99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB4976

 

Introduced , by Rep. Michael J. Zalewski

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/104-15  from Ch. 38, par. 104-15
725 ILCS 5/104-20  from Ch. 38, par. 104-20
730 ILCS 5/5-2-4  from Ch. 38, par. 1005-2-4

    Amends the Code of Criminal Procedure of 1963 concerning unfit defendants. Provides that if the report to the court, the State, and the defense indicates that the defendant is not fit to stand trial or to plead because of a disability, the report shall include an opinion as to the likelihood of the defendant attaining fitness within a period of time from the date of the finding of unfitness (rather than one year) if provided with a course of treatment. Provides that for a defendant charged with a felony, the period of time shall be one year. Provides that for a defendant charged with a misdemeanor, the period of time shall be no longer than the maximum term of imprisonment for the most serious offense. Provides that the facility director shall provide a report to the court on the defendant's status toward restoration of fitness every 60 days from the date of the initial court order and thereafter. Provides that not more than 30 days after admission and every 90 (rather than 60) days thereafter so long as the initial order remains in effect, the facility director shall file a treatment plan report in writing with the court and forward a copy of the treatment plan report to the clerk of the court, the State's Attorney, and the defendant's attorney, if the defendant is represented by counsel, or to a person authorized by the defendant under the Mental Health and Developmental Disabilities Confidentiality Act to be sent a copy of the report. Effective January 1, 2017.


LRB099 15921 RLC 40237 b

 

 

A BILL FOR

 

HB4976LRB099 15921 RLC 40237 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Sections 104-15 and 104-20 as follows:
 
6    (725 ILCS 5/104-15)  (from Ch. 38, par. 104-15)
7    Sec. 104-15. Report.
8    (a) The person or persons conducting an examination of the
9defendant, pursuant to paragraph (a) or (b) of Section 104-13
10shall submit a written report to the court, the State, and the
11defense within 30 days of the date of the order. The report
12shall include:
13        (1) A diagnosis and an explanation as to how it was
14    reached and the facts upon which it is based;
15        (2) A description of the defendant's mental or physical
16    disability, if any; its severity; and an opinion as to
17    whether and to what extent it impairs the defendant's
18    ability to understand the nature and purpose of the
19    proceedings against him or to assist in his defense, or
20    both.
21    (b) If the report indicates that the defendant is not fit
22to stand trial or to plead because of a disability, the report
23shall include an opinion as to the likelihood of the defendant

 

 

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1attaining fitness within a period of time from the date of the
2finding of unfitness one year if provided with a course of
3treatment. For a defendant charged with a felony, the period of
4time shall be one year. For a defendant charged with a
5misdemeanor, the period of time shall be no longer than the
6maximum term of imprisonment for the most serious offense. If
7the person or persons preparing the report are unable to form
8such an opinion, the report shall state the reasons therefor.
9The report may include a general description of the type of
10treatment needed and of the least physically restrictive form
11of treatment therapeutically appropriate.
12    (c) The report shall indicate what information, if any,
13contained therein may be harmful to the mental condition of the
14defendant if made known to him.
15    (d) In addition to the report, a person retained or
16appointed by the State or the defense to conduct an examination
17shall, upon written request, make his or her notes, other
18evaluations reviewed or relied upon by the testifying witness,
19and any videotaped interviews available to another examiner of
20the defendant. All forensic interviews conducted by a person
21retained or appointed by the State or the defense shall be
22videotaped unless doing so would be impractical. In the event
23that the interview is not videotaped, the examiner may still
24testify as to the person's fitness and the court may only
25consider the lack of compliance in according the weight and not
26the admissibility of the expert testimony. An examiner may use

 

 

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1these materials as part of his or her diagnosis and explanation
2but shall not otherwise disclose the contents, including at a
3hearing before the court, except as otherwise provided in
4Section 104-14 of this Code.
5(Source: P.A. 98-1025, eff. 1-1-15.)
 
6    (725 ILCS 5/104-20)  (from Ch. 38, par. 104-20)
7    Sec. 104-20. Ninety-Day Hearings; Continuing Treatment.)
8    (a) Upon entry or continuation of any order to undergo
9treatment, the court shall set a date for hearing to reexamine
10the issue of the defendant's fitness not more than 90 days
11thereafter. The facility director shall provide a report to the
12court on the defendant's status toward restoration of fitness
13every 60 days from the date of the initial court order and
14thereafter. In addition, whenever the court receives a report
15from the supervisor of the defendant's treatment pursuant to
16subparagraph (2) or (3) of paragraph (a) of Section 104-18, the
17court shall forthwith set the matter for a first hearing within
1814 days unless good cause is demonstrated why the hearing
19cannot be held. On the date set or upon conclusion of the
20matter then pending before it, the court, sitting without a
21jury, shall conduct a hearing, unless waived by the defense,
22and shall determine:
23        (1) Whether the defendant is fit to stand trial or to
24    plead; and if not,
25        (2) Whether the defendant is making progress under

 

 

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1    treatment toward attainment of fitness within the time
2    period set in subsection (e) of Section 104-17 of this Code
3    from the date of the original finding of unfitness.
4    (b) If the court finds the defendant to be fit pursuant to
5this Section, the court shall set the matter for trial;
6provided that if the defendant is in need of continued care or
7treatment and the supervisor of the defendant's treatment
8agrees to continue to provide it, the court may enter any order
9it deems appropriate for the continued care or treatment of the
10defendant by the facility or program pending the conclusion of
11the criminal proceedings.
12    (c) If the court finds that the defendant is still unfit
13but that he is making progress toward attaining fitness, the
14court may continue or modify its original treatment order
15entered pursuant to Section 104-17.
16    (d) If the court finds that the defendant is still unfit
17and that he is not making progress toward attaining fitness
18such that there is not a substantial probability that he will
19attain fitness within the time period set in subsection (e) of
20Section 104-17 of this Code from the date of the original
21finding of unfitness, the court shall proceed pursuant to
22Section 104-23. However, if the defendant is in need of
23continued care and treatment and the supervisor of the
24defendant's treatment agrees to continue to provide it, the
25court may enter any order it deems appropriate for the
26continued care or treatment by the facility or program pending

 

 

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1the conclusion of the criminal proceedings.
2    (e) If the court finds that the defendant is still unfit
3after being recommended as fit by the supervisor of the
4defendant's treatment, the court shall attach a copy of any
5written report that identifies the factors in the finding that
6the defendant continues to be unfit, prepared by a licensed
7physician, clinical psychologist, or psychiatrist, to the
8court order remanding the person for further treatment.
9(Source: P.A. 98-1025, eff. 8-22-14; 99-140, eff. 1-1-16.)
 
10    Section 10. The Unified Code of Corrections is amended by
11changing Section 5-2-4 as follows:
 
12    (730 ILCS 5/5-2-4)  (from Ch. 38, par. 1005-2-4)
13    Sec. 5-2-4. Proceedings after Acquittal by Reason of
14Insanity.
15    (a) After a finding or verdict of not guilty by reason of
16insanity under Sections 104-25, 115-3 or 115-4 of the Code of
17Criminal Procedure of 1963, the defendant shall be ordered to
18the Department of Human Services for an evaluation as to
19whether he is in need of mental health services. The order
20shall specify whether the evaluation shall be conducted on an
21inpatient or outpatient basis. If the evaluation is to be
22conducted on an inpatient basis, the defendant shall be placed
23in a secure setting. With the court order for evaluation shall
24be sent a copy of the arrest report, criminal charges, arrest

 

 

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1record, jail record, any report prepared under Section 115-6 of
2the Code of Criminal Procedure of 1963, and any victim impact
3statement prepared under Section 6 of the Rights of Crime
4Victims and Witnesses Act. After the evaluation and during the
5period of time required to determine the appropriate placement,
6the defendant shall remain in jail. Individualized placement
7evaluations by the Department of Human Services determine the
8most appropriate setting for forensic treatment based upon a
9number of factors including mental health diagnosis, proximity
10to surviving victims, security need, age, gender, and proximity
11to family. Upon completion of the placement process the sheriff
12shall be notified and shall transport the defendant to the
13designated facility.
14    The Department shall provide the Court with a report of its
15evaluation within 30 days of the date of this order. The Court
16shall hold a hearing as provided under the Mental Health and
17Developmental Disabilities Code to determine if the individual
18is: (a) in need of mental health services on an inpatient
19basis; (b) in need of mental health services on an outpatient
20basis; (c) a person not in need of mental health services. The
21Court shall enter its findings.
22    If the defendant is found to be in need of mental health
23services on an inpatient care basis, the Court shall order the
24defendant to the Department of Human Services. The defendant
25shall be placed in a secure setting. Such defendants placed in
26a secure setting shall not be permitted outside the facility's

 

 

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1housing unit unless escorted or accompanied by personnel of the
2Department of Human Services or with the prior approval of the
3Court for unsupervised on-grounds privileges as provided
4herein. Any defendant placed in a secure setting pursuant to
5this Section, transported to court hearings or other necessary
6appointments off facility grounds by personnel of the
7Department of Human Services, shall be placed in security
8devices or otherwise secured during the period of
9transportation to assure secure transport of the defendant and
10the safety of Department of Human Services personnel and
11others. These security measures shall not constitute restraint
12as defined in the Mental Health and Developmental Disabilities
13Code. If the defendant is found to be in need of mental health
14services, but not on an inpatient care basis, the Court shall
15conditionally release the defendant, under such conditions as
16set forth in this Section as will reasonably assure the
17defendant's satisfactory progress and participation in
18treatment or rehabilitation and the safety of the defendant and
19others. If the Court finds the person not in need of mental
20health services, then the Court shall order the defendant
21discharged from custody.
22    (a-1) Definitions. For the purposes of this Section:
23        (A) (Blank).
24        (B) "In need of mental health services on an inpatient
25    basis" means: a defendant who has been found not guilty by
26    reason of insanity but who due to mental illness is

 

 

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1    reasonably expected to inflict serious physical harm upon
2    himself or another and who would benefit from inpatient
3    care or is in need of inpatient care.
4        (C) "In need of mental health services on an outpatient
5    basis" means: a defendant who has been found not guilty by
6    reason of insanity who is not in need of mental health
7    services on an inpatient basis, but is in need of
8    outpatient care, drug and/or alcohol rehabilitation
9    programs, community adjustment programs, individual,
10    group, or family therapy, or chemotherapy.
11        (D) "Conditional Release" means: the release from
12    either the custody of the Department of Human Services or
13    the custody of the Court of a person who has been found not
14    guilty by reason of insanity under such conditions as the
15    Court may impose which reasonably assure the defendant's
16    satisfactory progress in treatment or habilitation and the
17    safety of the defendant and others. The Court shall
18    consider such terms and conditions which may include, but
19    need not be limited to, outpatient care, alcoholic and drug
20    rehabilitation programs, community adjustment programs,
21    individual, group, family, and chemotherapy, random
22    testing to ensure the defendant's timely and continuous
23    taking of any medicines prescribed to control or manage his
24    or her conduct or mental state, and periodic checks with
25    the legal authorities and/or the Department of Human
26    Services. The Court may order as a condition of conditional

 

 

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1    release that the defendant not contact the victim of the
2    offense that resulted in the finding or verdict of not
3    guilty by reason of insanity or any other person. The Court
4    may order the Department of Human Services to provide care
5    to any person conditionally released under this Section.
6    The Department may contract with any public or private
7    agency in order to discharge any responsibilities imposed
8    under this Section. The Department shall monitor the
9    provision of services to persons conditionally released
10    under this Section and provide periodic reports to the
11    Court concerning the services and the condition of the
12    defendant. Whenever a person is conditionally released
13    pursuant to this Section, the State's Attorney for the
14    county in which the hearing is held shall designate in
15    writing the name, telephone number, and address of a person
16    employed by him or her who shall be notified in the event
17    that either the reporting agency or the Department decides
18    that the conditional release of the defendant should be
19    revoked or modified pursuant to subsection (i) of this
20    Section. Such conditional release shall be for a period of
21    five years. However, the defendant, the person or facility
22    rendering the treatment, therapy, program or outpatient
23    care, the Department, or the State's Attorney may petition
24    the Court for an extension of the conditional release
25    period for an additional 5 years. Upon receipt of such a
26    petition, the Court shall hold a hearing consistent with

 

 

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1    the provisions of paragraph (a), this paragraph (a-1), and
2    paragraph (f) of this Section, shall determine whether the
3    defendant should continue to be subject to the terms of
4    conditional release, and shall enter an order either
5    extending the defendant's period of conditional release
6    for an additional 5 year period or discharging the
7    defendant. Additional 5-year periods of conditional
8    release may be ordered following a hearing as provided in
9    this Section. However, in no event shall the defendant's
10    period of conditional release continue beyond the maximum
11    period of commitment ordered by the Court pursuant to
12    paragraph (b) of this Section. These provisions for
13    extension of conditional release shall only apply to
14    defendants conditionally released on or after August 8,
15    2003. However the extension provisions of Public Act
16    83-1449 apply only to defendants charged with a forcible
17    felony.
18        (E) "Facility director" means the chief officer of a
19    mental health or developmental disabilities facility or
20    his or her designee or the supervisor of a program of
21    treatment or habilitation or his or her designee.
22    "Designee" may include a physician, clinical psychologist,
23    social worker, nurse, or clinical professional counselor.
24    (b) If the Court finds the defendant in need of mental
25health services on an inpatient basis, the admission,
26detention, care, treatment or habilitation, treatment plans,

 

 

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1review proceedings, including review of treatment and
2treatment plans, and discharge of the defendant after such
3order shall be under the Mental Health and Developmental
4Disabilities Code, except that the initial order for admission
5of a defendant acquitted of a felony by reason of insanity
6shall be for an indefinite period of time. Such period of
7commitment shall not exceed the maximum length of time that the
8defendant would have been required to serve, less credit for
9good behavior as provided in Section 5-4-1 of the Unified Code
10of Corrections, before becoming eligible for release had he
11been convicted of and received the maximum sentence for the
12most serious crime for which he has been acquitted by reason of
13insanity. The Court shall determine the maximum period of
14commitment by an appropriate order. During this period of time,
15the defendant shall not be permitted to be in the community in
16any manner, including but not limited to off-grounds
17privileges, with or without escort by personnel of the
18Department of Human Services, unsupervised on-grounds
19privileges, discharge or conditional or temporary release,
20except by a plan as provided in this Section. In no event shall
21a defendant's continued unauthorized absence be a basis for
22discharge. Not more than 30 days after admission and every 90
2360 days thereafter so long as the initial order remains in
24effect, the facility director shall file a treatment plan
25report in writing with the court and forward a copy of the
26treatment plan report to the clerk of the court, the State's

 

 

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1Attorney, and the defendant's attorney, if the defendant is
2represented by counsel, or to a person authorized by the
3defendant under the Mental Health and Developmental
4Disabilities Confidentiality Act to be sent a copy of the
5report. The report shall include an opinion as to whether the
6defendant is currently in need of mental health services on an
7inpatient basis or in need of mental health services on an
8outpatient basis. The report shall also summarize the basis for
9those findings and provide a current summary of the following
10items from the treatment plan: (1) an assessment of the
11defendant's treatment needs, (2) a description of the services
12recommended for treatment, (3) the goals of each type of
13element of service, (4) an anticipated timetable for the
14accomplishment of the goals, and (5) a designation of the
15qualified professional responsible for the implementation of
16the plan. The report may also include unsupervised on-grounds
17privileges, off-grounds privileges (with or without escort by
18personnel of the Department of Human Services), home visits and
19participation in work programs, but only where such privileges
20have been approved by specific court order, which order may
21include such conditions on the defendant as the Court may deem
22appropriate and necessary to reasonably assure the defendant's
23satisfactory progress in treatment and the safety of the
24defendant and others.
25    (c) Every defendant acquitted of a felony by reason of
26insanity and subsequently found to be in need of mental health

 

 

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1services shall be represented by counsel in all proceedings
2under this Section and under the Mental Health and
3Developmental Disabilities Code.
4        (1) The Court shall appoint as counsel the public
5    defender or an attorney licensed by this State.
6        (2) Upon filing with the Court of a verified statement
7    of legal services rendered by the private attorney
8    appointed pursuant to paragraph (1) of this subsection, the
9    Court shall determine a reasonable fee for such services.
10    If the defendant is unable to pay the fee, the Court shall
11    enter an order upon the State to pay the entire fee or such
12    amount as the defendant is unable to pay from funds
13    appropriated by the General Assembly for that purpose.
14    (d) When the facility director determines that:
15        (1) the defendant is no longer in need of mental health
16    services on an inpatient basis; and
17        (2) the defendant may be conditionally released
18    because he or she is still in need of mental health
19    services or that the defendant may be discharged as not in
20    need of any mental health services; or
21        (3) (blank);
22the facility director shall give written notice to the Court,
23State's Attorney and defense attorney. Such notice shall set
24forth in detail the basis for the recommendation of the
25facility director, and specify clearly the recommendations, if
26any, of the facility director, concerning conditional release.

 

 

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1Any recommendation for conditional release shall include an
2evaluation of the defendant's need for psychotropic
3medication, what provisions should be made, if any, to ensure
4that the defendant will continue to receive psychotropic
5medication following discharge, and what provisions should be
6made to assure the safety of the defendant and others in the
7event the defendant is no longer receiving psychotropic
8medication. Within 30 days of the notification by the facility
9director, the Court shall set a hearing and make a finding as
10to whether the defendant is:
11        (i) (blank); or
12        (ii) in need of mental health services in the form of
13    inpatient care; or
14        (iii) in need of mental health services but not subject
15    to inpatient care; or
16        (iv) no longer in need of mental health services; or
17        (v) (blank).
18    Upon finding by the Court, the Court shall enter its
19findings and such appropriate order as provided in subsections
20(a) and (a-1) of this Section.
21    (e) A defendant admitted pursuant to this Section, or any
22person on his behalf, may file a petition for treatment plan
23review or discharge or conditional release under the standards
24of this Section in the Court which rendered the verdict. Upon
25receipt of a petition for treatment plan review or discharge or
26conditional release, the Court shall set a hearing to be held

 

 

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1within 120 days. Thereafter, no new petition may be filed for
2180 days without leave of the Court.
3    (f) The Court shall direct that notice of the time and
4place of the hearing be served upon the defendant, the facility
5director, the State's Attorney, and the defendant's attorney.
6If requested by either the State or the defense or if the Court
7feels it is appropriate, an impartial examination of the
8defendant by a psychiatrist or clinical psychologist as defined
9in Section 1-103 of the Mental Health and Developmental
10Disabilities Code who is not in the employ of the Department of
11Human Services shall be ordered, and the report considered at
12the time of the hearing.
13    (g) The findings of the Court shall be established by clear
14and convincing evidence. The burden of proof and the burden of
15going forth with the evidence rest with the defendant or any
16person on the defendant's behalf when a hearing is held to
17review a petition filed by or on behalf of the defendant. The
18evidence shall be presented in open Court with the right of
19confrontation and cross-examination. Such evidence may
20include, but is not limited to:
21        (1) whether the defendant appreciates the harm caused
22    by the defendant to others and the community by his or her
23    prior conduct that resulted in the finding of not guilty by
24    reason of insanity;
25        (2) Whether the person appreciates the criminality of
26    conduct similar to the conduct for which he or she was

 

 

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1    originally charged in this matter;
2        (3) the current state of the defendant's illness;
3        (4) what, if any, medications the defendant is taking
4    to control his or her mental illness;
5        (5) what, if any, adverse physical side effects the
6    medication has on the defendant;
7        (6) the length of time it would take for the
8    defendant's mental health to deteriorate if the defendant
9    stopped taking prescribed medication;
10        (7) the defendant's history or potential for alcohol
11    and drug abuse;
12        (8) the defendant's past criminal history;
13        (9) any specialized physical or medical needs of the
14    defendant;
15        (10) any family participation or involvement expected
16    upon release and what is the willingness and ability of the
17    family to participate or be involved;
18        (11) the defendant's potential to be a danger to
19    himself, herself, or others; and
20        (12) any other factor or factors the Court deems
21    appropriate.
22    (h) Before the court orders that the defendant be
23discharged or conditionally released, it shall order the
24facility director to establish a discharge plan that includes a
25plan for the defendant's shelter, support, and medication. If
26appropriate, the court shall order that the facility director

 

 

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1establish a program to train the defendant in self-medication
2under standards established by the Department of Human
3Services. If the Court finds, consistent with the provisions of
4this Section, that the defendant is no longer in need of mental
5health services it shall order the facility director to
6discharge the defendant. If the Court finds, consistent with
7the provisions of this Section, that the defendant is in need
8of mental health services, and no longer in need of inpatient
9care, it shall order the facility director to release the
10defendant under such conditions as the Court deems appropriate
11and as provided by this Section. Such conditional release shall
12be imposed for a period of 5 years as provided in paragraph (D)
13of subsection (a-1) and shall be subject to later modification
14by the Court as provided by this Section. If the Court finds
15consistent with the provisions in this Section that the
16defendant is in need of mental health services on an inpatient
17basis, it shall order the facility director not to discharge or
18release the defendant in accordance with paragraph (b) of this
19Section.
20    (i) If within the period of the defendant's conditional
21release the State's Attorney determines that the defendant has
22not fulfilled the conditions of his or her release, the State's
23Attorney may petition the Court to revoke or modify the
24conditional release of the defendant. Upon the filing of such
25petition the defendant may be remanded to the custody of the
26Department, or to any other mental health facility designated

 

 

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1by the Department, pending the resolution of the petition.
2Nothing in this Section shall prevent the emergency admission
3of a defendant pursuant to Article VI of Chapter III of the
4Mental Health and Developmental Disabilities Code or the
5voluntary admission of the defendant pursuant to Article IV of
6Chapter III of the Mental Health and Developmental Disabilities
7Code. If the Court determines, after hearing evidence, that the
8defendant has not fulfilled the conditions of release, the
9Court shall order a hearing to be held consistent with the
10provisions of paragraph (f) and (g) of this Section. At such
11hearing, if the Court finds that the defendant is in need of
12mental health services on an inpatient basis, it shall enter an
13order remanding him or her to the Department of Human Services
14or other facility. If the defendant is remanded to the
15Department of Human Services, he or she shall be placed in a
16secure setting unless the Court determines that there are
17compelling reasons that such placement is not necessary. If the
18Court finds that the defendant continues to be in need of
19mental health services but not on an inpatient basis, it may
20modify the conditions of the original release in order to
21reasonably assure the defendant's satisfactory progress in
22treatment and his or her safety and the safety of others in
23accordance with the standards established in paragraph (D) of
24subsection (a-1). Nothing in this Section shall limit a Court's
25contempt powers or any other powers of a Court.
26    (j) An order of admission under this Section does not

 

 

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1affect the remedy of habeas corpus.
2    (k) In the event of a conflict between this Section and the
3Mental Health and Developmental Disabilities Code or the Mental
4Health and Developmental Disabilities Confidentiality Act, the
5provisions of this Section shall govern.
6    (l) This amendatory Act shall apply to all persons who have
7been found not guilty by reason of insanity and who are
8presently committed to the Department of Mental Health and
9Developmental Disabilities (now the Department of Human
10Services).
11    (m) The Clerk of the Court shall transmit a certified copy
12of the order of discharge or conditional release to the
13Department of Human Services, to the sheriff of the county from
14which the defendant was admitted, to the Illinois Department of
15State Police, to the proper law enforcement agency for the
16municipality where the offense took place, and to the sheriff
17of the county into which the defendant is conditionally
18discharged. The Illinois Department of State Police shall
19maintain a centralized record of discharged or conditionally
20released defendants while they are under court supervision for
21access and use of appropriate law enforcement agencies.
22(Source: P.A. 98-1025, eff. 8-22-14.)
 
23    Section 99. Effective date. This Act takes effect January
241, 2017.