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Current Status Bill Number:View additional legislative information at the LPITS web site.3540 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990217 Primary Sponsor:J. Brown All Sponsors:J. Brown, Scott, Howard and Mack Drafted Document Number:l:\council\bills\psd\7209ac99.doc Companion Bill Number:213 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Mentally Ill Defendant Act, Crimes and Offenses, Courts, Mental Health, Acts Cited By Popular Name History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990217 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND CHAPTER 24 OF TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MENTALLY ILL OR INSANE DEFENDANTS, SO AS TO ENACT THE MENTALLY ILL DEFENDANT ACT WHICH INCLUDES PROVISIONS TO REVISE PROCEDURAL SAFEGUARDS IN THE PROSECUTION OF THESE DEFENDANTS AND TO REQUIRE ADEQUATE CARE AND INDIVIDUALIZED TREATMENT FOR THESE DEFENDANTS INCLUDING REQUIRING THE DEPARTMENT OF MENTAL HEALTH TO DEVELOP A MENTALLY ILL DEFENDANT PROGRAM AND TO PROVIDE FOR THE COMPONENTS OF THE PROGRAM; TO AMEND ARTICLE 5 OF CHAPTER 23 OF TITLE 44, RELATING TO FITNESS TO STAND TRIAL, SO AS TO REVISE PROCEDURAL SAFEGUARDS AND PROVIDE A PROCEDURE FOR PERSONS COMMITTED TO APPLY FOR CONDITIONAL RELEASE AND REQUIRE THE MENTALLY ILL DEFENDANT PROGRAM TO MONITOR RELEASED PERSONS; TO AMEND SECTION 44-9-100, AS AMENDED, RELATING TO POWERS OF THE DEPARTMENT OF MENTAL HEATH, SO AS TO INCLUDE THE AUTHORITY TO PROMULGATE REGULATIONS RELATIVE TO CHAPTER 28, TITLE 17 AND ARTICLE 5 OF CHAPTER 23 OF TITLE 44; TO AMEND SECTION 44-13-30, RELATING TO THE DEPARTMENT OF MENTAL HEALTH TRANSFERRING NONRESIDENT PATIENTS TO THEIR STATE OF RESIDENCY, SO AS TO PROVIDE THAT THIS DOES NOT APPLY TO PATIENTS COMMITTED PURSUANT TO CHAPTER 24 OF TITLE 17 OR ARTICLE 5 OF CHAPTER 23 OF TITLE 44; TO AMEND SECTION 44-22-100, AS AMENDED, RELATING TO EXCEPTIONS TO THE CONFIDENTIALITY OF RECORDS MAINTAINED BY THE DEPARTMENT OF MENTAL HEALTH, SO AS TO INCLUDE RECORDS RELATIVE TO THE PROVISIONS OF CHAPTER 23 OF TITLE 17 OR ARTICLE 5 OF CHAPTER 23 OF TITLE 44 IF DISCLOSURE IS NECESSARY TO CARRY OUT THOSE PROVISIONS; AND TO AMEND SECTION 44-23-210, AS AMENDED, RELATING TO TRANSFERRING PATIENTS BETWEEN MENTAL HEALTH AND MENTAL RETARDATION FACILITIES, SO AS TO PROVIDE THAT THE SECTION DOES NOT APPLY TO PERSONS COMMITTED PURSUANT TO THE MENTALLY ILL DEFENDANT PROGRAM.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 24 of Title 17 of the 1976 Code is amended to read:
Section 17-24-1. This chapter may be cited as the 'Mentally Ill Defendant Act'.
Section 17-24-3. As used in this chapter:
(1) 'Competency' means fitness to stand trial such that the person has the capacity to understand the proceedings against him and is able to assist in his own defense.
(2) 'Conditional release' means permission to leave a facility under predetermined conditions and without supervision or any release that is not a full discharge.
(3) 'Department' means the State Department of Mental Health.
(4) 'Director' means the State Director of Mental Health for the State Department of Mental Health or the director's designee.
(5) 'Incompetency' means a condition in which a person lacks either or both the capacity to understand the nature of the proceedings against that person or to assist in that own person's defense as a result of mental disease or defect.
(6) 'Indigent' means a person who is financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to the person or the person's family.
(7) 'Individualized plan' means a plan prepared by mental health professionals with other professionals as a team, for persons under the jurisdiction of the department pursuant to this chapter and shall include, but is not limited to:
(a) the determination of the nature of the person's specific problems, prior charged criminal behavior, and rehabilitation needs;
(b) the determination of the conditions and strategies necessary to achieve the purposes of rehabilitation;
(c) the determination of the intermediate and long-range goals of the rehabilitation program, with a projected timetable for the attainment;
(d) the rationale for using this plan to achieve those intermediate and long-range goals;
(e) the designation of the staff responsible for carrying out the plan;
(f) the designation of where relevant, in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual discharge from involuntary confinement, and a projected possible date for discharge from involuntary confinement;
(g) the type of residence immediately anticipated for the person and possible future types of residences.
(8) 'Insanity' does not include a condition of mind proximately induced by the voluntary act of a person charged with a crime.
(9) 'Psychiatrist' means a physician licensed to practice medicine in this State who has completed three years of graduate training in psychiatry in a program approved by the American Medical Association or the American Osteopathic Association and is certified or eligible to be certified by the American Board of Psychiatry and Neurology.
(10) 'Psychologist' means a person who has been licensed as a psychologist pursuant to Chapter 55, Title 40.
(11) 'Rehabilitative services' means those services provided by program personnel to assist a person in acquiring and maintaining life skills and in raising the person's level of physical, mental, social, and vocational functioning. Rehabilitative services include, but are not limited to, education, training for employment, programs for chemical addiction, and therapy. The rehabilitative process must be undertaken with recognition of the risk to the public safety presented by the individual being assisted as manifested by prior charged criminal conduct.
(12) 'Social worker' means a person with a master's or further advanced degree from an accredited school of social work or a degree considered equivalent under regulations promulgated by the department.
(13) 'Treatment' means a currently standardized medical or mental health procedure including medication.
Section 17-24-5. (A) At all stages of a proceeding pursuant to this chapter and Article 5 of Chapter 23 of Title 44, a person is entitled to the assistance of counsel, and if the person is indigent, as determined pursuant to Chapter 3 of Title 17, the court shall appoint counsel. A person may waive the right to counsel; but the waiver is effective only if a court makes a specific finding that the person is competent to make the waiver. In making that finding, the court must be guided but not limited by determining whether the person attempting to waive the assistance of counsel, does so understanding:
(1) the nature of the charges;
(2) the range of allowable punishments under the charges;
(3) possible defenses to the charges and circumstances in mitigation of the charges; and
(4) all other facts essential to a broad understanding of the whole matter.
(B) Whenever a person is subjected to an examination pursuant to this chapter or Article 5 of Chapter 23 of Title 44, the person may retain an expert or a professional to perform an examination. Upon the request of a person who is indigent, the court shall appoint a qualified expert or a professional to examine the person or participate in the hearing, or both. An expert or a professional obtained by an indigent person pursuant to this chapter or Article 5 of Chapter 23 of Title 44 must be compensated for these services out of funds of the department, in an amount determined by the department to be fair and reasonable. The court or the person's attorney shall inform the person of their right to obtain an expert pursuant to this subsection.
(C) If a person has been committed under this chapter or Article 5 of Chapter 23 of Title 44 or ordered to undergo alternative treatment following acquittal of a crime charged, the commitment or treatment may not exceed the maximum possible penal sentence for the offense charged. If at the end of that period the person has not been finally discharged and is still in need of commitment or treatment, civil commitment proceedings must be instituted, if appropriate.
(D) Any time a defendant is examined by a court-appointed expert or professional pursuant to this chapter or Article 5 of Chapter 23 of Title 44, the defendant is entitled to have an attorney present. A defendant may refuse to answer any question if the defendant believes the answers may tend to be incriminating or form links leading to evidence of an incriminating nature. The defendant's attorney must advise the defendant of the right to refuse to answer questions.
(E) No person confined pursuant to this chapter or Article 5 of Chapter 23 of Title 44 may be incarcerated in a state correctional institution or facility, except as provided for in Section 17-24-40(B). Confinement in a county jail or other local detention facility while awaiting placement in a treatment program or a court hearing pursuant to this chapter is permitted for no more than seven days.
Section 17-24-10. (A) It is an affirmative defense to a prosecution for a crime that, at the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong.
(B) Except as ordered by the court, evidence of insanity is not admissible unless the defendant, at the time of arraignment or within ten days after arraignment or at a later time as the court for good cause may permit, files a written notice of intent to rely on insanity as a defense. The defendant has the burden of proving the defense of insanity by a preponderance of the evidence.
(C) Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity.
Section 17-24-20. (A) A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong or to recognize his act as being wrong as defined in Section 17-24-10(A), but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law.
(B) To return a verdict of 'guilty but mentally ill' the burden of proof is upon the State to prove beyond a reasonable doubt to the trier of fact that the defendant committed the crime, and the burden of proof is upon the defendant to prove by a preponderance of evidence that when he committed the crime he was mentally ill as defined in subsection (A).
(C) The verdict of guilty but mentally ill may be rendered only during the phase of a trial which determines guilt or innocence and is not a form of verdict which may be rendered in the penalty phase.
(D) A court may not accept a plea of guilty but mentally ill unless, after a hearing, the court makes a finding upon the record that the defendant proved by a preponderance of the evidence that when he committed the crime he was mentally ill as provided in Section 17-24-20(A).
Section 17-24-30. In a prosecution for a crime when the affirmative defense of insanity is raised sufficiently by the defendant, or when sufficient evidence of a mental disease or defect of the defendant is admitted into evidence, the trier of fact shall find under the applicable law, and the verdict must so state, whether the defendant is:
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity; or
(4) guilty but mentally ill.
Section 17-24-35. If the issue of insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form: Answer
Yes or No
1. Did the defendant commit the act charged? _______
2. If your answer to number 1 is yes, do you
acquit him because of insanity existing at
the time of the act charged? _______
3. If you answer to number 2 is yes, is the
defendant a substantial danger to other
persons unless kept under further control
by the court or other persons or institutions? _______
4. If your answer to number 2 is yes, does the
defendant present a substantial likelihood of
committing felonious acts jeopardizing public
safety or security unless kept under further
control by the court or other persons or
institutions? _______
5. If your answers to either number 3 or
4 is yes, is it in the best interest of the
defendant and others that the defendant
be placed in treatment that is less restric-
tive than detention in a state mental hospital? _______
Section 17-24-40. (A) In the event a verdict of 'not guilty by reason of insanity' is returned, the trial judge shall order the defendant committed to the South Carolina State Hospital for a period not to exceed one hundred twenty days. During that time an examination shall be made of the defendant to determine the need for hospitalization of the defendant pursuant to the standards set forth in Section 44-17-580 of the 1976 Code.
(B) A report of the findings shall be made to the chief administrative judge of the circuit in which the trial was held, the solicitor, the defendant, and the defendant's attorney.
(C)(1) Within fifteen days after receipt of this report by the court, the chief administrative judge of the circuit in which the trial was held shall hold a hearing to decide whether the defendant should be hospitalized pursuant to the standard of Section 44-17-580 of the 1976 Code.
(2)(a) If the chief administrative judge finds the defendant not to be in need of hospitalization, he may order the defendant released upon such terms or conditions, if any, as he shall deem appropriate for the safety of the community and the well-being of the defendant.
(b) In the event the chief administrative judge finds the defendant to be in need of hospitalization, he shall order him committed to the South Carolina State Hospital.
(c) If at a later date it is determined by officials of the State Hospital that the defendant is no longer in need of hospitalization, they shall notify the chief administrative judge, the solicitor, the defendant, and the defendant's attorney. Within twenty-one days after the receipt of this notice the chief administrative judge, upon notice to all parties, shall hold a hearing to determine whether the defendant is in need of continued hospitalization pursuant to the standard of Section 44-17-580 of the 1976 Code. If the finding of the court is that the defendant is in need of continued hospitalization, it shall order his continued confinement. If its finding is that the defendant is not in need of continued hospitalization, it may order the defendant released upon such terms and conditions, if any, as the chief administrative judge shall deem appropriate for the safety of the community and the well-being of the defendant.
(D) Any terms and conditions imposed by the chief administrative judge shall be therapeutic in nature, not punitive. Therapeutic terms shall include, but not be limited to, requirements that the defendant:
(1) continue taking medication for an indefinite time and verify in writing the use of medication;
(2) receive periodic examinations and reviews by psychiatric personnel;
(3) report periodically to the probation office for an evaluation of his reaction to his environment and his general welfare.
(E) The chief administrative judge of the circuit in which the trial was held shall at all times have jurisdiction over the defendant for the purposes of this chapter.
(A) If a defendant is found not guilty, by reason of insanity of a felony and it is found that the defendant is not a substantial danger to others and does not present a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court, other persons, or institutions, the court shall direct the defendant's final discharge. If it is found that a defendant is a substantial danger to other persons or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court, other persons, or institutions, the court shall order the defendant's hospitalization or an appropriate alternative treatment less restrictive than detention in a state mental hospital pursuant to this chapter.
(B) If the defendant has been found not guilty by reason of insanity and/or a substantial danger to others or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security so as to require treatment in a state mental hospital, the department immediately shall cause the defendant to be committed to the mentally ill defendant program as provided for in Section 17-24-45. A person committed to that program shall receive rehabilitation services according to an individualized service plan specifically developed to treat the behavior that was the subject of the criminal proceedings. The treatment program must be administered by mental health professionals. The treatment program shall provide physical security consistent with the finding that the defendant is dangerous and shall incorporate varying conditions of security and alternative sites when the degree of dangerousness of a defendant makes this necessary. The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department. Provisions must be made for temporary placement of those persons awaiting the availability of services and housing. Temporary placement must be under the supervision of a mental health professional. South Carolina Department of Corrections facilities may be utilized for no longer than thirty days.
(C) If it is found that a defendant is not a substantial danger to others or does not present a substantial likelihood of committing felonious acts jeopardizing public safety or security, but that the defendant is in need of control by the court, other persons, or institutions, the court shall direct the defendant's conditional release. If the defendant is acquitted by reason of insanity of a crime which is not a felony, the court shall order the defendant's release or order the defendant's continued custody only for a reasonable time to allow the county-designated mental-health professional to evaluate the individual and to proceed with civil commitment pursuant to Chapter 17, Title 44 if considered appropriate.
Section 17-24-45. (A) The department shall develop a mentally ill defendant program for all such persons committed to the department pursuant to this chapter or Article 5 of Chapter 23 of Title 44. All such persons are considered to be involuntarily committed to the department. The program must include, but is not limited to, these components:
(1) an admission, observation, and evaluation unit for the purpose of providing intake services, short term observation, and evaluation services and preparing an individualized service plan;
(2) a subacute unit for persons committed for extended observation in connection with competency determinations and attaining competency for persons on conditional release returned to be stabilized or reevaluated; and for persons recently found not guilty by reason of insanity or who have had their conditional release revoked and who are to be placed in the inpatient program and for persons who have been granted 'partial release' under Section 44-23-470;
(3) an inpatient unit which provides long-term treatment for those persons who have been found not guilty by reason of insanity and were found to be a substantial danger to others and/or who present a substantial likelihood of committing felonious acts jeopardizing public safety or security;
(4) a mentally ill defendant community program for persons who have been granted conditional releases by the courts and who are involved in a gradual transition into the community.
(B) A person who is committed to the department under this chapter or Article 5 of Chapter 23 of Title 44 must be assigned to the admission, observation, and evaluation unit and must be examined promptly by qualified personnel. A person may only be assigned to this program unit as long as necessary to determine proper placement in the mentally ill defendant program and in no case longer than sixty days.
(C) A person committed to the department under this chapter or Article 5 of Chapter 23 of Title 44 must not be discharged from the control of the department, except upon an order of the court, following a hearing.
Section 17-24-50. In no case shall a defendant found not guilty by reason of insanity be confined or be under supervision longer than the maximum sentence for the crime with which he was charged without full civil commitment proceedings being held.
Section 17-24-60. Two years from the date of commitment the defendant's attorney may petition the chief administrative judge to be relieved as counsel.
Section 17-24-65. If a person committed under this chapter or Article 5 of Chapter 23 of Title 44 is entitled to attend a hearing the department shall send the person in the custody of one or more department employees to the county where the hearing is to be held at the time the case is called. During the person's absence from the facility, the person must be confined in a facility designated by and arranged for by the department and at all times is considered to be in the custody of the department employee and must be provided necessary treatment. If the decision of the hearing remits the person to custody, the department employee immediately shall return the person to the institution or facility designated by the department. If the State appeals an order of discharge or release of any type, the appeal operates as a stay, and the person in custody shall remain and immediately be returned to the institution or facility designated by the department until a final decision has been rendered in the case. If the decision of the hearing is for discharge, the department employee immediately shall return the person to the designated facility of the department only as long as is necessary to make provisions for a safe and orderly discharge and in no case longer than seven days.
Section 17-24-66. A person committed to a hospital or other facility or conditionally released pursuant to this chapter must be examined by one or more experts or professionals at least once every six months. As provided for in Section 17-24-5(B) and upon the request of a person who is indigent, the court shall appoint a qualified expert or professional to examine the person and submit a periodic report. The department, upon receipt of the periodic report, shall provide the court that committed the person with written notice of compliance with this section.
Section 17-24-70. If a verdict is returned of 'guilty but mentally ill' the defendant must be sentenced by the trial judge as provided by law for a defendant found guilty, however:
(A) If the sentence imposed upon the defendant includes the incarceration of the defendant, the defendant must first be taken to a facility designated by the Department of Corrections for treatment and retained there until in the opinion of the staff at that facility the defendant may safely be moved to the general population of the Department of Corrections to serve the remainder of his sentence.
(B) If the sentence includes a probationary sentence, the judge may impose those conditions and restrictions on the release of the defendant as the judge considers necessary for the safety of the defendant and of the community.
Section 17-24-80. (A) Should a defendant be released pursuant to Sections 17-24-40 (C)(2)(a) (A), 17-24-40 (C)(2)(c) (C), or 17-24-70(B) 44-23-470 herein, the solicitor shall immediately notify the local probation office and it shall then be the responsibility of the probation office to monitor compliance by the defendant of the terms and conditions of his release.
(B) The probation office shall file reports quarterly or more often, if necessary, of the defendant's compliance with the terms of his release with the circuit solicitor, the chief administrative judge of the circuit, the defendant's attorney, and the defendant.
(C) In the event the defendant violates any of the terms of his release, notice of the violation shall be immediately given by the probation office to the chief administrative judge of the circuit, the circuit solicitor, the defendant's attorney, and the defendant. Upon the receipt of the notice the chief administrative judge, upon notice to all parties, may order a hearing and order inpatient treatment if he finds the defendant in need of hospitalization pursuant to the standard of Section 44-17-580 of the 1976 Code, or order such other action as he may deem appropriate.
Section 17-24-90. A party may seek appellate review of the decision or order from any hearing held pursuant to this chapter. The court shall advise the person of this right.
Section 17-24-100. Nothing in this chapter or Article 5 of Chapter 23 of Title 44 prohibits a person committed prior to the effective dates of this chapter or Article 5 of Chapter 23 of Title 44 from exercising a right available to him at the time of commission of the offense or as provided for in this chapter or Article 5 of Chapter 23 of Title 44 for obtaining release from confinement."
SECTION 2. Article 5 of Chapter 23 of Title 44 is amended to read:
Section 44-23-400. As used in this article:
(1) 'Competency' means fitness to stand trial such that the person has the capacity to understand the proceedings against him and is able to assist in his own defense.
(2) 'Conditional release' means permission to leave facility under predetermined conditions and without supervision or any release that is not a full discharge.
(3) 'Department' means the State Department of Mental Health.
(4) 'Director' means the State Director of Mental Health for the State Department of Mental Health or the director's designee.
(5) 'Incompetency' means a condition in which a person lacks either or both the capacity to understand the nature of the proceedings against that person or to assist in that own person's defense as a result of mental disease or defect.
(6) 'Indigent' means a person who is financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to the person or the person's family.
(7) 'Individualized plan' means a plan prepared by mental health professionals with other professionals as a team, for persons under the jurisdiction of the department pursuant to this chapter and shall include, but is not limited to:
(a) the determination of the nature of the person's specific problems, prior charged criminal behavior, and rehabilitation needs;
(b) the determination of the conditions and strategies necessary to achieve the purposes of rehabilitation;
(c) the determination of the intermediate and long-range goals of the rehabilitation program, with a projected timetable for the attainment;
(d) the rationale for using this plan to achieve those intermediate and long-range goals;
(e) the designation of the staff responsible for carrying out the plan;
(f) the designation of where relevant, in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual discharge from involuntary confinement, and a projected possible date for discharge from involuntary confinement;
(g) the type of residence immediately anticipated for the person and possible future types of residences.
(8) 'Insanity' does not include a condition of mind proximately induced by the voluntary act of a person charged with a crime.
(9) 'Psychiatrist' means a physician licensed to practice medicine in this State who has completed three years of graduate training in psychiatry in a program approved by the American Medical Association or the American Osteopathic Association and is certified or eligible to be certified by the American Board of Psychiatry and Neurology.
(10) 'Psychologist' means a person who has been licensed as a psychologist pursuant to Chapter 55, Title 40.
(11) 'Rehabilitative services' means those services provided by program personnel to assist a person in acquiring and maintaining life skills and in raising the person's level of physical, mental, social, and vocational functioning. Rehabilitative services include, but are not limited to, education, training for employment, programs for chemical addiction, and therapy. The rehabilitative process must be undertaken with recognition of the risk to the public safety presented by the individual being assisted as manifested by prior charged criminal conduct.
(12) 'Social worker' means a person with a master's or further advanced degree from an accredited school of social work or a degree considered equivalent under regulations promulgated by the department.
(13) 'Treatment' means a currently standardized medical or mental health procedure including medication.
Section 44-23-405. No incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as the person's incompetency continues.
Section 44-23-410. (A) If a defendant has pleaded not guilty by reason of insanity, or Whenever whenever a judge of the Circuit Court or Family Court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge, on his own motion or on the motion of any party, shall:
(1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability; the examination must be made within fifteen days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or
(2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days.
(B) If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. As provided for under Section 17-24-5, the court may direct that a qualified expert or professional retained by or appointed for the defendant be permitted to witness the examination authorized by subsection (A) and that the defendant shall have access to all information obtained by the court-appointed experts or professionals. The defendant's expert or professional has the right to file a report following the guidelines of Section 44-23-420.
(C) The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted. If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on his mental capacity.
Section 44-23-420. Within five days of examination under Section 44-23-410(A)(1) or at the conclusion of the observation period under Section 44-23-410(A)(2), the designated examiners shall make a written report to the court which shall include:
(1) a description of the nature of the examination;
(2) A a diagnosis of the person's mental condition of the defendant ,; and
(2) Clinical findings bearing on the issues of whether or not the person is capable of understanding the proceedings against him and assisting in his own defense, and if there is a substantial probability that he will attain that capacity in the foreseeable future.
(3) whether the defendant suffers from a mental disease or defect and an opinion of the defendant's competency;
(4) if the defendant has indicated an intention to rely on the defense of insanity pursuant to Section 17-24-10, an opinion of the defendant's sanity at the time of the act;
(5) when directed by the court, an opinion of the defendant's capacity to have a particular state of mind that is an element of the offense charged;
(6) an opinion whether the defendant is a substantial danger to others or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions;
(7) the extent and type of control and supervision that must be exercised over the defendant.
The report of the designated examiners shall not contain any findings nor shall the examiners testify on the question of insanity should it be raised as a defense unless further examination on the question of insanity is ordered by the court.
Section 44-23-421. Any appointed examiner shall have reasonable access to the defendant for the purpose of the examination and to all relevant medical and psychological records and reports.
Section 44-23-422. The defendant may move the court for a judgment of acquittal on the grounds of insanity. However, a defendant acquitted on those grounds may not later contest the validity of being detained on the grounds that the defendant did not commit the acts charged. At the hearing upon that motion the defendant has the burden of proving by a preponderance of the evidence that insanity at the time of the offense with which he is charged. If the court finds that the defendant must be acquitted by reason of insanity, it shall enter specific findings in substantially the same form as set forth in Section 17-24-35 as now or subsequently amended. If the motion is denied, the question may be submitted to the trier of fact in the same manner as other issues of fact.
Section 44-23-430. (A) Upon receiving the report of the designated examiners the court shall set a date for and notify the person and his counsel of a hearing on the issue of his fitness to stand trial. If, in the judgment of the designated examiners or the superintendent of the facility if the person has been detained, the person is in need of hospitalization, the court with criminal jurisdiction over the person may authorize his detention in a suitable facility until the hearing. The person shall be entitled to be present at the hearings and to be represented by counsel. If upon completion of the hearing and consideration of the evidence the court finds that:
(1) The person is fit to stand trial, it shall order the criminal proceedings resumed; or
(2) The person is unfit to stand trial for the reasons set forth in Section 44-23-410 and is unlikely to become fit to stand trial in the foreseeable future, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within sixty days during which time the court shall order him hospitalized; or
(3) The person is unfit to stand trial but likely to become fit in the foreseeable future, the court shall order him hospitalized for an additional sixty days. If the person is found to be unfit at the conclusion of the additional period the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Article 1 of Chapter 21 of this title within fourteen days during which time the person shall remain hospitalized.
Subject to the provisions of Section 44-23-460, patients against whom criminal charges are pending shall have all the rights and privileges of other involuntarily hospitalized patients.
Persons against whom criminal charges are pending but who are not ordered hospitalized following judicial admission proceedings shall be released . the defendant is incompetent, the court shall order the proceedings against the defendant be stayed, except as provided in subsection (D) and, if the defendant is charged with a felony may commit the defendant to the custody of the director, who shall place the defendant in the admission, observation, and evaluation unit of the department for evaluation and treatment, or the court alternatively may order the defendant to undergo evaluation and treatment at another facility, or under the guidance and control of some other person, until the defendant possesses the competency necessary to understand the proceedings and assist in the defense, but in any event, for no longer than ninety days. A defendant found incompetent must be evaluated at the direction of the director and a determination made whether the defendant is mentally ill. The evaluation and determination must be accomplished as soon as possible following the court's placement of the defendant in the custody of the department. When appropriate a defendant who is determined to be mentally ill may be placed in a program specifically reserved for the treatment and training of persons with mental illness where the defendant has the right to rehabilitation according to an individualized service plan specifically developed for the particular needs of the defendant. The program must be appropriately secure under the circumstances and must be administered by mental health professionals who shall direct the rehabilitation efforts. The program shall provide security appropriate with the charged criminal behavior and necessary to protect the public safety. The department may establish admission priorities in the event that the number of eligible persons exceeds the available services and housing. A copy of these priorities must be sent to the facility. Provisions must be made for temporary placement of persons while awaiting the availability of services and housing. Before expiration of the initial ninety-day period of commitment the court shall conduct a hearing, at which it shall determine whether or not the defendant is incompetent. If the defendant is charged with a crime which is not a felony, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow a department mental health professional to evaluate the defendant and commence proceedings under Chapter 17, Title 44 if appropriate and subsections (B) and (C) do not apply. However, upon order of the court, the prosecutor may directly petition for fourteen days of involuntary commitment under Chapter 17, Title 44.
(B) If the court finds by a preponderance of the evidence that the defendant is incompetent, the court has the option of extending the order of commitment or alternative treatment for an additional ninety-day period, but it shall at the time of extension set a date for a prompt hearing to determine the defendant's competency before the expiration of the second ninety-day period. The defendant, the defendant's attorney, the prosecutor, or the judge has the right to demand that the hearing before the expiration of the second ninety-day period be before a jury. No extension may be ordered for a second ninety-day period or for a subsequent period as provided in subsection (C) if the defendant's incompetence has been determined by the department to be solely the result of a mental illness which is such that competence is not reasonably likely to be attained during an extension. If no demand is made, the hearing must be before the court. The court or jury shall determine whether the defendant has attained competency.
(C) At the hearing before the expiration of the second ninety-day period, if the jury or court finds that the defendant is incompetent, the charges must be dismissed without prejudice and civil commitment proceedings must be instituted, if appropriate, or the court shall order the release of the defendant. However, the criminal charges may not be dismissed if at the hearing before the end of the second ninety-day period, the court or jury finds that the defendant is a substantial danger to others or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security and that there is a substantial probability that the defendant will attain competency within a reasonable period of time. If the court or jury makes that finding, the court may extend the period of commitment for an additional six months. If the defendant remains incompetent at the end of the six-month period, the charges must be dismissed without prejudice and civil commitment proceedings must be instituted, if appropriate, or the court shall order release of the defendant
(D) If the defendant is unfit to proceed, that does not preclude a pretrial proceeding which does not require the personal participation of the defendant.
(E) A defendant receiving medication for physical or mental problems must not be prohibited from standing trial if the medication enables the defendant to understand the proceedings or to assist in the defense or does not disable the defendant from understanding and assisting.
(F) At or before the conclusion of a commitment period provided for by this section, the facility providing evaluation and treatment shall provide to the court a written report of the examination. The report shall meet the requirements of Section 44-23-420.
(G) If the court finds that there is no evidence of incompetency as a result of mental illness but there is reason to suspect mental retardation, the court shall order examination of the defendant by the Department of Disabilities and Special Needs. All requirements of Section 44-23-430 apply except that the Department of Disabilities and Special Needs is the responsible agency.
(H) If the court finds that there is evidence of both mental illness and mental retardation, the commitment for evaluation and treatment under this section shall meet the needs as caused by both deficiencies.
(I) If the court finds that there is evidence of mental retardation but no mental illness, the case must be remanded to the court for further proceedings.
(J) Subject to the provisions of Section 44-23-460, patients against whom criminal charges are pending shall have all the rights and privileges of other involuntarily hospitalized patients.
(K) Persons against whom criminal charges are pending but who are not ordered hospitalized following judicial admission proceedings shall be released.
Section 44-23-431. Subject to the rules of evidence, experts or professionals who have reported pursuant to this chapter or Chapter 24 of Title 17 may be called as witnesses at any proceeding held pursuant to this chapter. The prosecution or the defendant, or both, may summon any other qualified expert or professional to testify.
Section 44-23-440. A finding of unfitness to stand trial under Section 44-23-430 does not preclude any legal objection to the prosecution of the individual which is susceptible of fair determination prior to trial and without the personal participation of the defendant.
If either the person found unfit to stand trial or his counsel believes he can establish a defense of not guilty to the charges other than the defense of insanity, he may request an opportunity to offer a defense on the merits to the court. The court may require affidavits and evidence in support of such request. If the court grants such request, the evidence of the State and the defendant shall be heard before the court sitting without a jury. If after hearing such petition the court finds the evidence is such as would entitle the defendant to a directed verdict of acquittal, it shall dismiss the indictment or other charges.
Section 44-23-450. A finding of unfitness to stand trial under Section 44-23-430 may be reexamined by the court upon its own motion, or that of the prosecuting attorney, the person found unfit to stand trial, his legal guardian, or his counsel. Upon receipt of the petition, the court shall order an examination by two designated examiners whose report shall be submitted to the court and shall include underlying facts and conclusions. The court shall notify the individual, his legal guardian, and his counsel of a hearing at least ten days prior to such hearing. The court shall conduct the proceedings in accordance with Section 44-23-430, except that any petition that is filed within six months after the initial finding of unfitness or within six months after the filing of a previous petition under this section shall be dismissed by the court without a hearing.
Section 44-23-460. When the superintendent of a hospital or mental retardation facility believes that a person against whom criminal charges are pending no longer requires hospitalization, the court in which criminal charges are pending shall be notified and shall set a date for and notify the person of a hearing on the issue of fitness pursuant to Section 44-23-430. At such time, the person shall be entitled to assistance of counsel.
(1) If upon the completion of the hearing, the court finds the person unfit to stand trial, it shall order his release from the hospital; and
(2) If such a person has been hospitalized for a period of time exceeding the maximum possible period of imprisonment to which the person could have been sentenced if convicted as charged, the court shall order the charges dismissed and the person released; or
(3) The court may order that criminal proceedings against a person who has been found fit to stand trial be resumed, or the court may dismiss criminal charges and order the person released if so much time has elapsed that prosecution would not be in the interest of justice.
Section 44-23-470. (A) A person examined pursuant to Section 44-23-430 may make application to the director for conditional release. After considering the reports of experts or professionals who conducted the examination pursuant to Section 44-23-430, the director shall forward to the court which ordered the commitment the person's application for conditional release, recommendations concerning the application, and any proposed terms or conditions upon which the director reasonably believes the person is able to be conditionally released. Conditional release may include 'partial release' for work, training, or educational purposes. At the same time the director shall notify in writing the prosecuting attorney of any county to which the person is to be released and the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed.
(B) Upon receipt of an application for conditional release with the recommendation for conditional release, the court of the county that ordered the commitment shall schedule a hearing within thirty days. The court also may schedule a hearing on an application recommended by the director for disapproval. The prosecuting attorney shall represent the State at these hearings and has the right to have the patient examined by an expert or professional of the person's choice. As provided for in Section 17-24-5(B) and upon the request of a person who is indigent, the court shall appoint a qualified expert or professional to examine the person. The issue to be determined at the hearing is whether the person may be released conditionally without substantial danger to others and without substantial likelihood of committing felonious acts jeopardizing public safety or security. After the hearing and after considering the application and the director's recommendations or proposed terms or conditions for release, the court shall rule on the application. A denial of a conditional release must be based upon substantial evidence. The court may modify the suggested terms and conditions of the conditional release. If the court grants the application for conditional release, the person must be released under the conditions set forth by the court. If the application is denied the person must be remitted to the custody of the department as provided for in Section 17-24-40(B). If the application is granted, the person must be returned to the custody of the department for as long as is necessary to make provisions for a safe and orderly discharge and in no case longer than seven days.
(C) If the court orders regular or periodic medication or other medical treatment for the person as a condition of the release, the court shall require the person to report to a physician or other person for the medication or treatment. If the released person fails to appear for the medication or treatment, the physician or other person immediately shall report the failure to the court and to the prosecuting attorney of the county in which the released person was committed.
(D) A person whose application for conditional release has been denied may reapply after six months from the date of denial.
Section 44-23-480. The director of a state institution designated for the custody, care, and treatment of persons committed under this chapter or Chapter 24 of Title 17 shall notify appropriate law enforcement agencies through the state law enforcement network of the conditional release of persons committed under this chapter. Notification must be made at least forty-eight hours before the conditional release and shall include the name of the person, the place to which the person has permission to go, and the dates and times during which the person will be on conditional release.
Section 44-23-490. (A) If a person committed under this chapter or Chapter 24 of Title 17 escapes from a state facility or disappears under a conditional release, the director of the facility shall notify as appropriate, local law enforcement officers, other governmental agencies, the person's relatives, and any other appropriate persons about information necessary for public safety or to assist in the apprehension of the person.
(B) Upon receiving notification of the apprehension, the court shall promptly schedule a hearing. In accordance with the court's findings, the court may continue, modify, or revoke the conditional release. If the release is revoked the person must be remitted subject to release only in accordance with this chapter.
Section 44-23-500. The mentally ill defendant community program of Chapter 24 of Title 17 shall provide adequate monitoring and resources to ensure that a released person has the necessary means of living a healthy and productive life.
Section 44-23-510. A person who is conditionally released pursuant to this chapter or Chapter 23 of Title 17 must be reviewed by the court that granted the conditional release no later than one year after the release and every two years thereafter. The review may be held sooner or more frequently if the court determines it is necessary based on its own motion or on motion of the person, the director, the prosecuting attorney, or another concerned person. The question to be determined by the court on review is whether the person may continue to be conditionally released. The court in making its determination shall consider the periodic reports filed pursuant to this chapter and Chapter 23 of Title 17 and the opinions of the director and other experts or professionals.
Section 44-23-520. (A) If a released person fails to comply with the terms of the release or is in need of additional care and treatment, an immediate hearing may be scheduled by the court on its own motion or on the petition of a person who submits reports pursuant to Section 17-24-80, the department, the prosecuting attorney, or another concerned person for the purpose of modifying the terms of conditional release.
(B) If the prosecuting attorney, the commissioner, or the court reasonably believes that a conditionally released person is failing to comply with terms and conditions of the release the court or director may order that the conditionally released person be apprehended and taken into custody until a hearing is scheduled. The court must be notified before the close of the next judicial day that the person was apprehended. The prosecuting attorney and the conditionally released person have the right to request an immediate psychiatric examination of the conditionally released person as provided for in Section 17-24-5(B) and upon the request of a conditionally released person who is indigent, the court shall appoint a qualified expert or professional to examine the person.
Section 44-23-530. (A) Upon application by the committed or conditionally released person, the director shall determine whether reasonable grounds exist for final discharge. If the director approves final discharge, the director shall authorize the person to petition the court. If the director denies approval of the formal discharge, the petitioner may apply again in six months. After three denials, the person may petition the court directly.
(B) The court and the prosecuting attorney must be served with the petition. Within forty-five days of receiving the petition for final discharge, the court shall schedule a hearing. A continuance of the hearing may be granted only for good cause shown. The prosecuting attorney shall represent the State and has the right to have the petitioner examined by an expert or professional of the person's choice. As provided for in Section 17-24-5(B) and upon the request of a petitioner who is indigent, the court shall appoint a qualified expert or professional to examine the petitioner. The hearing must be before a jury if requested by the petitioner or the prosecuting attorney. The petitioner has the burden to prove by a preponderance of the evidence that the petitioner may be finally discharged without substantial danger to others and without presenting a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.
(C) Nothing contained in this section, this chapter or Chapter 23 of Title 17 prohibits the person from petitioning the court for final discharge or conditional release from the institution in which the person is committed. The issue to be determined on the proceeding is whether the petitioner is a substantial danger to others or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.
Section 44-23-540. (A) A person involuntarily detained, hospitalized, or committed pursuant to this chapter of Chapter 24 of Title 17 has the right to adequate care and individualized treatment. The person who has custody of the patient or is in charge of treatment shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations of the patient filed with the director pursuant to this chapter or Chapter 24 of Title 17.
(B) All records and reports made pursuant to this chapter and chapter 24 of Title 17 must be made available only upon request to the committed person, to the person's attorney or physician, the prosecuting attorney, the court, the South Carolina Protection and Advocacy for the Handicapped, or other experts or professionals who, upon proper showing, demonstrate a need for access to the records. All records and reports made pursuant to this chapter or Chapter 24 of Title 17 also must be made available, upon request, to the Department of Probation, Parole, and Pardon Services if the person was on parole or probation at the time of detention, hospitalization, or commitment.
Section 44-23-550. The department is responsible for all costs relating to the evaluation and treatment of a person committed to the department pursuant to this chapter and chapter 24 of Title 17, including the logistical and support services pertaining to evaluation and treatment.
Section 44-23-560. With regard to the care, treatment, and rights of defendants committed pursuant to this chapter or Chapter 24 of Title 17, if there is a conflict between the mandates of this chapter and any other provision of law, this chapter controls."
SECTION 3. Section 44-9-100 of the 1976 Code, as last amended by Act 37 of 1993, is further amended to read:
"Section 44-9-100. The commission may:
(1) prescribe the form of and information to be contained in applications, records, reports, and medical certificates provided for under this chapter, Chapter 11, Chapter 13, Article 1 of Chapter 15, Chapter 17, Chapter 22, Chapter 23, Chapter 24, Chapter 27, and Chapter 52;
(2) require reports from the superintendent of an institution relating to the admission, examination, diagnosis, discharge, or conditional discharge of a patient;
(3) investigate complaints made by a patient or by a person on behalf of a patient;
(4) adopt promulgate regulations not inconsistent with Chapter 24 of Title 17 and Article 5 of Chapter 23 of Title 44, this chapter, Chapter 11, Chapter 13, Article 1 of Chapter 15, Chapter 17, Chapter 22, Chapter 23, Chapter 24, Chapter 27, and Chapter 52 of this title as it may find to be reasonably necessary for the government of all institutions over which it has authority and of state mental health facilities and the proper and efficient institutionalization of the mentally ill, mentally defective, epileptic, psychotic senile, drug addicted, or alcoholic;
(5) take appropriate action to initiate and develop relationships and agreements with state, local, federal, and private agencies, hospitals, and clinics as it considers necessary to increase and enhance the accessibility and delivery of emergency and all other types of mental health services."
SECTION 4. Section 44-13-30 of the 1976 Code is amended to read:
"Section 44-13-30. Unless he was admitted pursuant to the Interstate Compact on Mental Health as set out in Section 44-25-20 or a supplementary agreement thereto, if any person admitted to a State mental health facility is not a citizen of this State, the superintendent of the facility concerned shall immediately notify the Department of Mental Health, and the Department of Mental Health shall notify the mental health commission or other appropriate agency of the state of which the patient or trainee is a citizen. If the state of his citizenship fails to provide for his removal within a reasonable time, the Department of Mental Health shall cause him to be delivered to the officials authorized by law to care for similar persons pending their commitment to state institutions of the state of his citizenship. The cost of these proceedings and conveyance from this State shall be borne by this State under reciprocity agreements made by the Department of Mental Health with the mental health authorities of other states. In entering upon such reciprocal agreements with other states, the Department of Mental Health shall provide that the requirements necessary to gain residence in this State shall not be less than those required for the acquisition of residence in the other contracting state. The Department of Mental Health may, however, in cases of undue hardship waive the requirements of residence, for cause. This section does not apply to a person committed to a mentally ill defendant program pursuant to Chapter 24 of Title 17 or Article 5 of Chapter 23 of Title 44."
SECTION 5. Section 44-22-100 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 44-22-100. (A) Certificates, applications, records, and reports made for the purpose of Chapter 24 of Title 17, Article 5 of Chapter 23 of Title 44, this chapter or Chapter 9, Chapter 11, Chapter 13, Article 1 of Chapter 15, Chapter 17, Chapter 23, Chapter 24, Chapter 25, Chapter 27, or Chapter 52 of this title and directly or indirectly identifying a mentally ill or alcohol and drug abuse patient or former patient or individual whose commitment has been sought must be kept confidential and must not be disclosed unless:
(1) the individual identified or his guardian consents;
(2) a court directs that disclosure is necessary for the conduct of proceedings before it and that failure to make the disclosure is contrary to the public interest;
(3) disclosure is required for research conducted or authorized by the department or the Department of Alcohol and Other Drug Abuse Services and with the consent of the patient;
(4) disclosure is necessary to cooperate with law enforcement, health, welfare, and other state or federal agencies or when furthering the welfare of the patient or his family; or
(5) disclosure is necessary to carry out the provisions of Chapter 24 of Title 17, Article 5 of Chapter 23 of Title 44, this chapter or Chapter 9, Chapter 11, Chapter 13, Article 1 of Chapter 15, Chapter 17, Chapter 23, Chapter 24, Chapter 25, Chapter 27, or Chapter 52 of this title.
(B) Nothing in this section:
(1) precludes disclosure, upon proper inquiry, of information as to a patient's current medical condition to members of his family, or the Governor's ombudsman office; or
(2) requires the release of records of which disclosure is prohibited or regulated by federal law.
(C) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than one year, or both."
SECTION 6. Section 44-23-210 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 44-23-210. A person confined in a state institution or a person confined in a state or private mental health or mental retardation facility may be transferred to another mental health or mental retardation facility if:
(1) the superintendent of a state institution not under the jurisdiction of the Department of Mental Health or the director of a treatment facility under the jurisdiction of the Department of Mental Health requests the admission of a person confined there to a state mental health facility if the person is suspected of being mentally ill. If after full examination by two designated examiners, one of whom must be a licensed physician, the director of the mental health facility is of the opinion that the person is mentally ill, the director shall notify the superintendent of the institution or the director of the facility to which the person was admitted who shall commence proceedings pursuant to Sections 44-17-510 through 44-17-610;
(2) the director of a facility in which the patient resides determines that it would be consistent with the medical needs of the person, the Department of Mental Health may transfer or authorize the transfer of the patient from one facility to another. If the transfer is from a less restricted facility to a substantially more secure facility and the patient objects to the transfer, a hearing to give the patient a reasonable opportunity to contest the transfer must be held pursuant to Sections 44-17-540 through 44-17-570. When a patient is transferred, written notice must be given to the patient's legal guardian, attorney, parents or spouse or, if none be known, to the patient's nearest known relative or friend. This section may not be construed to apply to transfers of a patient within a mental health facility; or
(3) the legal guardian, parent, spouse, relative, or friend of an involuntary patient submits a request for the transfer of the patient from one facility to another and the reasons for desiring the transfer to the Department of Mental Health and unless the Department of Mental Health reasonably determines that it would be inconsistent with the medical needs of the person, the transfer must be made. If the transfer is from a less restricted to a substantially more secure facility, item (2) governs. This section does not apply to a person committed to a mentally ill defendant program under Chapter 28 of Title 17 or Article 5 of Chapter 23 of Title 44."
SECTION 7. This act takes effect July 1, 2000.
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