Summary:

 House Bill 4 (HB 4) relates to criminal competency; HB 4 expands the list of crimes for which a defendant may be criminally committed due to incompetence to stand trial; provides for community-based competency restoration for non-dangerous defendants; provides that competency evaluations must contain additional professional opinions; adds that when a criminal case is dismissed, the court must advise a prosecutor to consider initiating proceedings for involuntary commitment or assisted outpatient treatment; and allows a prosecutor or attorney general to file a petition for assisted outpatient treatment.   

Legislation Overview:

 House Bill 4 (HB 4) makes the following changes regarding criminal competency:
First, HB 4 adds what must be included in a competency evaluation.  The bill changes the requirement that a psychologist, psychiatrist, or other qualified professional conduct the evaluation.  Instead, the evaluation can be conducted by any qualified professional recognized by the court as an expert.  The report must include the evaluator’s opinion as to whether the defendant is competent to stand trial.  If the defendant is not competent, the evaluator must state whether the defendant satisfies the criteria for an involuntary commitment under the Mental Health and Developmental Disabilities Code or the Assisted Outpatient Treatment Act.  
Second, HB 4 expands the list of crimes for which a defendant may be committed.  A commitment depends on whether the defendant is considered “dangerous”.  The bill provides that an incompetent defendant is “dangerous” if the court finds that the defendant presents a serious threat of: great bodily harm to another, criminal sexual penetration, criminal sexual contact of a minor, child abuse, sexual exploitation of a minor, human trafficking, a felony involving the use of a firearm, or aggravated arson. 
Currently, “dangerous” means that if released, the defendant presents a serious threat of inflicting great bodily harm on another or committing criminal sexual penetration or criminal sexual contact of a minor.   
If a defendant is determined to be not dangerous, HB 4 allows a court to order the defendant to participate in a community-based competency restoration program. A community-based competency restoration program can last up to 90 days and is an outpatient program in the community where the defendant lives.  No later than 90 days from the date ordered this program, a review hearing must be held to determine if the defendant has been restored to competency.  Currently, the court may only dismiss the case and advise the district attorney to consider an involuntary commitment.  If the case is dismissed, the bill allows the court to recommend to the district attorney to consider assisted outpatient treatment.  
If a defendant is determined to be dangerous, the bill follows with current law which is for the Department of Health (DOH) to detain the defendant in a locked, secured facility.  The bill adds a requirement that the DOH must admit the defendant for competency restoration within 30 days of receiving the commitment order.  The bill further adds that if the DOH believes that the defendant remains not competent, the DOH must provide an opinion as to whether the defendant satisfies the criteria for an involuntary civil commitment or involuntary treatment per the Assisted Outpatient Treatment Act. 
If a defendant is charged with certain offenses and the court determines that there is not a substantial probability that the defendant will be restored to competency within nine (9) months, the court may hold a criminal commitment hearing. HB 4 adds the following four offenses to the list: child abuse, sexual exploitation of a minor, and human trafficking. Currently, the offenses are felonies that involve the infliction of great bodily harm, the use of a firearm, aggravated arson, criminal sexual penetration or criminal sexual contact of a minor.  The bill provides that at any time, including after a court dismisses a case against a defendant, the DOH or the district attorney may initiate civil involuntary commitment proceedings or proceedings following the Assisted Outpatient Treatment Act.  The bill allows a district attorney of DOH to use any court-ordered competency report to initiate a civil commitment or assisted outpatient treatment. 
HB 4 also amends the law regarding a defendant who is not competent due to a developmental or intellectual disability. Currently, such a defendant can be involuntarily committed only if charged with first degree murder, first degree criminal sexual penetration, criminal sexual contact of a minor, or arson.  HB 4 adds the following offenses to the list: a felony involving infliction of great bodily harm on another, child abuse, sexual exploitation of a minor, human trafficking, or a felony involving the use of a firearm.  
Lastly, the bill allows the district attorney or attorney general to petition for an order authorizing assisted outpatient treatment.  Currently, such a petition can only be filed by an adult who lives with the respondent, the respondent’s parent, spouse or adult sibling, the director of a hospital or agency where the respondent resides, or another qualified professional who has treated the respondent.    

Current Law:

 Currently, a psychologist, psychiatrist, or other qualified professional conducts a competency evaluation.  
“Dangerous” currently means that if released, the defendant presents a serious threat of inflicting great bodily harm on another or committing criminal sexual penetration or criminal sexual contact of a minor.   
If a defendant is not dangerous, a court may dismiss the case and advise the district attorney to consider an involuntary commitment.  There is no option for a community-based competency restoration program. 
A criminal commitment hearing takes place only if the defendant was charged with the following crimes: felonies that involve the infliction of great bodily harm, the use of a firearm, aggravated arson, criminal sexual penetration or criminal sexual contact of a minor. 
A defendant who is not competent due to a developmental or intellectual disability can be involuntarily committed only if charged with first degree murder, first degree criminal sexual penetration, criminal sexual contact of a minor, or arson.   
A district attorney or attorney general currently does not have the authority to petition for an order authorizing assisted outpatient treatment.  

Amendments:

 HB 4 as follows:
1.	Clarifies the procedure for transferring the case of an incompetent defendant to the district court.
2.	Reinstates language originally in the statute that a competency evaluation must be completed by a psychologist, psychiatrist, or other qualified professional. 
3.	Requires that a defendant be returned to the local jail within 72 hours of being restored to competency. 
4.	Removes the requirement that the Department of Health detain an incompetent defendant in its facilities. Instead, the bill requires that if an incompetent defendant is to be detained, the defendant must be detained in a secure, locked, and licensed inpatient psychiatric facility.
5.	Removes references to a “treatment supervisor of the Department of Health” and replaces it with just a “treatment supervisor”.