   proceedings,
12    including  review  of  treatment  and  treatment  plans,  and
13    discharge  of  the  defendant after such order shall be under
14    the Mental Health and Developmental Disabilities Code, except
15    that the initial order for admission of a defendant acquitted
16    of a felony by reason of insanity shall be for an  indefinite
17    period  of  time.  Such period of commitment shall not exceed
18    the maximum length of time that the defendant would have been
19    required to serve, less  credit  for  good  behavior,  before
20    becoming  eligible  for  release had he been convicted of and
21    received the maximum sentence for the most serious crime  for
22    which  he has been acquitted by reason of insanity. The Court
23    shall determine  the  maximum  period  of  commitment  by  an
24    appropriate order. During  this period of time, the defendant
25    shall  not be permitted to be in the community in any manner,
26    including but not limited to off-grounds privileges, with  or
27    without  escort  by  personnel  of  the  Department  of Human
28    Services, unsupervised on-grounds  privileges,  discharge  or
29    conditional  or  temporary  release,  except  by  a  plan  as
30    provided  in  this  Section.  In no event shall a defendant's
31    continued unauthorized absence be a basis for discharge.  Not
32    more  than  30  days  after  admission  and  every  60   days
33    thereafter  so  long  as the initial order remains in effect,
34    the facility director shall file a treatment  plan  with  the
 
                            -13-               LRB9106073SMdv
 1    court,  and forward a copy of the treatment plan to the other
 2    persons identified in Section 3-814 of the Mental Health  and
 3    Developmental Disabilities Code.  Such plan shall include the
 4    information  required  by  Section 3-814 and Section 3-209 of
 5    the Mental Health and Developmental  Disabilities  Code,  and
 6    shall  further  state  whether  the  recipient  is in need of
 7    mental health services on an inpatient basis, or in  need  of
 8    mental health services on an outpatient basis, as these terms
 9    are  defined  in  this Section, and the specific behaviors or
10    conditions that demonstrate that the  recipient  meets  these
11    criteria  for continued confinement or conditional release an
12    evaluation of the defendant's  progress  and  the  extent  to
13    which  he  is  benefiting  from treatment. Such plan may also
14    include  unsupervised  on-grounds   privileges,   off-grounds
15    privileges  (with  or  without  escort  by  personnel  of the
16    Department of Human Services), home visits and  participation
17    in  work  programs,  but only where such privileges have been
18    approved by specific court order,  which  order  may  include
19    such  conditions  on  the  defendant  as  the  Court may deem
20    appropriate  and   necessary   to   reasonably   assure   the
21    defendant's satisfactory progress in treatment and the safety
22    of the defendant and others.
23        (c)  Every  defendant  acquitted of a felony by reason of
24    insanity and subsequently found to be subject to  involuntary
25    admission  or  in  need  of  mental  health services shall be
26    represented by counsel in all proceedings under this  Section
27    and  under  the  Mental Health and Developmental Disabilities
28    Code.
29             (1)  The Court shall appoint as counsel  the  public
30        defender or an attorney licensed by this State.
31             (2)  Upon  filing  with  the  Court  of  a  verified
32        statement  of  legal  services  rendered  by  the private
33        attorney appointed pursuant  to  paragraph  (1)  of  this
34        subsection,  the  Court  shall determine a reasonable fee
 
                            -14-               LRB9106073SMdv
 1        for such services.  If the defendant is unable to pay the
 2        fee, the Court shall enter an order upon the State to pay
 3        the entire fee or such amount as the defendant is  unable
 4        to  pay  from  funds appropriated by the General Assembly
 5        for that purpose.
 6        (d)  When the facility director determines that:
 7             (1)  the  defendant  is   no   longer   subject   to
 8        involuntary   admission  or  in  need  of  mental  health
 9        services on an inpatient basis; and
10             (2)  the defendant  may  be  conditionally  released
11        because  he  or  she  is  still  in need of mental health
12        services or that the defendant may be discharged  as  not
13        in need of any mental health services; or
14             (3)  the defendant no longer requires placement in a
15        secure setting;
16    the facility director shall give written notice to the Court,
17    State's  Attorney and defense attorney. Such notice shall set
18    forth in detail the  basis  for  the  recommendation  of  the
19    facility  director,  and specify clearly the recommendations,
20    if any, of  the  facility  director,  concerning  conditional
21    release.   Within 30 days of the notification by the facility
22    director, the Court shall set a hearing and make a finding as
23    to whether the defendant is:
24             (i)  subject to involuntary admission; or
25             (ii)  in need of mental health services in the  form
26        of inpatient care; or
27             (iii)  in  need  of  mental  health services but not
28        subject to involuntary admission or inpatient care; or
29             (iv)  no longer in need of mental  health  services;
30        or
31             (v)  no   longer  requires  placement  in  a  secure
32        setting.
33        Upon finding by the Court,  the  Court  shall  enter  its
34    findings and such appropriate order as provided in subsection
 
                            -15-               LRB9106073SMdv
 1    (a) of this Section.
 2        (e)  A  defendant  admitted  pursuant to this Section, or
 3    any person on his behalf, may  file a petition  for  transfer
 4    to  a  non-secure  setting  within  the  Department  of Human
 5    Services  or  discharge  or  conditional  release  under  the
 6    standards of this Section in the  Court  which  rendered  the
 7    verdict.   Upon  receipt  of  a  petition  for  transfer to a
 8    non-secure setting or discharge or conditional  release,  the
 9    Court  shall  set  a  hearing  to  be  held  within 120 days.
10    Thereafter, no new petition may be filed for 120 days without
11    leave of the Court.
12        (f)  The Court shall direct that notice of the  time  and
13    place  of  the  hearing  be  served  upon  the defendant, the
14    facility director, the State's Attorney, and the  defendant's
15    attorney.  If requested by either the State or the defense or
16    if  the  Court  feels  it  is   appropriate,   an   impartial
17    examination  of  the  defendant by a psychiatrist or clinical
18    psychologist as defined in Section 1-103 of the Mental Health
19    and Developmental Disabilities Code who is not in the  employ
20    of the Department of Human Services shall be ordered, and the
21    report considered at the time of the hearing.
22        (g)  The  findings  of  the Court shall be established by
23    clear and convincing evidence.  The burden of proof  and  the
24    burden  of  going forth with the evidence rest with the State
25    when a hearing is held to review  the  determination  of  the
26    facility director that the defendant should be transferred to
27    a  non-secure  setting, discharged or conditionally released.
28    The burden of proof and the burden of going  forth  with  the
29    evidence  rest  on  the  defendant  when a hearing is held to
30    review a petition filed by or on behalf  of  such  defendant.
31    The  evidence shall be presented in open Court with the right
32    of confrontation and cross-examination.
33        (h)  If the Court finds that the defendant is  no  longer
34    in need of mental health services it shall order the facility
 
                            -16-               LRB9106073SMdv
 1    director to discharge the defendant.  If the Court finds that
 2    the  defendant  is  in need of mental health services, and no
 3    longer in need of inpatient care, it shall order the facility
 4    director to release the defendant under  such  conditions  as
 5    the  Court deems appropriate and as provided by this Section.
 6    Such conditional release shall be imposed  for  a  period  of
 7    five years and shall be subject  to later modification by the
 8    Court  as  provided  by this Section. If the Court finds that
 9    the defendant is subject to involuntary admission or in  need
10    of  mental  health  services  on an inpatient basis, it shall
11    order the facility director not to discharge or  release  the
12    defendant in accordance with paragraph (b) of this Section.
13        (i)  If  within the period of the defendant's conditional
14    release, the Court determines, after hearing  evidence,  that
15    the  defendant  has  not fulfilled the conditions of release,
16    the Court shall order a hearing to be  held  consistent  with
17    the  provisions  of paragraph (f) and (g) of this Section. At
18    such hearing, if  the  Court  finds  that  the  defendant  is
19    subject  to involuntary admission or in need of mental health
20    services on an inpatient  basis,  it  shall  enter  an  order
21    remanding  him  or her to the Department of Human Services or
22    other  facility.  If  the  defendant  is  remanded   to   the
23    Department  of Human Services, he or she shall be placed in a
24    secure setting unless the Court  determines  that  there  are
25    compelling  reasons  that such placement is not necessary. If
26    the Court finds that the defendant  continues to be  in  need
27    of  mental  health services but not on an inpatient basis, it
28    may modify the conditions of the original release in order to
29    reasonably assure the defendant's  satisfactory  progress  in
30    treatment  and his or her safety and the safety of others. In
31    no event shall such conditional release be longer than  eight
32    years. Nothing in this Section shall limit a Court's contempt
33    powers or any other powers of a Court.
34        (j)  An  order  of  admission under this Section does not
 
                            -17-               LRB9106073SMdv
 1    affect the remedy of habeas corpus.
 2        (k)  In the event of a conflict between this Section  and
 3    the  Mental Health and Developmental Disabilities Code or the
 4    Mental Health and Developmental Disabilities  Confidentiality
 5    Act, the provisions of this Section shall govern.
 6        (l)  This  amendatory  Act shall apply to all persons who
 7    have been found not guilty by reason of insanity and who  are
 8    presently  committed  to  the Department of Mental Health and
 9    Developmental  Disabilities  (now  the  Department  of  Human
10    Services).
11        (m)  The Clerk of the Court shall, after the entry of  an
12    order  of  transfer to a non-secure setting of the Department
13    of  Human  Services  or  discharge  or  conditional  release,
14    transmit a certified copy of the order to the  Department  of
15    Human  Services, and the sheriff of the county from which the
16    defendant was admitted.  In cases where  the  arrest  of  the
17    defendant  or the commission of the offense took place in any
18    municipality with a population of more than  25,000  persons,
19    the  Clerk  of the Court shall also transmit a certified copy
20    of the order of  discharge  or  conditional  release  to  the
21    proper  law enforcement agency for said municipality provided
22    the municipality has requested such notice in writing.
23    (Source: P.A. 89-404,  eff.  8-20-95;  89-507,  eff.  7-1-97;
24    90-105, eff. 7-11-97; 90-593, eff. 6-19-98.)

25        Section  99.   Effective  date.   This  Act  takes effect
26    January 1, 2000.

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