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91_HB3180enr HB3180 Enrolled LRB9109432RCks 1 AN ACT to amend the Unified Code of Corrections by 2 changing Section 5-2-4. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Unified Code of Corrections is amended by 6 changing Section 5-2-4 as follows: 7 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4) 8 Sec. 5-2-4. Proceedings after Acquittal by Reason of 9 Insanity. 10 (a) After a finding or verdict of not guilty by reason 11 of insanity under Sections 104-25, 115-3 or 115-4 of The Code 12 of Criminal Procedure of 1963, the defendant shall be ordered 13 to the Department of Human Services for an evaluation as to 14 whether he is subject to involuntary admission or in need of 15 mental health services. The order shall specify whether the 16 evaluation shall be conducted on an inpatient or outpatient 17 basis. If the evaluation is to be conducted on an inpatient 18 basis, the defendant shall be placed in a secure setting 19 unless the Court determines that there are compelling reasons 20 why such placement is not necessary. After the evaluation and 21 during the period of time required to determine the 22 appropriate placement, the defendant shall remain in jail. 23 Upon completion of the placement process the sheriff shall 24 be notified and shall transport the defendant to the 25 designated facility. 26 The Department shall provide the Court with a report of 27 its evaluation within 30 days of the date of this order. The 28 Court shall hold a hearing as provided under the Mental 29 Health and Developmental Disabilities Code to determine if 30 the individual is: (a) subject to involuntary admission; (b) 31 in need of mental health services on an inpatient basis; (c) HB3180 Enrolled -2- LRB9109432RCks 1 in need of mental health services on an outpatient basis; (d) 2 a person not in need of mental health services. The Court 3 shall enter its findings. 4 If the defendant is found to be subject to involuntary 5 admission or in need of mental health services on an 6 inpatient care basis, the Court shall order the defendant to 7 the Department of Human Services. The defendant shall be 8 placed in a secure setting unless the Court determines that 9 there are compelling reasons why such placement is not 10 necessary. Such defendants placed in a secure setting shall 11 not be permitted outside the facility's housing unit unless 12 escorted or accompanied by personnel of the Department of 13 Human Services or with the prior approval of the Court for 14 unsupervised on-grounds privileges as provided herein. Any 15 defendant placed in a secure setting pursuant to this 16 Section, transported to court hearings or other necessary 17 appointments off facility grounds by personnel of the 18 Department of Human Services, may be placed in security 19 devices or otherwise secured during the period of 20 transportation to assure secure transport of the defendant 21 and the safety of Department of Human Services personnel and 22 others. These security measures shall not constitute 23 restraint as defined in the Mental Health and Developmental 24 Disabilities Code. If the defendant is found to be in need of 25 mental health services, but not on an inpatient care basis, 26 the Court shall conditionally release the defendant, under 27 such conditions as set forth in this Section as will 28 reasonably assure the defendant's satisfactory progress in 29 treatment or rehabilitation and the safety of the defendant 30 or others. If the Court finds the person not in need of 31 mental health services, then the Court shall order the 32 defendant discharged from custody. 33 (1) Definitions: For the purposes of this Section: 34 (A) "Subject to involuntary admission" means: a HB3180 Enrolled -3- LRB9109432RCks 1 defendant has been found not guilty by reason of 2 insanity; and 3 (i) who is mentally ill and who because of his 4 mental illness is reasonably expected to inflict 5 serious physical harm upon himself or another in the 6 near future; or 7 (ii) who is mentally ill and who because of 8 his illness is unable to provide for his basic 9 physical needs so as to guard himself from serious 10 harm. 11 (B) "In need of mental health services on an 12 inpatient basis" means: a defendant who has been found 13 not guilty by reason of insanity who is not subject to 14 involuntary admission but who is reasonably expected to 15 inflict serious physical harm upon himself or another and 16 who would benefit from inpatient care or is in need of 17 inpatient care. 18 (C) "In need of mental health services on an 19 outpatient basis" means: a defendant who has been found 20 not guilty by reason of insanity who is not subject to 21 involuntary admission or in need of mental health 22 services on an inpatient basis, but is in need of 23 outpatient care, drug and/or alcohol rehabilitation 24 programs, community adjustment programs, individual, 25 group, or family therapy, or chemotherapy. 26 (D) "Conditional Release" means: the release from 27 either the custody of the Department of Human Services or 28 the custody of the Court of a person who has been found 29 not guilty by reason of insanity under such conditions as 30 the Court may impose which reasonably assure the 31 defendant's satisfactory progress in treatment or 32 habilitation and the safety of the defendant and others. 33 The Court shall consider such terms and conditions which 34 may include, but need not be limited to, outpatient care, HB3180 Enrolled -4- LRB9109432RCks 1 alcoholic and drug rehabilitation programs, community 2 adjustment programs, individual, group, family, and 3 chemotherapy, periodic checks with the legal authorities 4 and/or the Department of Human Services. The person or 5 facility rendering the outpatient care shall be required 6 to periodically report to the Court on the progress of 7 the defendant. Such conditional release shall be for a 8 period of five years, unless the defendant, the person or 9 facility rendering the treatment, therapy, program or 10 outpatient care, or the State's Attorney petitions the 11 Court for an extension of the conditional release period 12 for an additional three years. Upon receipt of such a 13 petition, the Court shall hold a hearing consistent with 14 the provisions of this paragraph (a) and paragraph (f) of 15 this Section, shall determine whether the defendant 16 should continue to be subject to the terms of conditional 17 release, and shall enter an order either extending the 18 defendant's period of conditional release for a single 19 additional three year period or discharging the 20 defendant. In no event shall the defendant's period of 21 conditional release exceed eight years. These provisions 22 for extension of conditional release shall only apply to 23 defendants conditionally released on or after July 1, 24 1979. However the extension provisions of Public Act 25 83-1449 apply only to defendants charged with a forcible 26 felony. 27 (E) "Facility director" means the chief officer of 28 a mental health or developmental disabilities facility or 29 his or her designee or the supervisor of a program of 30 treatment or habilitation or his or her designee. 31 "Designee" may include a physician, clinical 32 psychologist, social worker, or nurse. 33 (b) If the Court finds the defendant subject to 34 involuntary admission or in need of mental health services on HB3180 Enrolled -5- LRB9109432RCks 1 an inpatient basis, the admission, detention, care, treatment 2 or habilitation, treatment plans, review proceedings, 3 including review of treatment and treatment plans, and 4 discharge of the defendant after such order shall be under 5 the Mental Health and Developmental Disabilities Code, except 6 that the initial order for admission of a defendant acquitted 7 of a felony by reason of insanity shall be for an indefinite 8 period of time. Such period of commitment shall not exceed 9 the maximum length of time that the defendant would have been 10 required to serve, less credit for good behavior, before 11 becoming eligible for release had he been convicted of and 12 received the maximum sentence for the most serious crime for 13 which he has been acquitted by reason of insanity. The Court 14 shall determine the maximum period of commitment by an 15 appropriate order. During this period of time, the defendant 16 shall not be permitted to be in the community in any manner, 17 including but not limited to off-grounds privileges, with or 18 without escort by personnel of the Department of Human 19 Services, unsupervised on-grounds privileges, discharge or 20 conditional or temporary release, except by a plan as 21 provided in this Section. In no event shall a defendant's 22 continued unauthorized absence be a basis for discharge. Not 23 more than 30 days after admission and every 60 days 24 thereafter so long as the initial order remains in effect, 25 the facility director shall file a treatment plan report with 26 the court and forward a copy of the treatment plan report to 27 the clerk of the court, the State's Attorney, and the 28 defendant's attorney, if the defendant is represented by 29 counsel, or to a person authorized by the defendant under the 30 Mental Health and Developmental Disabilities Confidentiality 31 Act to be sent a copy of the report. The report shall 32 include an opinion as to whether the defendant is currently 33 subject to involuntary admission, in need of mental health 34 services on an inpatient basis, or in need of mental health HB3180 Enrolled -6- LRB9109432RCks 1 services on an outpatient basis. The report shall also 2 summarize the basis for those findings and provide a current 3 summary of the following items from the treatment plan: (1) 4 an assessment of the defendant's treatment needs, (2) a 5 description of the services recommended for treatment, (3) 6 the goals of each type of element of service, (4) an 7 anticipated timetable for the accomplishment of the goals, 8 and (5) a designation of the qualified professional 9 responsible for the implementation of the plan. The report 10 may also include unsupervised on-grounds privileges, 11 off-grounds privileges (with or without escort by personnel 12 of the Department of Human Services), home visits and 13 participation in work programs, but only where such 14 privileges have been approved by specific court order, which 15 order may include such conditions on the defendant as the 16 Court may deem appropriate and necessary to reasonably assure 17 the defendant's satisfactory progress in treatment and the 18 safety of the defendant and others. 19 (c) Every defendant acquitted of a felony by reason of 20 insanity and subsequently found to be subject to involuntary 21 admission or in need of mental health services shall be 22 represented by counsel in all proceedings under this Section 23 and under the Mental Health and Developmental Disabilities 24 Code. 25 (1) The Court shall appoint as counsel the public 26 defender or an attorney licensed by this State. 27 (2) Upon filing with the Court of a verified 28 statement of legal services rendered by the private 29 attorney appointed pursuant to paragraph (1) of this 30 subsection, the Court shall determine a reasonable fee 31 for such services. If the defendant is unable to pay the 32 fee, the Court shall enter an order upon the State to pay 33 the entire fee or such amount as the defendant is unable 34 to pay from funds appropriated by the General Assembly HB3180 Enrolled -7- LRB9109432RCks 1 for that purpose. 2 (d) When the facility director determines that: 3 (1) the defendant is no longer subject to 4 involuntary admission or in need of mental health 5 services on an inpatient basis; and 6 (2) the defendant may be conditionally released 7 because he or she is still in need of mental health 8 services or that the defendant may be discharged as not 9 in need of any mental health services; or 10 (3) the defendant no longer requires placement in a 11 secure setting; 12 the facility director shall give written notice to the Court, 13 State's Attorney and defense attorney. Such notice shall set 14 forth in detail the basis for the recommendation of the 15 facility director, and specify clearly the recommendations, 16 if any, of the facility director, concerning conditional 17 release. Within 30 days of the notification by the facility 18 director, the Court shall set a hearing and make a finding as 19 to whether the defendant is: 20 (i) subject to involuntary admission; or 21 (ii) in need of mental health services in the form 22 of inpatient care; or 23 (iii) in need of mental health services but not 24 subject to involuntary admission or inpatient care; or 25 (iv) no longer in need of mental health services; 26 or 27 (v) no longer requires placement in a secure 28 setting. 29 Upon finding by the Court, the Court shall enter its 30 findings and such appropriate order as provided in subsection 31 (a) of this Section. 32 (e) A defendant admitted pursuant to this Section, or 33 any person on his behalf, may file a petition for treatment 34 plan review, transfer to a non-secure setting within the HB3180 Enrolled -8- LRB9109432RCks 1 Department of Human Services or discharge or conditional 2 release under the standards of this Section in the Court 3 which rendered the verdict. Upon receipt of a petition for 4 treatment plan review, transfer to a non-secure setting or 5 discharge or conditional release, the Court shall set a 6 hearing to be held within 120 days. Thereafter, no new 7 petition may be filed for 120 days without leave of the 8 Court. 9 (f) The Court shall direct that notice of the time and 10 place of the hearing be served upon the defendant, the 11 facility director, the State's Attorney, and the defendant's 12 attorney. If requested by either the State or the defense or 13 if the Court feels it is appropriate, an impartial 14 examination of the defendant by a psychiatrist or clinical 15 psychologist as defined in Section 1-103 of the Mental Health 16 and Developmental Disabilities Code who is not in the employ 17 of the Department of Human Services shall be ordered, and the 18 report considered at the time of the hearing. 19 (g) The findings of the Court shall be established by 20 clear and convincing evidence. The burden of proof and the 21 burden of going forth with the evidence rest with the 22 defendant or any person on the defendant's behalfStatewhen 23 a hearing is held to review the determination of the facility 24 director that the defendant should be transferred to a 25 non-secure setting, discharged, or conditionally released or 26. The burden of proof and the burden of going forth with the27evidence rest on the defendantwhen a hearing is held to 28 review a petition filed by or on behalf of thesuch29 defendant. The evidence shall be presented in open Court 30 with the right of confrontation and cross-examination. 31 (h) If the Court finds that the defendant is no longer 32 in need of mental health services it shall order the facility 33 director to discharge the defendant. If the Court finds that 34 the defendant is in need of mental health services, and no HB3180 Enrolled -9- LRB9109432RCks 1 longer in need of inpatient care, it shall order the facility 2 director to release the defendant under such conditions as 3 the Court deems appropriate and as provided by this Section. 4 Such conditional release shall be imposed for a period of 5 five years and shall be subject to later modification by the 6 Court as provided by this Section. If the Court finds that 7 the defendant is subject to involuntary admission or in need 8 of mental health services on an inpatient basis, it shall 9 order the facility director not to discharge or release the 10 defendant in accordance with paragraph (b) of this Section. 11 (i) If within the period of the defendant's conditional 12 release, the Court determines, after hearing evidence, that 13 the defendant has not fulfilled the conditions of release, 14 the Court shall order a hearing to be held consistent with 15 the provisions of paragraph (f) and (g) of this Section. At 16 such hearing, if the Court finds that the defendant is 17 subject to involuntary admission or in need of mental health 18 services on an inpatient basis, it shall enter an order 19 remanding him or her to the Department of Human Services or 20 other facility. If the defendant is remanded to the 21 Department of Human Services, he or she shall be placed in a 22 secure setting unless the Court determines that there are 23 compelling reasons that such placement is not necessary. If 24 the Court finds that the defendant continues to be in need 25 of mental health services but not on an inpatient basis, it 26 may modify the conditions of the original release in order to 27 reasonably assure the defendant's satisfactory progress in 28 treatment and his or her safety and the safety of others. In 29 no event shall such conditional release be longer than eight 30 years. Nothing in this Section shall limit a Court's contempt 31 powers or any other powers of a Court. 32 (j) An order of admission under this Section does not 33 affect the remedy of habeas corpus. 34 (k) In the event of a conflict between this Section and HB3180 Enrolled -10- LRB9109432RCks 1 the Mental Health and Developmental Disabilities Code or the 2 Mental Health and Developmental Disabilities Confidentiality 3 Act, the provisions of this Section shall govern. 4 (l) This amendatory Act shall apply to all persons who 5 have been found not guilty by reason of insanity and who are 6 presently committed to the Department of Mental Health and 7 Developmental Disabilities (now the Department of Human 8 Services). 9 (m) The Clerk of the Court shall, after the entry of an 10 order of transfer to a non-secure setting of the Department 11 of Human Services or discharge or conditional release, 12 transmit a certified copy of the order to the Department of 13 Human Services, and the sheriff of the county from which the 14 defendant was admitted. In cases where the arrest of the 15 defendant or the commission of the offense took place in any 16 municipality with a population of more than 25,000 persons, 17 the Clerk of the Court shall also transmit a certified copy 18 of the order of discharge or conditional release to the 19 proper law enforcement agency for said municipality provided 20 the municipality has requested such notice in writing. 21 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98; 22 91-536, eff. 1-1-00.) 23 Section 99. Effective date. This Act takes effect 24 January 1, 2001.