SB 688 — Determination of competency; report to Commissioner of Behavioral Health and Developmental Services.

SESSION INTRODUCEDENGROSSED 22104203D I SENATE BILL NO.

688 OfferedSenate JanuaryAmendments 20,in 2022[ N] - February 14, 2022 A BILL to amend and reenact § 19.2-169.1 of the Code of Virginia, relating to determination of T competency;

report to Commissioner of ––––––––––Behavioral Health and Developmental Services.

R–––––––––– Patron––MasonPatron ––––––––––Prior Ot––––––––––ent––Senator Mason Referred to Committee on the Judiciary D –––––––––– E Be it enacted by the General Assembly of Virginia:

UN 1.

C § 19.2-169.1.

evaluation and detA.G determination of competency.

R A.

–– If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant totoat § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or toSo assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations;

(ii) has successfully completed forensic evaluation training recognized by the Commissioner of BehavioralBehavioraD forensicHealth evaluations;and Developmental Services;

and(iii) (iv)has isdemonstrated includedto onthe aCommissioner listcompetence ofto approvedperform evaluatorsforensic maintainedevaluations; by theerform Commissioner.

Band B.(iv) is included on a list of approved evaluators maintained by the Commissioner.

B.

–– The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant totoefendant is § 19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, 19.2-182.9, or Article 5 (§ 37.2-81437.2-S14 et seq.) of Chapter 8 of Title 37.2.

CommonwealthB toC. provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment;

(ii)Provision the names and addresses of theinformation attorneyto forevaluators. the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation;

–– The court shall require the attorney for the 8 Commonwealth to provide to the evaluators appointed under subsection A any information relevantEto the evaluation, including, but not limited to (i) a copy of the warrant or indictment;

(ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering 34 the evaluation;

and (iv) a summary of the reasons for the :35 evaluation request.

35The evaluationcourt request.shall require the attorney for the defendant to provide any available information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to 38 this section.

The39 courtD. shall require the attorney for the defendant to provide any available 36 psychiatric records and other information that is deemed relevant.

The courtcompetency shallreport. require that 37 information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to 38 this section.

–– Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant's capacity to understand the proceedings against him;

Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community servicesfor boardthe foreseeable future due to an ongoing and irreversible medical condition, and where prior medicalt or behavioraleducational healthrecords authority.are available to support the diagnosis, or if the defendant was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3.

In cases where a defendant is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3.

The evaluator shall also send a redacted copy of the report removing references to the defendant's name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of (i) conducting peer review and (ii) monitoring use of forensic assessments by the courts and theirDepartment impactshall ontake theappropriate defendantsprecautions andto theprevent public.use or disclosure of identifiable information for any purposes other than those specified in this section or otherwise authorized by law.

InAny transmitting,copies storing,of andSB688E using2 theof reports,2 the reports used for anythe purposespurpose otherof thanpeer thosereview specifiedto establish and maintain the list of approved evaluators described in thissubsection sectionA orshall otherwisebe authorizedredacted by law.the Department in advance of disclosure by removing references to the defendant's name, date of birth, case number, and court of jurisdiction.

Any copies of SB688 2 of 2 the reports used for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A shall be redacted by the Department in advance of disclosure by removing references to the defendant's name, date of birth, case number, and court of jurisdiction.

[ 2.

That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2022 by the General Assembly that becomes law.