Public Act 90-0105 of the 90th General Assembly
Public Act 90-0105
SB851 Enrolled LRB9002179WHmg
AN ACT concerning mental health, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Criminal Procedure of 1963 is
amended by adding Section 102-22 and changing Section 104-31
as follows:
(725 ILCS 5/102-22 new)
Sec. 102-22. "Facility director", for the purposes of
Article 104, means the chief officer of a mental health or
developmental disabilities facility or his or her designee or
the supervisor of a program of treatment or habilitation or
his or her designee. "Designee" may include a physician,
clinical psychologist, social worker, or nurse.
(725 ILCS 5/104-31) (from Ch. 38, par. 104-31)
(Text of Section in effect until July 1, 1997)
Sec. 104-31. No defendant placed in a secure setting of
the Department of Mental Health and Developmental
Disabilities pursuant to the provisions of Sections 104-17,
104-25, or 104-26 shall be permitted outside the facility's
housing unit unless escorted or accompanied by personnel of
the Department of Mental Health and Developmental
Disabilities. Any defendant placed in a secure setting
pursuant to this Section, transported to court hearings or
other necessary appointments off facility grounds by
personnel of the Department of Mental Health and
Developmental Disabilities, may be placed in security devices
or otherwise secured during the period of transportation to
assure secure transport of the defendant and the safety of
Department of Mental Health and Developmental Disabilities
personnel and others. These security measures shall not
constitute restraint as defined in the Mental Health and
Developmental Disabilities Code. Nor shall such defendant be
permitted any off-grounds privileges, either with or without
escort by personnel of the Department of Mental Health and
Developmental Disabilities, or any unsupervised on-ground
privileges, unless such off-grounds or unsupervised
on-grounds privileges have been approved by specific court
order, which order may include such conditions on the
defendant as the court may deem appropriate and necessary to
reasonably assure the defendant's satisfactory progress in
treatment and the safety of the defendant or others.
(Source: P.A. 84-1308.)
(Text of Section taking effect July 1, 1997)
Sec. 104-31. No defendant placed in a secure setting of
the Department of Human Services pursuant to the provisions
of Sections 104-17, 104-25, or 104-26 shall be permitted
outside the facility's housing unit unless escorted or
accompanied by personnel of the Department of Human Services.
Any defendant placed in a secure setting pursuant to this
Section, transported to court hearings or other necessary
appointments off facility grounds by personnel of the
Department of Human Services, may be placed in security
devices or otherwise secured during the period of
transportation to assure secure transport of the defendant
and the safety of Department of Human Services personnel and
others. These security measures shall not constitute
restraint as defined in the Mental Health and Developmental
Disabilities Code. Nor shall such defendant be permitted any
off-grounds privileges, either with or without escort by
personnel of the Department of Human Services, or any
unsupervised on-ground privileges, unless such off-grounds or
unsupervised on-grounds privileges have been approved by
specific court order, which order may include such conditions
on the defendant as the court may deem appropriate and
necessary to reasonably assure the defendant's satisfactory
progress in treatment and the safety of the defendant or
others.
(Source: P.A. 89-507, eff. 7-1-97.)
Section 10. The Unified Code of Corrections is amended
by changing Section 5-2-4 as follows:
(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
(Text of Section in effect until July 1, 1997)
Sec. 5-2-4. Proceedings after Acquittal by Reason of
Insanity.
(a) After a finding or verdict of not guilty by reason
of insanity under Sections 104-25, 115-3 or 115-4 of The Code
of Criminal Procedure of 1963, the defendant shall be ordered
to the Department of Mental Health and Developmental
Disabilities for an evaluation as to whether he is subject to
involuntary admission or in need of mental health services.
The order shall specify whether the evaluation shall be
conducted on an inpatient or outpatient basis. If the
evaluation is to be conducted on an inpatient basis, the
defendant shall be placed in a secure setting unless the
Court determines that there are compelling reasons why such
placement is not necessary. After the evaluation and during
the period of time required to determine the appropriate
placement, the defendant shall remain in jail. Upon
completion of the placement process the sheriff shall be
notified and shall transport the defendant to the designated
facility.
The Department shall provide the Court with a report of
its evaluation within 30 days of the date of this order. The
Court shall hold a hearing as provided under the Mental
Health and Developmental Disabilities Code to determine if
the individual is: (a) subject to involuntary admission; (b)
in need of mental health services on an inpatient basis; (c)
in need of mental health services on an outpatient basis; (d)
a person not in need of mental health services. The Court
shall enter its findings.
If the defendant is found to be subject to involuntary
admission or in need of mental health services on an
inpatient care basis, the Court shall order the defendant to
the Department of Mental Health and Developmental
Disabilities. The defendant shall be placed in a secure
setting unless the Court determines that there are compelling
reasons why such placement is not necessary. Such defendants
placed in a secure setting shall not be permitted outside the
facility's housing unit unless escorted or accompanied by
personnel of the Department of Mental Health and
Developmental Disabilities or with the prior approval of the
Court for unsupervised on-grounds privileges as provided
herein. Any defendant placed in a secure setting pursuant to
this Section, transported to court hearings or other
necessary appointments off facility grounds by personnel of
the Department of Mental Health and Developmental
Disabilities, may be placed in security devices or otherwise
secured during the period of transportation to assure secure
transport of the defendant and the safety of Department of
Mental Health and Developmental Disabilities personnel and
others. These security measures shall not constitute
restraint as defined in the Mental Health and Developmental
Disabilities Code. If the defendant is found to be in need
of mental health services, but not on an inpatient care
basis, the Court shall conditionally release the defendant,
under such conditions as set forth in this Section as will
reasonably assure the defendant's satisfactory progress in
treatment or rehabilitation and the safety of the defendant
or others. If the Court finds the person not in need of
mental health services, then the Court shall order the
defendant discharged from custody.
(1) Definitions: For the purposes of this Section:
(A) "Subject to involuntary admission" means: A
defendant has been found not guilty by reason of
insanity; and
(i) who is mentally ill and who because of his
mental illness is reasonably expected to inflict
serious physical harm upon himself or another in the
near future; or
(ii) who is mentally ill and who because of
his illness is unable to provide for his basic
physical needs so as to guard himself from serious
harm.
(B) "In need of mental health services on an
inpatient basis" means: a defendant who has been found
not guilty by reason of insanity who is not subject to
involuntary admission but who is reasonably expected to
inflict serious physical harm upon himself or another and
who would benefit from inpatient care or is in need of
inpatient care.
(C) "In need of mental health services on an
outpatient basis" means: a defendant who has been found
not guilty by reason of insanity who is not subject to
involuntary admission or in need of mental health
services on an inpatient basis, but is in need of
outpatient care, drug and/or alcohol rehabilitation
programs, community adjustment programs, individual,
group, or family therapy, or chemotherapy.
(D) "Conditional Release" means: the release from
the custody of either the Department of Mental Health and
Developmental Disabilities or the custody of the Court of
a person who has been found not guilty by reason of
insanity under such conditions as the court may impose
which reasonably assure the defendant's satisfactory
progress in treatment or habilitation and the safety of
the defendant and others. The Court shall consider such
terms and conditions which may include, but need not be
limited to, outpatient care, alcoholic and drug
rehabilitation programs, community adjustment programs,
individual, group, family, and chemotherapy, periodic
checks with the legal authorities and/or the Department
of Mental Health and Developmental Disabilities. The
person or facility rendering the outpatient care shall be
required to periodically report to the Court on the
progress of the Defendant. Such conditional release shall
be for a period of five years, unless the defendant, the
person or facility rendering the treatment, therapy,
program or outpatient care, or the State's attorney
petitions the Court for an extension of the conditional
release period for an additional three years. Upon
receipt of such a petition, the Court shall hold a
hearing consistent with the provisions of this paragraph
(a) and paragraph (f) of this Section, shall determine
whether the defendant should continue to be subject to
the terms of conditional release, and shall enter an
order either extending the defendant's period of
conditional release for a single additional three year
period or discharging the defendant. In no event shall
the defendant's period of conditional release exceed
eight years. These provisions for extension of
conditional release shall only apply to defendants
conditionally released on or after July 1, 1979. However
the extension provisions of this amendatory Act of 1984
apply only to defendants charged with a forcible felony.
(E) "Facility director" means the chief officer of
a mental health or developmental disabilities facility or
his or her designee or the supervisor of a program of
treatment or habilitation or his or her designee.
"Designee" may include a physician, clinical
psychologist, social worker, or nurse.
(b) If the Court finds the defendant subject to
involuntary admission or in need of mental health services on
an inpatient basis, the admission, detention, care, treatment
or habilitation, review proceedings, and discharge of the
defendant after such order shall be under the Mental Health
and Developmental Disabilities Code, except that the initial
order for admission of a defendant acquitted of a felony by
reason of insanity shall be for an indefinite period of time.
Such period of commitment shall not exceed the maximum length
of time that the defendant would have been required to serve,
less credit for good behavior, before becoming eligible for
release had he been convicted of and received the maximum
sentence for the most serious crime for which he has been
acquitted by reason of insanity. The Court shall determine
the maximum period of commitment by an appropriate order.
During this period of time, the defendant shall not be
permitted to be in the community in any manner, including but
not limited to off-grounds privileges, with or without escort
by personnel of the Department of Mental Health and
Developmental Disabilities, unsupervised on-grounds
privileges, discharge or conditional or temporary release,
except by a plan as provided in this Section. In no event
shall a defendant's continued unauthorized absence be a basis
for discharge. Not more than 30 days after admission and
every 60 days thereafter so long as the initial order remains
in effect, the facility director shall file a treatment plan
with the court. Such plan shall include an evaluation of the
defendant's progress and the extent to which he is benefiting
from treatment. Such plan may also include unsupervised
on-grounds privileges, off-grounds privileges (with or
without escort by personnel of the Department of Mental
Health and Developmental Disabilities), home visits and
participation in work programs, but only where such
privileges have been approved by specific court order, which
order may include such conditions on the defendant as the
Court may deem appropriate and necessary to reasonably assure
the defendant's satisfactory progress in treatment and the
safety of the defendant and others.
(c) Every defendant acquitted of a felony by reason of
insanity and subsequently found to be subject to involuntary
admission or in need of mental health services shall be
represented by counsel in all proceedings under this Section
and under the Mental Health and Developmental Disabilities
Code.
(1) The court shall appoint as counsel the public
defender or an attorney licensed by this State.
(2) Upon filing with the court of a verified
statement of legal services rendered by the private
attorney appointed pursuant to paragraph (1) of this
subsection, the court shall determine a reasonable fee
for such services. If the defendant is unable to pay the
fee, the court shall enter an order upon the State to pay
the entire fee or such amount as the defendant is unable
to pay from funds appropriated by the General Assembly
for that purpose.
(d) When the facility director determines that:
(1) the defendant is no longer subject to
involuntary admission or in need of mental health
services on an inpatient basis; and
(2) the defendant may be conditionally released
because he or she is still in need of mental health
services or that the defendant may be discharged as not
in need of any mental health services; or
(3) the defendant no longer requires placement in a
secure setting;
the facility director shall give written notice to the Court,
State's Attorney and defense attorney. Such notice shall set
forth in detail the basis for the recommendation of the
facility director, and specify clearly the recommendations,
if any, of the facility director, concerning conditional
release. Within 30 days of the notification by the facility
director, the Court shall set a hearing and make a finding as
to whether the defendant is:
(i) subject to involuntary admission; or
(ii) in need of mental health services in the form
of inpatient care; or
(iii) in need of mental health services but not
subject to involuntary admission or inpatient care; or
(iv) no longer in need of mental health services;
or
(v) no longer requires placement in a secure
setting.
Upon finding by the Court, the Court shall enter its
findings and such appropriate order as provided in subsection
(a) of this Section.
(e) A defendant admitted pursuant to this Section, or
any person on his behalf, may file a petition for transfer
to a non-secure setting within the Department of Mental
Health and Developmental Disabilities or discharge or
conditional release under the standards of this Section in
the court which rendered the verdict. Upon receipt of a
petition for transfer to a non-secure setting or discharge or
conditional release, the court shall set a hearing to be held
within 120 days. Thereafter, no new petition may be filed
for 120 days without leave of the court.
(f) The court shall direct that notice of the time and
place of the hearing be served upon the defendant, the
facility director, the State's Attorney, and the defendant's
attorney. If requested by either the State or the defense or
if the Court feels it is appropriate, an impartial
examination of the defendant by a psychiatrist or clinical
psychologist as defined in Section 1-103 of the Mental Health
and Developmental Disabilities Code who is not in the employ
of the Department of Mental Health and Developmental
Disabilities shall be ordered, and the report considered at
the time of the hearing.
(g) The findings of the court shall be established by
clear and convincing evidence. The burden of proof and the
burden of going forth with the evidence rest with the State
when a hearing is held to review the determination of the
facility director that the defendant should be transferred to
a non-secure setting, discharged or conditionally released.
The burden of proof and the burden of going forth with the
evidence rest on the defendant when a hearing is held to
review a petition filed by or on behalf of such defendant.
The evidence shall be presented in open court with the right
of confrontation and cross-examination.
(h) If the court finds that the defendant is no longer
in need of mental health services it shall order the facility
director to discharge the defendant. If the Court finds that
the defendant is in need of mental health services, and no
longer in need of inpatient care, it shall order the facility
director to release the defendant under such conditions as
the Court deems appropriate and as provided by this Section.
Such conditional release shall be imposed for a period of
five years and shall be subject to later modification by the
court as provided by this Section. If the court finds that
the defendant is subject to involuntary admission or in need
of mental health services on an inpatient basis, it shall
order the facility director not to discharge or release the
defendant in accordance with paragraph (b) of this Section.
(i) If within the period of the defendant's conditional
release, the court determines, after hearing evidence, that
the defendant has not fulfilled the conditions of release,
the court shall order a hearing to be held consistent with
the provisions of paragraph (f) and (g) of this section. At
such hearing, if the court finds that the defendant is
subject to involuntary admission or in need of mental health
services on an inpatient basis, it shall enter an order
remanding him or her to the Department of Mental Health and
Developmental Disabilities or other facility. If the
defendant is remanded to the Department of Mental Health and
Developmental Disabilities, he or she shall be placed in a
secure setting unless the court determines that there are
compelling reasons that such placement is not necessary. If
the court finds that the defendant continues to be in need
of mental health services but not on an inpatient basis, it
may modify the conditions of the original release in order to
reasonably assure the defendant's satisfactory progress in
treatment and his or her safety and the safety of others. In
no event shall such conditional release be longer than eight
years. Nothing in this Section shall limit a court's contempt
powers or any other powers of a court.
(j) An order of admission under this Section does not
affect the remedy of habeas corpus.
(k) In the event of a conflict between this Section and
the Mental Health and Developmental Disabilities Code or the
Mental Health and Developmental Disabilities Confidentiality
Act, the provisions of this Section shall govern.
(l) This amendatory Act shall apply to all persons who
have been found not guilty by reason of insanity and who are
presently committed to the Department of Mental Health and
Developmental Disabilities.
(m) The Clerk of the court shall, after the entry of an
order of transfer to a non-secure setting of the Department
of Mental Health and Developmental Disabilities or discharge
or conditional release, transmit a certified copy of the
order to the Department of Mental Health and Developmental
Disabilities, and the sheriff of the county from which the
defendant was admitted. In cases where the arrest of the
defendant or the commission of the offense took place in any
municipality with a population of more than 25,000 persons,
the Clerk of the court shall also transmit a certified copy
of the order of discharge or conditional release to the
proper law enforcement agency for said municipality provided
the municipality has requested such notice in writing.
(Source: P.A. 89-404, eff. 8-20-95.)
(Text of Section taking effect July 1, 1997)
Sec. 5-2-4. Proceedings after Acquittal by Reason of
Insanity.
(a) After a finding or verdict of not guilty by reason
of insanity under Sections 104-25, 115-3 or 115-4 of The Code
of Criminal Procedure of 1963, the defendant shall be ordered
to the Department of Human Services for an evaluation as to
whether he is subject to involuntary admission or in need of
mental health services. The order shall specify whether the
evaluation shall be conducted on an inpatient or outpatient
basis. If the evaluation is to be conducted on an inpatient
basis, the defendant shall be placed in a secure setting
unless the Court determines that there are compelling reasons
why such placement is not necessary. After the evaluation and
during the period of time required to determine the
appropriate placement, the defendant shall remain in jail.
Upon completion of the placement process the sheriff shall
be notified and shall transport the defendant to the
designated facility.
The Department shall provide the Court with a report of
its evaluation within 30 days of the date of this order. The
Court shall hold a hearing as provided under the Mental
Health and Developmental Disabilities Code to determine if
the individual is: (a) subject to involuntary admission; (b)
in need of mental health services on an inpatient basis; (c)
in need of mental health services on an outpatient basis; (d)
a person not in need of mental health services. The Court
shall enter its findings.
If the defendant is found to be subject to involuntary
admission or in need of mental health services on an
inpatient care basis, the Court shall order the defendant to
the Department of Human Services. The defendant shall be
placed in a secure setting unless the Court determines that
there are compelling reasons why such placement is not
necessary. Such defendants placed in a secure setting shall
not be permitted outside the facility's housing unit unless
escorted or accompanied by personnel of the Department of
Human Services or with the prior approval of the Court for
unsupervised on-grounds privileges as provided herein. Any
defendant placed in a secure setting pursuant to this
Section, transported to court hearings or other necessary
appointments off facility grounds by personnel of the
Department of Human Services, may be placed in security
devices or otherwise secured during the period of
transportation to assure secure transport of the defendant
and the safety of Department of Human Services personnel and
others. These security measures shall not constitute
restraint as defined in the Mental Health and Developmental
Disabilities Code. If the defendant is found to be in need
of mental health services, but not on an inpatient care
basis, the Court shall conditionally release the defendant,
under such conditions as set forth in this Section as will
reasonably assure the defendant's satisfactory progress in
treatment or rehabilitation and the safety of the defendant
or others. If the Court finds the person not in need of
mental health services, then the Court shall order the
defendant discharged from custody.
(1) Definitions: For the purposes of this Section:
(A) "Subject to involuntary admission" means: A
defendant has been found not guilty by reason of
insanity; and
(i) who is mentally ill and who because of his
mental illness is reasonably expected to inflict
serious physical harm upon himself or another in the
near future; or
(ii) who is mentally ill and who because of
his illness is unable to provide for his basic
physical needs so as to guard himself from serious
harm.
(B) "In need of mental health services on an
inpatient basis" means: a defendant who has been found
not guilty by reason of insanity who is not subject to
involuntary admission but who is reasonably expected to
inflict serious physical harm upon himself or another and
who would benefit from inpatient care or is in need of
inpatient care.
(C) "In need of mental health services on an
outpatient basis" means: a defendant who has been found
not guilty by reason of insanity who is not subject to
involuntary admission or in need of mental health
services on an inpatient basis, but is in need of
outpatient care, drug and/or alcohol rehabilitation
programs, community adjustment programs, individual,
group, or family therapy, or chemotherapy.
(D) "Conditional Release" means: the release from
either the custody of the Department of Human Services or
the custody of the Court of a person who has been found
not guilty by reason of insanity under such conditions as
the court may impose which reasonably assure the
defendant's satisfactory progress in treatment or
habilitation and the safety of the defendant and others.
The Court shall consider such terms and conditions which
may include, but need not be limited to, outpatient care,
alcoholic and drug rehabilitation programs, community
adjustment programs, individual, group, family, and
chemotherapy, periodic checks with the legal authorities
and/or the Department of Human Services. The person or
facility rendering the outpatient care shall be required
to periodically report to the Court on the progress of
the Defendant. Such conditional release shall be for a
period of five years, unless the defendant, the person or
facility rendering the treatment, therapy, program or
outpatient care, or the State's attorney petitions the
Court for an extension of the conditional release period
for an additional three years. Upon receipt of such a
petition, the Court shall hold a hearing consistent with
the provisions of this paragraph (a) and paragraph (f) of
this Section, shall determine whether the defendant
should continue to be subject to the terms of conditional
release, and shall enter an order either extending the
defendant's period of conditional release for a single
additional three year period or discharging the
defendant. In no event shall the defendant's period of
conditional release exceed eight years. These provisions
for extension of conditional release shall only apply to
defendants conditionally released on or after July 1,
1979. However the extension provisions of this amendatory
Act of 1984 apply only to defendants charged with a
forcible felony.
(E) "Facility director" means the chief officer of
a mental health or developmental disabilities facility or
his or her designee or the supervisor of a program of
treatment or habilitation or his or her designee.
"Designee" may include a physician, clinical
psychologist, social worker, or nurse.
(b) If the Court finds the defendant subject to
involuntary admission or in need of mental health services on
an inpatient basis, the admission, detention, care, treatment
or habilitation, review proceedings, and discharge of the
defendant after such order shall be under the Mental Health
and Developmental Disabilities Code, except that the initial
order for admission of a defendant acquitted of a felony by
reason of insanity shall be for an indefinite period of time.
Such period of commitment shall not exceed the maximum length
of time that the defendant would have been required to serve,
less credit for good behavior, before becoming eligible for
release had he been convicted of and received the maximum
sentence for the most serious crime for which he has been
acquitted by reason of insanity. The Court shall determine
the maximum period of commitment by an appropriate order.
During this period of time, the defendant shall not be
permitted to be in the community in any manner, including but
not limited to off-grounds privileges, with or without escort
by personnel of the Department of Human Services,
unsupervised on-grounds privileges, discharge or conditional
or temporary release, except by a plan as provided in this
Section. In no event shall a defendant's continued
unauthorized absence be a basis for discharge. Not more than
30 days after admission and every 60 days thereafter so long
as the initial order remains in effect, the facility director
shall file a treatment plan with the court. Such plan shall
include an evaluation of the defendant's progress and the
extent to which he is benefiting from treatment. Such plan
may also include unsupervised on-grounds privileges,
off-grounds privileges (with or without escort by personnel
of the Department of Human Services), home visits and
participation in work programs, but only where such
privileges have been approved by specific court order, which
order may include such conditions on the defendant as the
Court may deem appropriate and necessary to reasonably assure
the defendant's satisfactory progress in treatment and the
safety of the defendant and others.
(c) Every defendant acquitted of a felony by reason of
insanity and subsequently found to be subject to involuntary
admission or in need of mental health services shall be
represented by counsel in all proceedings under this Section
and under the Mental Health and Developmental Disabilities
Code.
(1) The court shall appoint as counsel the public
defender or an attorney licensed by this State.
(2) Upon filing with the court of a verified
statement of legal services rendered by the private
attorney appointed pursuant to paragraph (1) of this
subsection, the court shall determine a reasonable fee
for such services. If the defendant is unable to pay the
fee, the court shall enter an order upon the State to pay
the entire fee or such amount as the defendant is unable
to pay from funds appropriated by the General Assembly
for that purpose.
(d) When the facility director determines that:
(1) the defendant is no longer subject to
involuntary admission or in need of mental health
services on an inpatient basis; and
(2) the defendant may be conditionally released
because he or she is still in need of mental health
services or that the defendant may be discharged as not
in need of any mental health services; or
(3) the defendant no longer requires placement in a
secure setting;
the facility director shall give written notice to the Court,
State's Attorney and defense attorney. Such notice shall set
forth in detail the basis for the recommendation of the
facility director, and specify clearly the recommendations,
if any, of the facility director, concerning conditional
release. Within 30 days of the notification by the facility
director, the Court shall set a hearing and make a finding as
to whether the defendant is:
(i) subject to involuntary admission; or
(ii) in need of mental health services in the form
of inpatient care; or
(iii) in need of mental health services but not
subject to involuntary admission or inpatient care; or
(iv) no longer in need of mental health services;
or
(v) no longer requires placement in a secure
setting.
Upon finding by the Court, the Court shall enter its
findings and such appropriate order as provided in subsection
(a) of this Section.
(e) A defendant admitted pursuant to this Section, or
any person on his behalf, may file a petition for transfer
to a non-secure setting within the Department of Human
Services or discharge or conditional release under the
standards of this Section in the court which rendered the
verdict. Upon receipt of a petition for transfer to a
non-secure setting or discharge or conditional release, the
court shall set a hearing to be held within 120 days.
Thereafter, no new petition may be filed for 120 days without
leave of the court.
(f) The court shall direct that notice of the time and
place of the hearing be served upon the defendant, the
facility director, the State's Attorney, and the defendant's
attorney. If requested by either the State or the defense or
if the Court feels it is appropriate, an impartial
examination of the defendant by a psychiatrist or clinical
psychologist as defined in Section 1-103 of the Mental Health
and Developmental Disabilities Code who is not in the employ
of the Department of Human Services shall be ordered, and the
report considered at the time of the hearing.
(g) The findings of the court shall be established by
clear and convincing evidence. The burden of proof and the
burden of going forth with the evidence rest with the State
when a hearing is held to review the determination of the
facility director that the defendant should be transferred to
a non-secure setting, discharged or conditionally released.
The burden of proof and the burden of going forth with the
evidence rest on the defendant when a hearing is held to
review a petition filed by or on behalf of such defendant.
The evidence shall be presented in open court with the right
of confrontation and cross-examination.
(h) If the court finds that the defendant is no longer
in need of mental health services it shall order the facility
director to discharge the defendant. If the Court finds that
the defendant is in need of mental health services, and no
longer in need of inpatient care, it shall order the facility
director to release the defendant under such conditions as
the Court deems appropriate and as provided by this Section.
Such conditional release shall be imposed for a period of
five years and shall be subject to later modification by the
court as provided by this Section. If the court finds that
the defendant is subject to involuntary admission or in need
of mental health services on an inpatient basis, it shall
order the facility director not to discharge or release the
defendant in accordance with paragraph (b) of this Section.
(i) If within the period of the defendant's conditional
release, the court determines, after hearing evidence, that
the defendant has not fulfilled the conditions of release,
the court shall order a hearing to be held consistent with
the provisions of paragraph (f) and (g) of this section. At
such hearing, if the court finds that the defendant is
subject to involuntary admission or in need of mental health
services on an inpatient basis, it shall enter an order
remanding him or her to the Department of Human Services or
other facility. If the defendant is remanded to the
Department of Human Services, he or she shall be placed in a
secure setting unless the court determines that there are
compelling reasons that such placement is not necessary. If
the court finds that the defendant continues to be in need
of mental health services but not on an inpatient basis, it
may modify the conditions of the original release in order to
reasonably assure the defendant's satisfactory progress in
treatment and his or her safety and the safety of others. In
no event shall such conditional release be longer than eight
years. Nothing in this Section shall limit a court's contempt
powers or any other powers of a court.
(j) An order of admission under this Section does not
affect the remedy of habeas corpus.
(k) In the event of a conflict between this Section and
the Mental Health and Developmental Disabilities Code or the
Mental Health and Developmental Disabilities Confidentiality
Act, the provisions of this Section shall govern.
(l) This amendatory Act shall apply to all persons who
have been found not guilty by reason of insanity and who are
presently committed to the Department of Mental Health and
Developmental Disabilities (now the Department of Human
Services).
(m) The Clerk of the court shall, after the entry of an
order of transfer to a non-secure setting of the Department
of Human Services or discharge or conditional release,
transmit a certified copy of the order to the Department of
Human Services, and the sheriff of the county from which the
defendant was admitted. In cases where the arrest of the
defendant or the commission of the offense took place in any
municipality with a population of more than 25,000 persons,
the Clerk of the court shall also transmit a certified copy
of the order of discharge or conditional release to the
proper law enforcement agency for said municipality provided
the municipality has requested such notice in writing.
(Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97.)
Section 99. Effective date. This Act takes effect upon
becoming law.