Full Text of HB0649 100th General Assembly
HB0649ham001 100TH GENERAL ASSEMBLY | Rep. Arthur Turner Filed: 3/24/2017
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| 1 | | AMENDMENT TO HOUSE BILL 649
| 2 | | AMENDMENT NO. ______. Amend House Bill 649 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended by changing Sections 104-17, 104-18, and 104-20 as | 6 | | follows:
| 7 | | (725 ILCS 5/104-17) (from Ch. 38, par. 104-17)
| 8 | | Sec. 104-17. Commitment for Treatment; Treatment Plan.
| 9 | | (a) If the defendant
is eligible to be or has been released | 10 | | on bail or on his own recognizance,
the court shall select the | 11 | | least physically restrictive form of treatment
therapeutically | 12 | | appropriate and consistent with the treatment plan. The | 13 | | placement may be ordered either on an inpatient or an | 14 | | outpatient basis.
| 15 | | (b) If the defendant's disability is mental, the court may | 16 | | order him placed
for treatment in the custody of the Department |
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| 1 | | of Human Services, or the court may order him placed in
the | 2 | | custody of any other
appropriate public or private mental | 3 | | health facility or treatment program
which has agreed to | 4 | | provide treatment to the defendant. If the court orders the | 5 | | defendant placed in the custody of the Department of Human | 6 | | Services, the Department shall evaluate the defendant to | 7 | | determine to which secure facility the defendant shall be | 8 | | transported and, within 20 days of the transmittal by the clerk | 9 | | of the circuit court of the placement order, notify the sheriff | 10 | | of the designated facility. Upon receipt of that notice, the | 11 | | sheriff shall promptly transport the defendant to the | 12 | | designated facility. If the defendant
is placed in the custody | 13 | | of the Department of Human Services, the defendant shall be | 14 | | placed in a
secure setting. During
the period of time required | 15 | | to determine the appropriate placement the
defendant shall | 16 | | remain in jail. If during the course of evaluating the | 17 | | defendant for placement, upon the completion of the placement | 18 | | process the Department of Human Services determines that the | 19 | | defendant is currently fit to stand trial, it shall immediately | 20 | | notify the court and shall submit a written report within 7 | 21 | | days. In that circumstance the placement shall be held pending | 22 | | a court hearing on the Department's report. Otherwise, upon | 23 | | completion of the placement process, the
sheriff shall be | 24 | | notified and shall transport the defendant to the designated
| 25 | | facility. If, within 20 days of the transmittal by the clerk of | 26 | | the circuit court of the placement order, the Department fails |
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| 1 | | to notify the sheriff of the identity of the facility to which | 2 | | the defendant shall be transported, the sheriff shall contact a | 3 | | designated person within the Department to inquire about when a | 4 | | placement will become available at the designated facility and | 5 | | bed availability at other facilities. If, within
20 days of the | 6 | | transmittal by the clerk of the circuit court of the placement | 7 | | order, the Department
fails to notify the sheriff of the | 8 | | identity of the facility to
which the defendant shall be | 9 | | transported, the sheriff shall
notify the Department of its | 10 | | intent to transfer the defendant to the nearest secure mental | 11 | | health facility operated by the Department and inquire as to | 12 | | the status of the evaluation and availability for placement in | 13 | | such facility operated by the Department by contacting a | 14 | | designated person within the Department. The Department shall | 15 | | respond to the sheriff within 2 business days of the notice and | 16 | | inquiry by the sheriff seeking the transfer and the Department | 17 | | shall provide the sheriff with the status of the evaluation, | 18 | | information on bed and placement availability, and an estimated | 19 | | date of admission for the defendant and any changes to that | 20 | | estimated date of admission. If the Department notifies the | 21 | | sheriff during the 2 business day period of a facility operated | 22 | | by the Department with placement availability, the sheriff | 23 | | shall promptly transport the defendant to that facility. The | 24 | | placement may be ordered either on an inpatient or an | 25 | | outpatient
basis.
| 26 | | (c) If the defendant's disability is physical, the court |
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| 1 | | may order him
placed under the supervision of the Department of | 2 | | Human
Services
which shall place and maintain the defendant in | 3 | | a suitable treatment facility
or program, or the court may | 4 | | order him placed in an appropriate public or
private facility | 5 | | or treatment program which has agreed to provide treatment
to | 6 | | the defendant. The placement may be ordered either on an | 7 | | inpatient or
an outpatient basis.
| 8 | | (d) The clerk of the circuit court shall within 5 days of | 9 | | the entry of the order transmit to the Department, agency
or | 10 | | institution, if any, to which the defendant is remanded for | 11 | | treatment, the
following:
| 12 | | (1) a certified copy of the order to undergo treatment. | 13 | | Accompanying the certified copy of the order to undergo | 14 | | treatment shall be the complete copy of any report prepared | 15 | | under Section 104-15 of this Code or other report prepared | 16 | | by a forensic examiner for the court;
| 17 | | (2) the county and municipality in which the offense | 18 | | was committed;
| 19 | | (3) the county and municipality in which the arrest | 20 | | took place; | 21 | | (4) a copy of the arrest report, criminal charges, | 22 | | arrest record; and
| 23 | | (5) all additional matters which the Court directs the | 24 | | clerk to transmit.
| 25 | | (e) Within 30 days of entry of an order to undergo | 26 | | treatment, the person
supervising the defendant's treatment |
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| 1 | | shall file with the court, the State,
and the defense a report | 2 | | assessing the facility's or program's capacity
to provide | 3 | | appropriate treatment for the defendant and indicating his | 4 | | opinion
as to the probability of the defendant's attaining | 5 | | fitness within a period
of time from the date of the finding of | 6 | | unfitness. For a defendant charged with a felony, the period of | 7 | | time shall be one year. For a defendant charged with a | 8 | | misdemeanor, the period of time shall be no longer than the | 9 | | sentence if convicted of the most serious offense. If the | 10 | | report indicates
that there is a substantial probability that | 11 | | the defendant will attain fitness
within the time period, the | 12 | | treatment supervisor shall also file a treatment
plan which | 13 | | shall include:
| 14 | | (1) A diagnosis of the defendant's disability;
| 15 | | (2) A description of treatment goals with respect to | 16 | | rendering the
defendant
fit, a specification of the | 17 | | proposed treatment modalities, and an estimated
timetable | 18 | | for attainment of the goals;
| 19 | | (3) An identification of the person in charge of | 20 | | supervising the
defendant's
treatment.
| 21 | | (Source: P.A. 98-1025, eff. 8-22-14; 99-140, eff. 1-1-16 .)
| 22 | | (725 ILCS 5/104-18) (from Ch. 38, par. 104-18)
| 23 | | Sec. 104-18. Progress Reports. | 24 | | (a) The treatment supervisor shall submit
a written | 25 | | progress report to the court, the State, and the defense:
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| 1 | | (1) At least 7 days prior to the date for any hearing | 2 | | on the issue of
the defendant's fitness;
| 3 | | (2) Whenever he believes that the defendant has | 4 | | attained fitness;
| 5 | | (3) Whenever he believes that there is not a | 6 | | substantial probability that
the defendant will attain | 7 | | fitness, with treatment, within the time period set in | 8 | | subsection (e) of Section 104-17 of this Code from
the date | 9 | | of the original finding of unfitness.
| 10 | | (b) The progress report shall contain:
| 11 | | (1) The clinical findings of the treatment supervisor | 12 | | and the facts upon
which the findings are based;
| 13 | | (2) The opinion of the treatment supervisor as to | 14 | | whether the defendant
has attained fitness or as to whether | 15 | | the defendant is making progress,
under treatment, toward | 16 | | attaining fitness within the time period set in subsection | 17 | | (e) of Section 104-17 of this Code from the date
of the | 18 | | original finding of unfitness;
| 19 | | (3) If the defendant is receiving medication, | 20 | | information from the prescribing
physician indicating the | 21 | | type, the dosage and the effect of the medication
on the | 22 | | defendant's appearance, actions and demeanor.
| 23 | | (c) Whenever the court is sent a report from the supervisor | 24 | | of the defendant's treatment under paragraph (2) of subsection | 25 | | (a) of this Section, the treatment provider shall arrange with | 26 | | the county jail court for the immediate return of the defendant |
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| 1 | | to the county jail under subsection (e) before the time frame | 2 | | specified in subsection (a) of Section 104-20 of this Code. | 3 | | (Source: P.A. 98-944, eff. 8-15-14; 98-1025, eff. 8-22-14; | 4 | | 99-78, eff. 7-20-15.)
| 5 | | (725 ILCS 5/104-20) (from Ch. 38, par. 104-20)
| 6 | | Sec. 104-20. Ninety-Day Hearings; Continuing Treatment.) | 7 | | (a) Upon entry
or continuation of any order to undergo | 8 | | treatment, the court shall set a
date for hearing to reexamine | 9 | | the issue of the defendant's fitness not more
than 90 days | 10 | | thereafter. In addition, whenever the court receives a report
| 11 | | from the supervisor of the defendant's treatment pursuant to | 12 | | subparagraph
(2) or (3) of paragraph (a) of Section 104-18, the | 13 | | court shall forthwith
set the matter for a first hearing within | 14 | | 14 days unless good cause is demonstrated why the hearing | 15 | | cannot be held. On the date set or upon conclusion of the | 16 | | matter
then pending before it, the court, sitting without a | 17 | | jury, shall conduct
a hearing, unless waived by the defense, | 18 | | and shall determine:
| 19 | | (1) Whether the defendant is fit to stand trial or to | 20 | | plead; and if not,
| 21 | | (2) Whether the defendant is making progress under | 22 | | treatment toward attainment
of fitness within the time | 23 | | period set in subsection (e) of Section 104-17 of this Code | 24 | | from the date of the original finding
of unfitness.
| 25 | | (b) If the court finds the defendant to be fit pursuant to |
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| 1 | | this Section,
the court shall set the matter for trial; | 2 | | provided that if the defendant
is in need of continued care or | 3 | | treatment and the supervisor of the defendant's
treatment | 4 | | agrees to continue to provide it, the court may enter any order
| 5 | | it deems appropriate for the continued care or treatment of the | 6 | | defendant
by the facility or program pending the conclusion of | 7 | | the criminal proceedings.
| 8 | | (c) If the court finds that the defendant is still unfit | 9 | | but that he is
making progress toward attaining fitness, the | 10 | | court may continue or modify
its original treatment order | 11 | | entered pursuant to Section 104-17.
| 12 | | (d) If the court finds that the defendant is still unfit | 13 | | and that he is
not making progress toward attaining fitness | 14 | | such that there is not a
substantial probability that he will | 15 | | attain fitness within the time period set in subsection (e) of | 16 | | Section 104-17 of this Code from
the date of the original | 17 | | finding of unfitness, the court shall proceed pursuant
to | 18 | | Section 104-23. However, if the defendant is in need of | 19 | | continued care
and treatment and the supervisor of the | 20 | | defendant's treatment agrees to
continue to provide it, the | 21 | | court may enter any order it deems appropriate
for the | 22 | | continued care or treatment by the facility or program pending | 23 | | the
conclusion of the criminal proceedings.
| 24 | | (e) Whenever the court receives a report from the | 25 | | supervisor of the defendant's treatment under paragraph (2) of | 26 | | subsection (a) of Section 104-18 of this Code, the court shall |
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| 1 | | immediately enter an order directing the sheriff to return the | 2 | | defendant to the county jail and set the matter for trial. At | 3 | | any time the issue of the defendant's fitness can be raised | 4 | | again under Section 104-11 of this Code. If the court finds | 5 | | that the defendant is still unfit after being recommended as | 6 | | fit by the supervisor of the defendant's treatment, the court | 7 | | shall attach a copy of any written report that identifies the | 8 | | factors in the finding that the defendant continues to be | 9 | | unfit, prepared by a licensed physician, clinical | 10 | | psychologist, or psychiatrist, to the court order remanding the | 11 | | person for further treatment. | 12 | | (Source: P.A. 98-1025, eff. 8-22-14; 99-140, eff. 1-1-16 .)
| 13 | | Section 10. The Unified Code of Corrections is amended by | 14 | | changing Section 5-2-4 as follows:
| 15 | | (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
| 16 | | Sec. 5-2-4. Proceedings after Acquittal by Reason of | 17 | | Insanity.
| 18 | | (a) After a finding or verdict of not guilty by reason of | 19 | | insanity
under Sections 104-25, 115-3 or 115-4 of the Code of | 20 | | Criminal Procedure
of 1963, the defendant shall be ordered to | 21 | | the Department of Human Services for
an evaluation as to
| 22 | | whether he is in need of mental health
services. The order
| 23 | | shall specify whether the evaluation shall be conducted on an | 24 | | inpatient or
outpatient basis. If the evaluation is to be |
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| 1 | | conducted on an inpatient
basis, the defendant shall be placed | 2 | | in a secure setting. With the court order for evaluation shall | 3 | | be sent a copy of the arrest report, criminal charges, arrest | 4 | | record, jail record, any report prepared under Section 115-6 of | 5 | | the Code of Criminal Procedure of 1963, and any victim impact | 6 | | statement prepared under Section 6 of the Rights of Crime | 7 | | Victims and Witnesses Act. The clerk of the circuit court shall | 8 | | transmit this information to the Department within 5 days. If | 9 | | the court orders that the evaluation be done on an inpatient | 10 | | basis, the Department shall evaluate the defendant to determine | 11 | | to which secure facility the defendant shall be transported | 12 | | and, within 20 days of the transmittal by the clerk of the | 13 | | circuit court of the placement order, notify the sheriff of the | 14 | | designated facility. Upon receipt of that notice, the sheriff | 15 | | shall promptly transport the defendant to the designated | 16 | | facility. During
After the evaluation and during the period of | 17 | | time required to
determine the appropriate placement, the | 18 | | defendant shall
remain in jail. If, within 20 days of the | 19 | | transmittal by the clerk of the circuit court of the placement | 20 | | order, the Department fails to notify the sheriff of the | 21 | | identity of the facility to which the defendant shall be | 22 | | transported, the sheriff shall contact a designated person | 23 | | within the Department to inquire about when a placement will | 24 | | become available at the designated facility and bed | 25 | | availability at other facilities. If, within
20 days of the | 26 | | transmittal by the clerk of the circuit court of the placement |
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| 1 | | order, the Department
fails to notify the sheriff of the | 2 | | identity of the facility to
which the defendant shall be | 3 | | transported, the sheriff shall
notify the Department of its | 4 | | intent to transfer the defendant to the nearest secure mental | 5 | | health facility operated by the Department and inquire as to | 6 | | the status of the evaluation and availability for placement in | 7 | | such facility operated by the Department by contacting a | 8 | | designated person within the Department. The Department shall | 9 | | respond to the sheriff within 2 business days of the notice and | 10 | | inquiry by the sheriff seeking the transfer and the Department | 11 | | shall provide the sheriff with the status of the evaluation, | 12 | | information on bed and placement availability, and an estimated | 13 | | date of admission for the defendant and any changes to that | 14 | | estimated date of admission. If the Department notifies the | 15 | | sheriff during the 2 business day period of a facility operated | 16 | | by the Department with placement availability, the sheriff | 17 | | shall promptly transport the defendant to that facility.
| 18 | | Individualized placement evaluations by the Department of | 19 | | Human Services determine the most appropriate setting for | 20 | | forensic treatment based upon a number of factors including | 21 | | mental health diagnosis, proximity to surviving victims, | 22 | | security need, age, gender, and proximity to family. Upon | 23 | | completion of the placement process the sheriff shall be | 24 | | notified and
shall transport the defendant to the designated | 25 | | facility.
| 26 | | The Department shall provide the Court with a report of its |
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| 1 | | evaluation
within 30 days of the date of this order. The Court | 2 | | shall hold a hearing
as provided under the Mental Health and | 3 | | Developmental Disabilities Code to
determine if the individual | 4 | | is:
(a)
in need of mental health services on an inpatient | 5 | | basis; (b) in
need of
mental health services on an outpatient | 6 | | basis; (c) a person not in
need of
mental health services. The | 7 | | Court shall enter its findings.
| 8 | | If the defendant is found to be in
need
of mental health | 9 | | services on an inpatient care basis, the Court shall order the
| 10 | | defendant to the Department of Human Services.
The defendant | 11 | | shall be placed in a secure setting. Such
defendants placed in | 12 | | a secure setting shall not be permitted outside the
facility's | 13 | | housing unit unless escorted or accompanied by personnel of the
| 14 | | Department of Human Services or with the prior approval of the | 15 | | Court for
unsupervised
on-grounds privileges as provided
| 16 | | herein.
Any defendant placed in a secure setting pursuant to | 17 | | this Section,
transported to court hearings or other necessary | 18 | | appointments
off facility grounds
by personnel of
the | 19 | | Department of Human Services, shall be
placed in security | 20 | | devices
or otherwise secured during the period of | 21 | | transportation to assure
secure transport of the defendant and | 22 | | the safety of Department
of Human Services personnel and | 23 | | others. These security measures
shall not constitute restraint | 24 | | as defined in the Mental Health and
Developmental Disabilities | 25 | | Code.
If the defendant is found to be in need of mental health | 26 | | services,
but not on an inpatient care basis, the Court shall |
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| 1 | | conditionally release
the defendant, under such conditions as | 2 | | set forth in this Section as will
reasonably assure the | 3 | | defendant's satisfactory progress and participation
in | 4 | | treatment or
rehabilitation and the safety of the defendant and | 5 | | others. If the
Court
finds the person not in need of mental | 6 | | health services, then the Court
shall order the defendant | 7 | | discharged from custody.
| 8 | | (a-1) Definitions. For the purposes of this Section:
| 9 | | (A) (Blank).
| 10 | | (B) "In need of mental health services on an inpatient | 11 | | basis" means: a
defendant who has been found not guilty by | 12 | | reason of insanity but who due to mental illness is
| 13 | | reasonably expected to inflict
serious physical harm upon | 14 | | himself or another and who would benefit from
inpatient | 15 | | care or is in need of inpatient care.
| 16 | | (C) "In need of mental health services on an outpatient | 17 | | basis" means:
a defendant who has been found not guilty by | 18 | | reason of insanity who is not in need of mental health | 19 | | services on
an inpatient basis, but is in need of | 20 | | outpatient care, drug and/or alcohol
rehabilitation | 21 | | programs, community adjustment programs, individual, | 22 | | group,
or family therapy, or chemotherapy.
| 23 | | (D) "Conditional Release" means: the release from | 24 | | either the custody
of the Department of Human Services
or | 25 | | the custody of the Court of a person who has been found not | 26 | | guilty by
reason of insanity under such conditions as the |
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| 1 | | Court may impose which
reasonably assure the defendant's | 2 | | satisfactory progress in
treatment or habilitation and the | 3 | | safety of the defendant and others. The
Court shall | 4 | | consider such terms and conditions which may include, but | 5 | | need
not be limited to, outpatient care, alcoholic and drug | 6 | | rehabilitation programs,
community adjustment programs, | 7 | | individual, group, family, and chemotherapy,
random | 8 | | testing to ensure the defendant's timely and continuous | 9 | | taking of any
medicines prescribed
to control or manage his | 10 | | or her conduct or mental state, and
periodic checks with | 11 | | the legal authorities and/or the Department of Human
| 12 | | Services.
The Court may order as a condition of conditional | 13 | | release that the
defendant not contact the victim of the | 14 | | offense that
resulted in the finding or
verdict of not | 15 | | guilty by reason of insanity or any other person. The Court | 16 | | may
order the
Department of
Human Services to provide care | 17 | | to any
person conditionally released under this Section. | 18 | | The Department may contract
with any public or private | 19 | | agency in order to discharge any responsibilities
imposed | 20 | | under this Section. The Department shall monitor the | 21 | | provision of
services to persons conditionally released | 22 | | under this Section and provide
periodic reports to the | 23 | | Court concerning the services and the condition of the
| 24 | | defendant.
Whenever a person is conditionally released | 25 | | pursuant to this Section, the
State's Attorney for the | 26 | | county in which the hearing is held shall designate in
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| 1 | | writing the name, telephone number, and address of a person | 2 | | employed by him or
her who
shall be notified in the event | 3 | | that either the reporting agency or the
Department decides | 4 | | that the conditional release of the defendant should be
| 5 | | revoked or modified pursuant to subsection (i) of this | 6 | | Section. Such
conditional release shall be for
a period of | 7 | | five years. However, the defendant, the person or
facility
| 8 | | rendering the treatment, therapy, program or outpatient | 9 | | care, the
Department, or the
State's Attorney may petition | 10 | | the Court for an extension of
the conditional
release | 11 | | period for an additional 5 years. Upon receipt of such a
| 12 | | petition, the Court shall hold a hearing consistent with | 13 | | the provisions of
paragraph (a), this paragraph (a-1),
and | 14 | | paragraph (f) of this Section, shall determine
whether the | 15 | | defendant should continue to be subject to the terms of
| 16 | | conditional release, and shall enter an order either | 17 | | extending the
defendant's period of conditional release | 18 | | for an additional
5
year period or discharging the | 19 | | defendant.
Additional 5-year periods of conditional | 20 | | release may be ordered following a
hearing as provided in | 21 | | this Section. However,
in no event shall the defendant's
| 22 | | period of conditional release continue beyond the maximum | 23 | | period of
commitment ordered by the Court pursuant to | 24 | | paragraph (b) of this Section. These provisions for
| 25 | | extension of conditional release shall only apply to | 26 | | defendants
conditionally released on or after August 8, |
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| 1 | | 2003. However the extension
provisions of Public Act | 2 | | 83-1449 apply only to defendants charged
with a forcible | 3 | | felony.
| 4 | | (E) "Facility director" means the chief officer of a | 5 | | mental health or
developmental disabilities facility or | 6 | | his or her designee or the supervisor of
a program of | 7 | | treatment or habilitation or his or her designee. | 8 | | "Designee" may
include a physician, clinical psychologist, | 9 | | social worker, nurse, or clinical
professional counselor.
| 10 | | (b) If the Court finds the defendant in need of mental | 11 | | health services on an
inpatient basis, the
admission, | 12 | | detention, care, treatment or habilitation, treatment plans,
| 13 | | review proceedings, including review of treatment and | 14 | | treatment plans, and
discharge of the defendant after such | 15 | | order shall be under the
Mental Health and Developmental | 16 | | Disabilities Code, except that the
initial order for admission | 17 | | of a defendant acquitted of a felony by
reason of insanity | 18 | | shall be for an indefinite period of time. Such period
of | 19 | | commitment shall not exceed the maximum
length of time that the | 20 | | defendant would have been required to serve,
less credit for | 21 | | good behavior as provided in Section 5-4-1 of the Unified
Code | 22 | | of Corrections, before becoming eligible for
release had
he | 23 | | been convicted of and received the maximum sentence for the | 24 | | most
serious crime for which he has been acquitted by reason of | 25 | | insanity. The
Court shall determine the maximum period of | 26 | | commitment by an appropriate
order. During this period of time, |
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| 1 | | the defendant shall not be permitted
to be in the community in | 2 | | any manner, including but not limited to off-grounds
| 3 | | privileges, with or without escort by personnel of the | 4 | | Department of Human
Services, unsupervised on-grounds | 5 | | privileges,
discharge or conditional or temporary release, | 6 | | except by a plan as provided in
this Section. In no event shall | 7 | | a defendant's continued unauthorized
absence be a basis for | 8 | | discharge. Not more than 30 days after admission
and every 60 | 9 | | days thereafter so long as the initial order
remains in effect, | 10 | | the facility director shall file a treatment plan report
in | 11 | | writing with the court
and forward a copy of the treatment plan | 12 | | report to the clerk of the
court, the State's Attorney, and the | 13 | | defendant's attorney, if the defendant is
represented by | 14 | | counsel,
or to a person authorized by
the defendant under the
| 15 | | Mental Health and Developmental Disabilities Confidentiality | 16 | | Act to be sent a
copy of the report. The report shall include | 17 | | an opinion
as to whether the
defendant is currently in need of | 18 | | mental
health services on an inpatient basis or in need of | 19 | | mental health services
on
an outpatient basis. The report shall | 20 | | also summarize the basis for those
findings and provide a | 21 | | current summary of the following items from the
treatment plan: | 22 | | (1) an assessment of the defendant's treatment needs, (2) a
| 23 | | description of the services recommended for treatment, (3) the | 24 | | goals of each
type of element of service, (4) an anticipated | 25 | | timetable for the accomplishment
of the goals, and (5) a | 26 | | designation of the qualified professional responsible
for the |
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| 1 | | implementation of the plan.
The report may also include | 2 | | unsupervised on-grounds
privileges, off-grounds privileges | 3 | | (with or without escort by personnel of the
Department of Human | 4 | | Services), home visits and
participation in work
programs, but | 5 | | only where such privileges have been approved by specific court
| 6 | | order, which order may include such conditions on the defendant | 7 | | as the
Court may deem appropriate and necessary to reasonably | 8 | | assure the defendant's
satisfactory progress in treatment and | 9 | | the safety of the defendant and others.
| 10 | | (c) Every defendant acquitted of a felony by reason of | 11 | | insanity and
subsequently found to be in need of
mental health | 12 | | services shall be represented by counsel in all proceedings | 13 | | under
this Section and under the Mental Health and | 14 | | Developmental Disabilities Code.
| 15 | | (1) The Court shall appoint as counsel the public | 16 | | defender or an
attorney licensed by this State.
| 17 | | (2) Upon filing with the Court of a verified statement | 18 | | of legal
services rendered by the private attorney | 19 | | appointed pursuant to
paragraph (1) of this subsection, the | 20 | | Court shall determine a reasonable
fee for such services. | 21 | | If the defendant is unable to pay the fee, the
Court shall | 22 | | enter an order upon the State to pay the entire fee or such
| 23 | | amount as the defendant is unable to pay from funds | 24 | | appropriated by the
General Assembly for that purpose.
| 25 | | (d) When the facility director determines that:
| 26 | | (1) the defendant is no longer
in need of mental health |
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| 1 | | services on an inpatient basis; and
| 2 | | (2) the defendant may be conditionally released | 3 | | because he
or she is still in need of mental health | 4 | | services or that the defendant
may be discharged as not in | 5 | | need of any mental health services; or
| 6 | | (3) (blank);
| 7 | | the facility director shall give written notice
to the Court, | 8 | | State's Attorney and defense attorney.
Such notice shall set | 9 | | forth in detail the basis for the recommendation of
the | 10 | | facility director, and specify clearly the recommendations, if | 11 | | any,
of the facility director, concerning conditional release.
| 12 | | Any recommendation for conditional release shall include an | 13 | | evaluation of
the defendant's need for psychotropic | 14 | | medication, what provisions should be
made, if any, to ensure | 15 | | that the defendant will continue to receive
psychotropic | 16 | | medication following discharge, and what provisions should be | 17 | | made
to assure the safety of the defendant and others in the | 18 | | event the defendant is
no longer receiving psychotropic | 19 | | medication.
Within 30 days of
the notification by the facility | 20 | | director, the Court shall set a hearing and
make a finding as | 21 | | to whether the defendant is:
| 22 | | (i) (blank); or
| 23 | | (ii) in need of mental health services in the form of | 24 | | inpatient care; or
| 25 | | (iii) in need of mental health services but not subject | 26 | | to inpatient care;
or
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| 1 | | (iv) no longer in need of mental health services; or
| 2 | | (v) (blank).
| 3 | | Upon finding by the Court, the Court shall enter its | 4 | | findings and such
appropriate order as provided in subsections | 5 | | (a) and (a-1) of this Section.
| 6 | | (e) A defendant admitted pursuant to this Section, or any | 7 | | person on
his behalf, may file a petition for treatment plan | 8 | | review
or discharge or conditional release under the
standards | 9 | | of this Section in the Court which rendered the verdict. Upon
| 10 | | receipt of a petition for treatment plan review or discharge or | 11 | | conditional release, the Court shall set a hearing to
be held | 12 | | within 120 days. Thereafter, no new petition
may be filed for | 13 | | 180 days
without leave of the Court.
| 14 | | (f) The Court shall direct that notice of the time and | 15 | | place of the
hearing be served upon the defendant, the facility | 16 | | director, the State's
Attorney, and the defendant's attorney. | 17 | | If requested by either the State or the
defense or if the Court | 18 | | feels it is appropriate, an impartial examination
of the | 19 | | defendant by a psychiatrist or clinical psychologist as defined | 20 | | in
Section 1-103 of the Mental Health and Developmental | 21 | | Disabilities Code who
is not in the employ of the Department of | 22 | | Human Services shall be ordered, and
the report considered at
| 23 | | the time of the hearing.
| 24 | | (g) The findings of the Court shall be established by clear | 25 | | and
convincing evidence. The burden of proof and the burden of | 26 | | going forth
with the evidence rest with the defendant or any |
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| 1 | | person on the defendant's
behalf when a hearing is held to | 2 | | review
a petition filed by or on
behalf of the defendant. The | 3 | | evidence shall be presented in open
Court
with the right of | 4 | | confrontation and cross-examination.
Such evidence may | 5 | | include, but is not limited to:
| 6 | | (1) whether the defendant appreciates the harm caused | 7 | | by the defendant to
others and the community by his or her | 8 | | prior
conduct
that resulted in the finding of not guilty by | 9 | | reason of insanity;
| 10 | | (2) Whether the person appreciates the criminality of | 11 | | conduct similar to
the conduct for which he or she was | 12 | | originally charged in this matter;
| 13 | | (3) the current state of
the defendant's illness;
| 14 | | (4) what, if any, medications the defendant is taking | 15 | | to
control his or her mental illness;
| 16 | | (5) what, if any, adverse physical side effects
the | 17 | | medication has on the defendant;
| 18 | | (6) the length of time it would take for the | 19 | | defendant's mental health to
deteriorate
if
the
defendant | 20 | | stopped taking prescribed medication;
| 21 | | (7) the defendant's history or potential for alcohol | 22 | | and drug abuse;
| 23 | | (8) the defendant's past criminal history;
| 24 | | (9) any specialized physical or medical needs of the | 25 | | defendant;
| 26 | | (10) any family participation or involvement expected |
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| 1 | | upon release and
what is the willingness and ability of the | 2 | | family to participate or be
involved;
| 3 | | (11) the defendant's potential to be a danger to | 4 | | himself, herself, or
others; and
| 5 | | (12) any other factor or factors the Court deems | 6 | | appropriate.
| 7 | | (h) Before the court orders that the defendant be | 8 | | discharged or
conditionally released, it shall order the | 9 | | facility director to establish a
discharge plan that includes a | 10 | | plan for the defendant's shelter, support, and
medication. If | 11 | | appropriate, the court shall order that the facility director
| 12 | | establish a program to train the defendant in self-medication | 13 | | under standards
established by the Department of Human | 14 | | Services.
If the Court finds, consistent with the provisions of | 15 | | this Section,
that the defendant is no longer in need of mental
| 16 | | health services it shall order the facility director to | 17 | | discharge the
defendant. If the Court finds, consistent with | 18 | | the provisions of this
Section, that the defendant is in need | 19 | | of mental
health services, and no longer in need of inpatient | 20 | | care, it shall order
the facility director to release the | 21 | | defendant under such conditions as the
Court deems appropriate | 22 | | and as provided by this Section. Such conditional
release shall | 23 | | be imposed for a period of 5 years as provided in
paragraph
(D) | 24 | | of subsection (a-1) and shall be
subject
to later modification | 25 | | by the Court as provided by this Section. If the
Court finds | 26 | | consistent with the provisions in this Section that the
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| 1 | | defendant is in
need of mental health services on an inpatient | 2 | | basis, it shall order the
facility director not to discharge or | 3 | | release the defendant in accordance
with paragraph (b) of this | 4 | | Section.
| 5 | | (i) If within the period of the defendant's conditional | 6 | | release
the State's Attorney determines that the defendant has | 7 | | not fulfilled the
conditions of his or her release, the State's | 8 | | Attorney may petition the
Court
to
revoke or modify the | 9 | | conditional release of the defendant. Upon the filing of
such | 10 | | petition the defendant may be remanded to the custody of the | 11 | | Department,
or to any other mental health facility designated | 12 | | by the Department, pending
the resolution of the petition. | 13 | | Nothing in this Section shall prevent the
emergency admission | 14 | | of a defendant pursuant to Article VI of Chapter III of the
| 15 | | Mental Health
and Developmental Disabilities Code or the | 16 | | voluntary admission of the defendant
pursuant to Article IV of | 17 | | Chapter III of the Mental Health and Developmental
Disabilities
| 18 | | Code. If
the Court determines, after hearing evidence, that the | 19 | | defendant has
not fulfilled the conditions of release, the | 20 | | Court shall order a hearing
to be held consistent with the | 21 | | provisions of paragraph (f) and (g) of this
Section. At such | 22 | | hearing, if the Court finds that the defendant is in need of | 23 | | mental health services on an inpatient
basis, it shall enter an | 24 | | order remanding him or her to the Department of
Human Services | 25 | | or other
facility. If the defendant is remanded to the | 26 | | Department of Human Services, he
or she shall be placed in
a |
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| 1 | | secure setting unless the Court
determines that there are | 2 | | compelling reasons that such placement is not
necessary. If the
| 3 | | Court finds that the defendant continues to be in need of | 4 | | mental health
services but not on an inpatient basis, it may | 5 | | modify the conditions of
the original release in order to | 6 | | reasonably assure the defendant's satisfactory
progress in | 7 | | treatment and his or her safety and the safety of others in
| 8 | | accordance with the standards established in paragraph (D) of | 9 | | subsection (a-1). Nothing in
this Section shall limit a Court's | 10 | | contempt powers or any other powers of a
Court.
| 11 | | (j) An order of admission under this Section does not | 12 | | affect the
remedy of habeas corpus.
| 13 | | (k) In the event of a conflict between this Section and the | 14 | | Mental Health
and Developmental Disabilities Code or the Mental | 15 | | Health and Developmental
Disabilities Confidentiality Act, the | 16 | | provisions of this Section shall govern.
| 17 | | (l) This amendatory Act shall apply to all persons who have | 18 | | been found
not guilty by reason of insanity and who are | 19 | | presently committed to the
Department of Mental Health and | 20 | | Developmental Disabilities (now the
Department of Human | 21 | | Services).
| 22 | | (m)
The Clerk of the Court shall transmit a certified copy | 23 | | of the order of
discharge or conditional release to the | 24 | | Department of Human Services, to the sheriff of the county from | 25 | | which the defendant was admitted, to the Illinois Department of | 26 | | State Police, to
the proper law enforcement agency for the |
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| 1 | | municipality
where the offense took
place, and to the sheriff | 2 | | of the county into which the defendant is
conditionally | 3 | | discharged. The Illinois Department of State Police shall
| 4 | | maintain a
centralized record of discharged or conditionally | 5 | | released defendants while
they are under court supervision for | 6 | | access and use of appropriate law
enforcement agencies.
| 7 | | (Source: P.A. 98-1025, eff. 8-22-14.)".
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