1|ENGROSSED SENATE |
|BILL NO. 1089 By: Rosino of the Senate |
2| |
| and |
3| |
| Lawson of the House |
4| |
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5| |
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6| An Act relating to determination of competency; |
| amending 22 O.S. 2021, Sections 1175.1, as amended by |
7| Section 1, Chapter 73, O.S.L. 2024, and 1175.6a (22 |
| O.S. Supp. 2024, Section 1175.1), which relate to |
8| definitions and persons capable of achieving |
| competence; modifying definition; directing court to |
9| conduct competency proceedings for certain persons; |
| establishing procedures for court to conduct |
10| competency proceedings for certain persons; requiring |
| criminal proceedings to resume upon certain |
11| determination; requiring additional competency |
| restoration services upon certain determination; |
12| requiring commencement of civil commitment |
| proceedings upon certain determination; tolling |
13| statute of limitations under certain circumstances; |
| amending 43A O.S. 2021, Sections 1-103, as last |
14| amended by Section 1, Chapter 96, O.S.L. 2024, and |
| 7-101 (43A O.S. Supp. 2024, Section 1-103), which |
15| relate to definitions and discharge or permission to |
| leave facility; modifying definition; establishing |
16| requirements for certain civil commitment upon |
| dismissal of certain criminal charges; requiring |
17| certain reporting by Department of Mental Health and |
| Substance Abuse Services; requiring certain notice; |
18| authorizing filing of certain objection; establishing |
| procedures for hearing on certain discharge; |
19| requiring appointment of counsel under certain |
| circumstances; requiring court to make certain |
20| determination; authorizing appeal of certain court |
| order; authorizing stay of certain order; |
21| establishing standards for certain review; clarifying |
| applicability of provisions; updating statutory |
22| references; updating statutory language; and |
| providing an effective date. |
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Page 1
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1| |
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2|BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: |
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3| SECTION 1. AMENDATORY 22 O.S. 2021, Section 1175.1, as |
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4|amended by Section 1, Chapter 73, O.S.L. 2024 (22 O.S. Supp. 2024, |
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5|Section 1175.1), is amended to read as follows: |
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6| Section 1175.1. As used in Sections 1175.1 through 1176 of this |
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7|title: |
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8| 1. "Competent" or "competency" means the present ability of a |
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9|person arrested for or charged with a crime to understand the nature |
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10|of the charges and proceedings brought against him or her and to |
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11|effectively and rationally assist in his or her defense; |
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12| 2. "Criminal proceeding" means every stage of a criminal |
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13|prosecution after arrest and before judgment, including, but not |
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14|limited to, interrogation, lineup, preliminary hearing, motion |
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15|dockets, discovery, pretrial hearings and trial; |
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16| 3. "Dangerous" means a person who is a person requiring |
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17|treatment as defined in Section 1-103 of Title 43A of the Oklahoma |
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18|Statutes; |
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19| 4. "Incompetent" or "incompetency" means the present inability |
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20|of a person arrested for or charged with a crime to understand the |
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21|nature of the charges and proceedings brought against him or her and |
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22|to effectively and rationally assist in his or her defense; |
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23| |
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1| 5. "Public guardian" means the Office of Public Guardian as |
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2|established under the Oklahoma Public Guardianship Act in Section |
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3|6-101 et seq. of Title 30 of the Oklahoma Statutes; |
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4| 6. "Qualified forensic examiner" means any: |
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5| a. psychiatrist with forensic training and experience, |
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6| b. psychologist with forensic training and experience, or |
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7| |
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8| c. a licensed mental health professional whose forensic |
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9| training and experience enable him or her to form |
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10| expert opinions regarding mental illness, competency |
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11| and dangerousness and who has been approved to render |
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12| such opinions by the court; provided, however, a |
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13| licensed mental health professional shall not be |
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14| qualified to issue expert opinions as to competency or |
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15| dangerousness in cases in which a person is alleged to |
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16| be incompetent due to intellectual disability; and |
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17| 7. "Reasonable period of time" means a period not to exceed the |
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18|lesser of: |
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19| a. the maximum sentence specified for the most serious |
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20| offense with which the defendant is charged, or |
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21| b. a maximum period of two (2) years. |
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22| Any time period where the defendant refuses medication |
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23|prescribed or ordered that is designed to restore the defendant to |
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24| |
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1|competency shall not be used in the calculation of a reasonable |
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2|period of time. |
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3| SECTION 2. AMENDATORY 22 O.S. 2021, Section 1175.6a, is |
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4|amended to read as follows: |
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5| Section 1175.6a. A. If the person is found to be incompetent |
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6|prior to conviction because he or she is a person requiring |
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7|treatment as defined in Section 1-103 of Title 43A of the Oklahoma |
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8|Statutes, but capable of achieving competence with treatment within |
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9|a reasonable period of time as defined by Section 1175.1 of this |
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10|title, the court shall suspend the criminal proceedings and order |
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11|the Department of Mental Health and Substance Abuse Services to |
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12|provide treatment, therapy or training which is calculated to allow |
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13|the person to achieve competency. The Department may designate a |
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14|willing entity to provide such competency restoration services on |
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15|behalf of the Department, provided the entity has qualified |
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16|personnel. The court shall further order the Department to take |
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17|custody of the individual as soon as a forensic bed becomes |
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18|available, unless both the Department and the county jail where the |
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19|person is being held determine that it is in the best interests of |
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20|the person to remain in the county jail. Such competency |
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21|restoration services shall begin within a reasonable period of time |
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22|after the court has determined that the person is not competent to |
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23|stand trial. |
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1| The person shall remain in the custody of the county jail until |
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2|such time as the Department has a bed available at the forensic |
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3|facility unless competency restoration services are provided by a |
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4|designee of the Department, in which case custody of the person |
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5|shall be transferred to the Department. |
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6| B. The Department of Mental Health and Substance Abuse Services |
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7|or designee shall make periodic reports to the court as to the |
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8|competency of the defendant. |
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9| C. If the person is determined by the Department of Mental |
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10|Health and Substance Abuse Services or designee to have regained |
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11|competency, or is no longer incompetent because the person is a |
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12|person requiring treatment as defined by Section 1-103 of Title 43A |
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13|of the Oklahoma Statutes, a hearing shall be scheduled within twenty |
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14|(20) days: |
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15| 1. If found competent by the court or a jury after such |
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16|rehearing, criminal proceedings shall be resumed; |
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17| 2. If the person is found to continue to be incompetent because |
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18|the person is a person requiring treatment as defined in Section |
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19|1-103 of Title 43A of the Oklahoma Statutes, the person shall be |
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20|returned to the custody of the Department of Mental Health and |
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21|Substance Abuse Services or designee; |
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22| 3. If the person is found to be incompetent because the person |
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23|is intellectually disabled an individual with intellectual |
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24|disability as defined by Section 1408 of Title 10 of the Oklahoma |
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1|Statutes, the court shall issue the appropriate order as set forth |
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2|in Section 1175.6b of this title; |
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3| 4. If the person is found to be incompetent for reasons other |
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4|than the person is a person requiring treatment as defined by |
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5|Section 1-103 of Title 43A of the Oklahoma Statutes, and other than |
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6|the person is intellectually disabled an individual with |
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7|intellectual disability as defined in Section 1408 of Title 10 of |
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8|the Oklahoma Statutes, and is also found to be not dangerous as |
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9|defined by Section 1175.1 of this title, the court shall issue the |
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10|appropriate order as set forth in Section 1175.6b of this title; or |
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11| 5. If the person is found to be incompetent for reasons other |
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12|than the person is a person requiring treatment as defined by |
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13|Section 1-103 of Title 43A of the Oklahoma Statutes, and other than |
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14|the person is intellectually disabled an individual with |
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15|intellectual disability as defined in Section 1408 of Title 10 of |
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16|the Oklahoma Statutes, but is also found to be dangerous as defined |
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17|by Section 1175.1 of this title, the court shall issue the |
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18|appropriate order as set forth in Section 1175.6c of this title. |
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19| D. If the person is found to be incompetent because the person |
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20|is a person requiring treatment as defined by Section 1-103 of Title |
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21|43A of the Oklahoma Statutes, but not capable of achieving |
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22|competence with treatment within a reasonable period of time as |
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23|defined by Section 1175.1 of this title, the court shall commence |
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24|civil commitment proceedings pursuant to Title 43A of the Oklahoma |
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1|Statutes and shall dismiss without prejudice the criminal |
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2|proceeding. If the person is subsequently committed to the |
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3|Department of Mental Health and Substance Abuse Services pursuant to |
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4|Title 43A of the Oklahoma Statutes, the statute of limitations for |
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5|the criminal charges which were dismissed by the court shall be |
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6|tolled until the person is discharged from the Department of Mental |
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7|Health and Substance Abuse Services pursuant to Section 7-101 of |
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8|Title 43A of the Oklahoma Statutes. |
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9| E. For a person undergoing competency restoration services, |
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10|within thirty (30) days after the expiration of the reasonable |
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11|period of time as defined by Section 1175.1 of this title, the court |
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12|shall hold a hearing to determine whether the person has been |
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13|restored to competency. |
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14| 1. No less than fifteen (15) days prior to the hearing the |
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15|Department of Mental Health and Substance Abuse Services shall |
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16|submit a report to the court, the person's attorney, and the |
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17|prosecuting agency detailing the person's status and progress in |
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18|being restored to competency including the person's historical and |
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19|current compliance with medication and treatment and a plan for |
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20|competency restoration if additional competency restoration services |
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21|are ordered by the court. |
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22| 2. If the court determines that the person has been restored to |
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23|competency, the criminal proceedings shall resume. |
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24| |
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1| 3. If the court determines that the person has not been |
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2|restored to competency, the court shall determine whether additional |
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3|competency restoration services are likely to be beneficial in |
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4|restoring the person to competency. If the court finds by a |
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5|preponderance of the evidence that additional competency restoration |
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6|services are: |
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7| a. likely to be beneficial in restoring the person to |
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8| competency, the court shall order the person to remain |
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9| in or be transferred to the custody of the Department |
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10| which shall continue to provide treatment, therapy, or |
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11| training calculated to restore the person to |
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12| competency for a period of time not to exceed the |
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13| lesser of an additional two (2) years or the maximum |
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14| sentence specified for the most serious offense with |
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15| which the defendant is charged, or |
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16| b. not likely to be beneficial in restoring the person |
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17| to competency, the court shall commence civil |
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18| commitment proceedings pursuant to Title 43A of the |
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19| Oklahoma Statutes and shall dismiss without prejudice |
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20| the criminal proceeding. If the person is |
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21| subsequently committed to the Department pursuant to |
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22| Title 43A of the Oklahoma Statutes, the statute of |
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23| limitations for the criminal charges which were |
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24| dismissed by the court shall be tolled until the |
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1| person is discharged from the Department pursuant to |
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2| Section 7-101 of Title 43A of the Oklahoma Statutes. |
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3| SECTION 3. AMENDATORY 43A O.S. 2021, Section 1-103, as |
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4|last amended by Section 1, Chapter 96, O.S.L. 2024 (43A O.S. Supp. |
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5|2024, Section 1-103), is amended to read as follows: |
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6| Section 1-103. When used in this title, unless otherwise |
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7|expressly stated, or unless the context or subject matter otherwise |
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8|requires: |
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9| 1. "Department" means the Department of Mental Health and |
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10|Substance Abuse Services; |
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11| 2. "Chair" means the chair of the Board of Mental Health and |
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12|Substance Abuse Services; |
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13| 3. "Mental illness" means a substantial disorder of thought, |
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14|mood, perception, psychological orientation or memory that |
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15|significantly impairs judgment, behavior, capacity to recognize |
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16|reality or ability to meet the ordinary demands of life; |
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17| 4. "Board" means the Board of Mental Health and Substance Abuse |
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18|Services as established by the Mental Health Law; |
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19| 5. "Commissioner" means the Commissioner of Mental Health and |
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20|Substance Abuse Services; |
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21| 6. "Indigent person" means a person who does not have |
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22|sufficient assets or resources to support the person and to support |
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23|members of the family of the person lawfully dependent on the person |
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24|for support; |
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1| 7. "Facility" means any hospital, school, building, house or |
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2|retreat, authorized by law to have the care, treatment or custody of |
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3|an individual with mental illness, drug or alcohol dependency, |
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4|gambling addiction, or an eating disorder including, but not limited |
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5|to, public or private hospitals, community mental health centers, |
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6|clinics, satellites, and community-based structured crisis centers; |
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7|provided, that facility shall not mean a child guidance center |
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8|operated by the State Department of Health; |
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9| 8. "Consumer" means a person under care or treatment in a |
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10|facility pursuant to the Mental Health Law, or in an outpatient |
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11|status; |
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12| 9. "Care and treatment" means medical care and behavioral |
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13|health services, as well as food, clothing and maintenance, |
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14|furnished to a person; |
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15| 10. Whenever in this law or in any other law, or in any rule or |
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16|order made or promulgated pursuant to this law or to any other law, |
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17|or in the printed forms prepared for the admission of consumers or |
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18|for statistical reports, the words "insane", "insanity", "lunacy", |
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19|"mentally sick", "mental disease" or "mental disorder" are used, |
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20|such terms shall have equal significance to the words "mental |
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21|illness"; |
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22| 11. "Licensed mental health professional" means: |
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23| a. a psychiatrist who is a diplomate of the American |
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24| Board of Psychiatry and Neurology, |
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1| b. a psychiatrist who is a diplomate of the American |
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2| Osteopathic Board of Neurology and Psychiatry, |
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3| c. a physician licensed pursuant to the Oklahoma |
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4| Allopathic Medical and Surgical Licensure and |
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5| Supervision Act or the Oklahoma Osteopathic Medicine |
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6| Act, |
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7| d. a clinical psychologist who is duly licensed to |
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8| practice by the State Board of Examiners of |
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9| Psychologists, |
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10| e. a professional counselor licensed pursuant to the |
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11| Licensed Professional Counselors Act, |
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12| f. a person licensed as a clinical social worker |
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13| pursuant to the provisions of the Social Worker's |
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14| Licensing Act, |
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15| g. a licensed marital and family therapist as defined in |
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16| the Marital and Family Therapist Licensure Act, |
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17| h. a licensed behavioral practitioner as defined in the |
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18| Licensed Behavioral Practitioner Act, |
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19| i. an advanced practice nurse as defined in the Oklahoma |
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20| Nursing Practice Act, |
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21| j. a physician's assistant who is licensed in good |
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22| standing in this state, or |
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23| k. a licensed alcohol and drug counselor/mental health |
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24| |
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1| (LADC/MH) as defined in the Licensed Alcohol and Drug |
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2| Counselors Act; |
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3| 12. "Mentally incompetent person" means any person who has been |
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4|adjudicated mentally or legally incompetent by an appropriate |
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5|district court; |
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6| 13. a. "Person requiring treatment" means a person who |
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7| because of his or her mental illness or drug or |
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8| alcohol dependency meets at least one of the |
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9| following: |
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10| (1) poses a substantial risk of immediate physical |
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11| harm to self as manifested by evidence or serious |
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12| threats of or attempts at suicide or other |
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13| significant self-inflicted bodily harm, |
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14| (2) poses a substantial risk of immediate physical |
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15| harm to another person or persons as manifested |
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16| by evidence of violent behavior directed toward |
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17| another person or persons, |
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18| (3) has placed another person or persons in a |
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19| reasonable fear of violent behavior directed |
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20| towards such person or persons or serious |
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21| physical harm to them as manifested by serious |
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22| and immediate threats, |
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23| (4) is in a condition of severe deterioration that is |
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24| continuing, as has been observed within the |
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1| previous seventy-two (72) hour seventy-two-hour |
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2| period such that, without immediate intervention, |
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3| there exists a substantial risk that severe |
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4| impairment or injury will result to the person, |
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5| or |
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6| (5) poses a substantial risk of immediate serious |
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7| physical injury to self or death as manifested by |
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8| evidence that the person is unable to provide for |
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9| and is not providing for his or her basic |
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10| physical needs. |
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11| b. To the extent it is reasonably available, the |
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12| relevant mental health or substance abuse history of |
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13| the person shall be considered and may be proffered as |
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14| part of the evidence to determine whether the person |
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15| is a person requiring treatment or an assisted |
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16| outpatient. The mental health or substance abuse |
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17| history of the person shall not be the sole basis for |
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18| this determination. |
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19| c. In determining whether the person is a person |
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20| requiring treatment, the following shall also be |
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21| considered along with any other relevant information: |
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22| (1) the person's history of violence or criminal |
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23| acts including unadjudicated criminal acts if |
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24| |
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1| evidence of the person's culpability is evident |
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2| or established, |
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3| (2) the person's history of compliance with mental |
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4| and behavioral health medication and treatment, |
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5| (3) the probability and result of the person's |
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6| noncompliance with medication and treatment if |
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7| not committed, |
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8| (4) the consumer's history of using weapons in an |
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9| illegal or unsafe manner, and |
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10| (5) any previous instances of harm, attempted harm, |
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11| or threatened harm to self or others. |
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12| d. Unless a person also meets the criteria established |
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13| in subparagraph a or, b, or c of this paragraph, |
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14| "person requiring treatment" or an "assisted |
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15| outpatient" shall not mean: |
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16| (1) a person whose mental processes have been |
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17| weakened or impaired by reason of advanced years, |
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18| dementia, or Alzheimer's disease, |
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19| (2) a person who is an individual with intellectual |
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20| disability or developmental disability as defined |
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21| in Section 1408 of Title 10 of the Oklahoma |
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22| Statutes, |
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23| (3) a person with seizure disorder, |
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24| (4) a person with a traumatic brain injury, or |
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1| (5) a person who is homeless. |
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2| d. e. (1) A person who meets the criteria established in |
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3| this paragraph but who is medically unstable may |
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4| be discharged and transported in accordance with |
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5| Section 1-110 of this title. Alternatively, if |
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6| the facility holding the person is able to treat |
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7| the additional medical conditions of that person, |
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8| the facility may treat the additional medical |
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9| conditions in an effort to medically stabilize |
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10| the patient. |
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11| (2) If the facility holding the person is unable to |
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12| treat the additional medical conditions of a |
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13| person who meets the criteria established in this |
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14| paragraph, the patient shall be discharged and |
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15| transported in accordance with Section 1-110 of |
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16| this title. |
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17| (3) All time elapsed during medical stabilization |
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18| tolls the twelve (12) hour twelve-hour time for |
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19| an initial assessment pursuant to paragraph 1 of |
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20| subsection A of Section 5-208 of this title, and |
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21| the one-hundred-twenty-hour emergency detention |
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22| time pursuant to paragraph 3 of subsection A of |
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23| Section 5-208 of this title; |
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24| |
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1| 14. "Petitioner" means a person who files a petition alleging |
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2|that an individual is a person requiring treatment or an assisted |
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3|outpatient; |
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4| 15. "Executive director" means the person in charge of a |
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5|facility as defined in this section; |
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6| 16. "Private hospital or facility" means any general hospital |
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7|maintaining a neuro-psychiatric unit or ward, or any private |
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8|hospital or facility for care and treatment of a person having a |
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9|mental illness, which is not supported by the state or federal |
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10|government. The term "private hospital" or "facility" shall not |
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11|include nursing homes or other facilities maintained primarily for |
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12|the care of elderly and disabled persons; |
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13| 17. "Individualized treatment plan" means a proposal developed |
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14|during the stay of an individual in a facility, under the provisions |
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15|of this title, which is specifically tailored to the treatment needs |
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16|of the individual. Each plan shall clearly include the following: |
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17| a. a statement of treatment goals or objectives, based |
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18| upon and related to a clinical evaluation, which can |
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19| be reasonably achieved within a designated time |
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20| interval, |
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21| b. treatment methods and procedures to be used to obtain |
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22| these goals, which methods and procedures are related |
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23| to each of these goals and which include specific |
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24| prognosis for achieving each of these goals, |
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1| c. identification of the types of professional personnel |
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2| who will carry out the treatment procedures including |
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3| appropriate medical or other professional involvement |
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4| by a physician or other health professional properly |
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5| qualified to fulfill legal requirements mandated under |
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6| state and federal law, |
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7| d. documentation of involvement by the individual |
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8| receiving treatment and, if applicable, the accordance |
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9| of the individual with the treatment plan, and |
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10| e. a statement attesting that the executive director of |
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11| the facility or clinical director has made a |
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12| reasonable effort to meet the plan's individualized |
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13| treatment goals in the least restrictive environment |
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14| possible closest to the home community of the |
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15| individual; |
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16| 18. "Telemedicine" means technology-enabled health and care |
| |
17|management and delivery systems that extend capacity and access, |
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18|which includes: |
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19| a. synchronous mechanisms, which may include live |
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20| audiovisual interaction between a patient and a health |
| |
21| care professional or real-time provider to provider |
| |
22| consultation through live interactive audiovisual |
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23| means, |
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24| |
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1| b. asynchronous mechanisms, which include store and |
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2| forward transfers, online exchange of health |
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3| information between a patient and a health care |
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4| professional and online exchange of health information |
| |
5| between health care professionals, but shall not |
| |
6| include the use of automated text messages or |
| |
7| automated mobile applications that serve as the sole |
| |
8| interaction between a patient and a health care |
| |
9| professional, |
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10| c. remote patient monitoring, and |
| |
11| d. other electronic means that support clinical health |
| |
12| care, professional consultation, patient and |
| |
13| professional health-related education, public health |
| |
14| and health administration; |
| |
15| 19. "Recovery and recovery support" means nonclinical services |
| |
16|that assist individuals and families to recover from alcohol or drug |
| |
17|problems. They include social support, linkage to and coordination |
| |
18|among allied service providers including but not limited to |
| |
19|transportation to and from treatment or employment, employment |
| |
20|services and job training, case management and individual services |
| |
21|coordination, life skills education, relapse prevention, housing |
| |
22|assistance, child care, and substance abuse education; |
| |
23| 20. "Assisted outpatient" means a person who: |
| |
24| |
| |
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1| a. is either currently under the care of a facility |
| |
2| certified by the Department of Mental Health and |
| |
3| Substance Abuse Services as a Community Mental Health |
| |
4| Center community mental health center, or is being |
| |
5| discharged from the custody of the Oklahoma Department |
| |
6| of Corrections, or is being discharged from a |
| |
7| residential placement by the Office of Juvenile |
| |
8| Affairs, |
| |
9| b. is suffering from a mental illness, |
| |
10| c. is unlikely to survive safely in the community |
| |
11| without supervision, based on a clinical |
| |
12| determination, |
| |
13| d. has a history of lack of compliance with treatment |
| |
14| for mental illness that has: |
| |
15| (1) prior to the filing of a petition, at least |
| |
16| twice within the last thirty-six (36) months been |
| |
17| a significant factor in necessitating |
| |
18| hospitalization or treatment in a hospital or |
| |
19| residential facility including admission to a |
| |
20| community-based structured crisis center as |
| |
21| certified by the Oklahoma Department of Mental |
| |
22| Health and Substance Abuse Services, or receipt |
| |
23| of services in a forensic or other mental health |
| |
24| unit of a correctional facility, or a specialized |
| |
Page 19
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1| treatment plan for treatment of mental illness in |
| |
2| a secure juvenile facility or placement in a |
| |
3| specialized residential program for juveniles, or |
| |
4| (2) prior to the filing of the petition, resulted in |
| |
5| one or more acts of serious violent behavior |
| |
6| toward self or others or threats of, or attempts |
| |
7| at, serious physical harm to self or others |
| |
8| within the last twenty-four (24) months, |
| |
9| e. is, as a result of his or her mental illness, |
| |
10| unlikely to voluntarily participate in outpatient |
| |
11| treatment that would enable him or her to live safely |
| |
12| in the community, |
| |
13| f. in view of his or her treatment history and current |
| |
14| behavior, is in need of assisted outpatient treatment |
| |
15| in order to prevent a relapse or deterioration which |
| |
16| would be likely to result in serious harm to the |
| |
17| person or persons as defined in this section, and |
| |
18| g. is likely to benefit from assisted outpatient |
| |
19| treatment; |
| |
20| 21. "Assisted outpatient treatment" means outpatient services |
| |
21|which have been ordered by the court pursuant to a treatment plan |
| |
22|approved by the court to treat an assisted outpatient's mental |
| |
23|illness and to assist the person in living and functioning in the |
| |
24|community, or to attempt to prevent a relapse or deterioration that |
| |
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1|may reasonably be predicted to result in suicide or the need for |
| |
2|hospitalization; and |
| |
3| 22. "Urgent recovery clinic" means a clinic that offers |
| |
4|voluntary services aimed at the assessment and immediate |
| |
5|stabilization of acute symptoms of mental illness, alcohol and other |
| |
6|drug abuse, and emotional distress. Unless the person receiving |
| |
7|treatment consents to a longer duration or unless the person is |
| |
8|placed into emergency detention under Sections 5-206 through 5-209 |
| |
9|of this title, no more than twenty-three (23) hours and fifty-nine |
| |
10|(59) minutes of services may be provided to a consumer during one |
| |
11|episode of care at an urgent recovery clinic. |
| |
12| SECTION 4. AMENDATORY 43A O.S. 2021, Section 7-101, is |
| |
13|amended to read as follows: |
| |
14| Section 7-101. A. The person in charge of a facility within |
| |
15|the Department of Mental Health and Substance Abuse Services shall |
| |
16|discharge a consumer or permit the consumer to leave the facility as |
| |
17|provided in this section. |
| |
18| B. The person in charge shall discharge a consumer: |
| |
19| 1. Who is no longer a risk to self or others as defined in |
| |
20|provided by Section 1-103 of this title; |
| |
21| 2. Who is capable of surviving safely in freedom alone or with |
| |
22|the help of other state agencies, private entities, or willing and |
| |
23|responsible family members or friends; provided, however, nothing in |
| |
24|this section or Section 7-102 of this title shall be construed as |
| |
Page 21
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1|requiring any state agency or private entity to provide services |
| |
2|except as voluntarily agreed to by the agency and consumer; and |
| |
3| 3. For whom a discharge plan has been developed pursuant to the |
| |
4|provisions of Section 7-102 of this title. |
| |
5| C. The person in charge may grant a convalescent leave or |
| |
6|visiting status to a consumer in accordance with policies prescribed |
| |
7|by the Commissioner of Mental Health and Substance Abuse Services. |
| |
8|The facility granting a convalescent leave or visiting status to a |
| |
9|consumer has no responsibility in returning the consumer to the |
| |
10|facility should such become necessary. A convalescent leave or |
| |
11|visiting status may be granted rather than a discharge when the |
| |
12|complete recovery of the consumer can be determined only by |
| |
13|permitting the consumer to leave the facility. The person in charge |
| |
14|shall discharge a consumer who has not returned to the facility |
| |
15|within twelve (12) months from the time a convalescent leave or |
| |
16|visiting status was granted. Any return from convalescent leave or |
| |
17|visiting status must be on a voluntary basis. |
| |
18| D. In accordance with policies prescribed by the Commissioner, |
| |
19|a person in charge may transfer a consumer to an outpatient or other |
| |
20|nonhospital status when, in the opinion of the person in charge, |
| |
21|such transfer will not be detrimental to the public welfare or |
| |
22|injurious to the consumer and the necessary treatment may be |
| |
23|continued on that basis; provided, however, that before transferring |
| |
24|the consumer, the person in charge shall ensure that appropriate |
| |
Page 22
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1|financial resources and appropriate services are available to |
| |
2|receive and care for such consumer after such transfer. |
| |
3| E. The person in charge of the facility shall notify the court |
| |
4|that committed the consumer that the consumer has been discharged. |
| |
5|Such notification shall be within forty-eight (48) hours after the |
| |
6|actual discharge. |
| |
7| F. If the consumer was committed after the dismissal of |
| |
8|criminal charges pursuant to the provisions of Section 1175.6a of |
| |
9|Title 22 of the Oklahoma Statutes: |
| |
10| 1. The Department shall continue all appropriate efforts to |
| |
11|restore the consumer to competency as defined by Section 1175.1 of |
| |
12|Title 22 of the Oklahoma Statutes during the consumer's commitment; |
| |
13| 2. The Department shall evaluate the consumer for competency |
| |
14|and issue a written report detailing the consumer's progress in |
| |
15|regaining competency to the attorney of the consumer, the district |
| |
16|court that dismissed the criminal action, and the district attorney |
| |
17|or other prosecuting agency that prosecuted the dismissed criminal |
| |
18|action at least once every year; |
| |
19| 3. The Department shall notify the consumer, the attorney of |
| |
20|the consumer, the prosecuting agency that prosecuted the dismissed |
| |
21|criminal action, and the district court that committed the consumer |
| |
22|no less than sixty (60) days prior to any discharge, leave, granting |
| |
23|of visiting status, or transfer of the consumer. Contemporaneously |
| |
24|with the notice, the Department shall provide a written report |
| |
Page 23
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1|evaluating the consumer's risk to self and others if released, the |
| |
2|consumer's status and progress in regaining competency, the |
| |
3|consumer's current and historical compliance with medication and |
| |
4|treatment, and any discharge plan developed for the consumer; |
| |
5| 4. The prosecuting agency that prosecuted the dismissed |
| |
6|criminal action may file with the district court that committed the |
| |
7|consumer an objection to the consumer's discharge, leave, granting |
| |
8|of visiting status, or transfer within thirty (30) days of receipt |
| |
9|of notice pursuant to paragraph 3 of this subsection. The |
| |
10|prosecuting agency shall, regardless of whether an objection is |
| |
11|filed, make reasonable efforts to notify all alleged victims in the |
| |
12|dismissed criminal action, or if an alleged victim is deceased, his |
| |
13|or her family, of the Department's planned discharge, leave, |
| |
14|granting of visiting status, or transfer of the consumer; |
| |
15| 5. The court shall hold a hearing within thirty (30) days of |
| |
16|the filing of an objection by the prosecuting agency to determine |
| |
17|whether the consumer's planned discharge, leave, granting of |
| |
18|visiting status, or transfer should occur. The consumer shall be |
| |
19|entitled to counsel at the hearing and in preparation for the |
| |
20|hearing. If the consumer does not have counsel, the court shall |
| |
21|appoint an attorney to represent the person at no cost if the person |
| |
22|is indigent and cannot afford an attorney. The hearing may be |
| |
23|continued either by agreement of the parties or upon good cause |
| |
24|shown. The prosecuting agency objecting to the consumer's |
| |
Page 24
___________________________________________________________________________
1|discharge, leave, granting of visiting status, or transfer shall |
| |
2|bear the burden of proof, by clear and convincing evidence, that the |
| |
3|planned discharge, leave, granting of visiting status, or transfer |
| |
4|should not be granted. In the event of a planned discharge pursuant |
| |
5|to subsection B of this section, the court shall determine whether |
| |
6|the criteria contained within subsection B of this section has been |
| |
7|met. In the event of a convalescent leave, granting of visiting |
| |
8|status, or transfer pursuant to subsection C or D of this section, |
| |
9|the court shall determine whether the applicable criteria have been |
| |
10|met and whether the leave, granting of visiting status, or transfer |
| |
11|is in the best interest of the consumer and in the best interest of |
| |
12|public safety. The court shall enter the appropriate order which |
| |
13|shall include written findings of fact and conclusions of law and |
| |
14|specify its effective date; |
| |
15| 6. An order entered pursuant to this subsection may be appealed |
| |
16|by either the consumer or the prosecuting agency to the Supreme |
| |
17|Court in accordance with the rules of the Supreme Court. The |
| |
18|district court, the Supreme Court, or the Court of Civil Appeals, if |
| |
19|assigned, may stay an order granting discharge, leave, visiting |
| |
20|status, or transfer pending appeal. On appeal, the district court's |
| |
21|findings of facts shall be reviewed for an abuse of discretion while |
| |
22|the legal conclusions of the district court shall be reviewed de |
| |
23|novo. If the prosecuting agency appeals an order granting the |
| |
24|consumer's discharge, leave, visiting status, or transfer and the |
| |
Page 25
___________________________________________________________________________
1|order has been stayed pending appeal, the appellate court shall |
| |
2|resolve the appeal in an expedited manner; and |
| |
3| 7. The provisions of this subsection shall apply to all persons |
| |
4|subject to such terms regardless of whether the person's criminal |
| |
5|charge or commitment occurred before or after the effective date of |
| |
6|this act. |
| |
7| G. The expense of returning a consumer from convalescent leave, |
| |
8|outpatient status or visiting status shall be that of: |
| |
9| 1. The party removing the consumer from the facility; or |
| |
10| 2. The Department. When it becomes necessary for the consumer |
| |
11|to be returned from the county where the consumer happens to be, the |
| |
12|Department shall reimburse the county pursuant to the provisions of |
| |
13|the State Travel Reimbursement Act. |
| |
14| G. H. In the event authorization is necessary to accomplish the |
| |
15|return of the consumer to the facility, such authority is hereby |
| |
16|vested in the judge of the district court in the county where the |
| |
17|consumer is located. Upon receipt of notice that the consumer needs |
| |
18|to be returned to the facility, the judge shall cause the consumer |
| |
19|to be brought before the court by issuance of a citation directed to |
| |
20|the consumer to appear and show cause why the consumer should not be |
| |
21|returned to the facility. The judge shall, if clear and convincing |
| |
22|evidence is presented by testimony under oath that the consumer |
| |
23|should be returned to the facility, enter an order returning the |
| |
24|consumer. If there is a lack of clear and convincing evidence |
| |
Page 26
___________________________________________________________________________
1|showing the necessity of such return, the consumer shall immediately |
| |
2|be released. Law enforcement officers are authorized to take into |
| |
3|custody, detain and transport a consumer pursuant to a citation or |
| |
4|an order of the judge of the district court. |
| |
5| H. I. An attending physician of any consumer admitted to a |
| |
6|private facility may discharge a consumer or permit the consumer to |
| |
7|leave the facility subject to the same provisions applicable to the |
| |
8|discharge or release of a consumer by the person in charge of a |
| |
9|state facility. |
| |
10| SECTION 5. This act shall become effective November 1, 2025. |
| |
11| Passed the Senate the 12th day of March, 2025. |
| |
12| |
| |
13| |
| Presiding Officer of the Senate |
14| |
| |
15| Passed the House of Representatives the ____ day of __________, |
| |
16|2025. |
| |
17| |
| |
18| |
| Presiding Officer of the House |
19| of Representatives |
| |
20| |
| |
21| |
| |
22| |
| |
23| |
| |
24| |
| |
Page 27
