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90_SB0851enr
725 ILCS 5/102-22 new
725 ILCS 5/104-31 from Ch. 38, par. 104-31
730 ILCS 5/5-2-4 from Ch. 38, par. 1005-2-4
Amends the Code of Criminal Procedure of 1963 and the
Unified Code of Corrections. Provides that a defendant who
has been placed in a secure setting of the Department of
Mental Health and Developmental Disabilities (and, on and
after July 1, 1997, the Department of Human Services) and who
is being transported to court hearings or other appointments
off facility grounds by Department personnel may be placed in
security devices or otherwise secured. In provisions
relating to the treatment of unfit defendants and those found
not guilty by reason of insanity, defines "facility director"
as the chief officer of a mental health or developmental
facility (or a designee) or the supervisor of a program of
treatment or habilitation (or a designee). Effective
immediately.
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SB851 Enrolled LRB9002179WHmg
1 AN ACT concerning mental health, amending named Acts.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Code of Criminal Procedure of 1963 is
5 amended by adding Section 102-22 and changing Section 104-31
6 as follows:
7 (725 ILCS 5/102-22 new)
8 Sec. 102-22. "Facility director", for the purposes of
9 Article 104, means the chief officer of a mental health or
10 developmental disabilities facility or his or her designee or
11 the supervisor of a program of treatment or habilitation or
12 his or her designee. "Designee" may include a physician,
13 clinical psychologist, social worker, or nurse.
14 (725 ILCS 5/104-31) (from Ch. 38, par. 104-31)
15 (Text of Section in effect until July 1, 1997)
16 Sec. 104-31. No defendant placed in a secure setting of
17 the Department of Mental Health and Developmental
18 Disabilities pursuant to the provisions of Sections 104-17,
19 104-25, or 104-26 shall be permitted outside the facility's
20 housing unit unless escorted or accompanied by personnel of
21 the Department of Mental Health and Developmental
22 Disabilities. Any defendant placed in a secure setting
23 pursuant to this Section, transported to court hearings or
24 other necessary appointments off facility grounds by
25 personnel of the Department of Mental Health and
26 Developmental Disabilities, may be placed in security devices
27 or otherwise secured during the period of transportation to
28 assure secure transport of the defendant and the safety of
29 Department of Mental Health and Developmental Disabilities
30 personnel and others. These security measures shall not
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1 constitute restraint as defined in the Mental Health and
2 Developmental Disabilities Code. Nor shall such defendant be
3 permitted any off-grounds privileges, either with or without
4 escort by personnel of the Department of Mental Health and
5 Developmental Disabilities, or any unsupervised on-ground
6 privileges, unless such off-grounds or unsupervised
7 on-grounds privileges have been approved by specific court
8 order, which order may include such conditions on the
9 defendant as the court may deem appropriate and necessary to
10 reasonably assure the defendant's satisfactory progress in
11 treatment and the safety of the defendant or others.
12 (Source: P.A. 84-1308.)
13 (Text of Section taking effect July 1, 1997)
14 Sec. 104-31. No defendant placed in a secure setting of
15 the Department of Human Services pursuant to the provisions
16 of Sections 104-17, 104-25, or 104-26 shall be permitted
17 outside the facility's housing unit unless escorted or
18 accompanied by personnel of the Department of Human Services.
19 Any defendant placed in a secure setting pursuant to this
20 Section, transported to court hearings or other necessary
21 appointments off facility grounds by personnel of the
22 Department of Human Services, may be placed in security
23 devices or otherwise secured during the period of
24 transportation to assure secure transport of the defendant
25 and the safety of Department of Human Services personnel and
26 others. These security measures shall not constitute
27 restraint as defined in the Mental Health and Developmental
28 Disabilities Code. Nor shall such defendant be permitted any
29 off-grounds privileges, either with or without escort by
30 personnel of the Department of Human Services, or any
31 unsupervised on-ground privileges, unless such off-grounds or
32 unsupervised on-grounds privileges have been approved by
33 specific court order, which order may include such conditions
34 on the defendant as the court may deem appropriate and
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1 necessary to reasonably assure the defendant's satisfactory
2 progress in treatment and the safety of the defendant or
3 others.
4 (Source: P.A. 89-507, eff. 7-1-97.)
5 Section 10. The Unified Code of Corrections is amended
6 by changing Section 5-2-4 as follows:
7 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
8 (Text of Section in effect until July 1, 1997)
9 Sec. 5-2-4. Proceedings after Acquittal by Reason of
10 Insanity.
11 (a) After a finding or verdict of not guilty by reason
12 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
13 of Criminal Procedure of 1963, the defendant shall be ordered
14 to the Department of Mental Health and Developmental
15 Disabilities for an evaluation as to whether he is subject to
16 involuntary admission or in need of mental health services.
17 The order shall specify whether the evaluation shall be
18 conducted on an inpatient or outpatient basis. If the
19 evaluation is to be conducted on an inpatient basis, the
20 defendant shall be placed in a secure setting unless the
21 Court determines that there are compelling reasons why such
22 placement is not necessary. After the evaluation and during
23 the period of time required to determine the appropriate
24 placement, the defendant shall remain in jail. Upon
25 completion of the placement process the sheriff shall be
26 notified and shall transport the defendant to the designated
27 facility.
28 The Department shall provide the Court with a report of
29 its evaluation within 30 days of the date of this order. The
30 Court shall hold a hearing as provided under the Mental
31 Health and Developmental Disabilities Code to determine if
32 the individual is: (a) subject to involuntary admission; (b)
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1 in need of mental health services on an inpatient basis; (c)
2 in need of mental health services on an outpatient basis; (d)
3 a person not in need of mental health services. The Court
4 shall enter its findings.
5 If the defendant is found to be subject to involuntary
6 admission or in need of mental health services on an
7 inpatient care basis, the Court shall order the defendant to
8 the Department of Mental Health and Developmental
9 Disabilities. The defendant shall be placed in a secure
10 setting unless the Court determines that there are compelling
11 reasons why such placement is not necessary. Such defendants
12 placed in a secure setting shall not be permitted outside the
13 facility's housing unit unless escorted or accompanied by
14 personnel of the Department of Mental Health and
15 Developmental Disabilities or with the prior approval of the
16 Court for unsupervised on-grounds privileges as provided
17 herein. Any defendant placed in a secure setting pursuant to
18 this Section, transported to court hearings or other
19 necessary appointments off facility grounds by personnel of
20 the Department of Mental Health and Developmental
21 Disabilities, may be placed in security devices or otherwise
22 secured during the period of transportation to assure secure
23 transport of the defendant and the safety of Department of
24 Mental Health and Developmental Disabilities personnel and
25 others. These security measures shall not constitute
26 restraint as defined in the Mental Health and Developmental
27 Disabilities Code. If the defendant is found to be in need
28 of mental health services, but not on an inpatient care
29 basis, the Court shall conditionally release the defendant,
30 under such conditions as set forth in this Section as will
31 reasonably assure the defendant's satisfactory progress in
32 treatment or rehabilitation and the safety of the defendant
33 or others. If the Court finds the person not in need of
34 mental health services, then the Court shall order the
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1 defendant discharged from custody.
2 (1) Definitions: For the purposes of this Section:
3 (A) "Subject to involuntary admission" means: A
4 defendant has been found not guilty by reason of
5 insanity; and
6 (i) who is mentally ill and who because of his
7 mental illness is reasonably expected to inflict
8 serious physical harm upon himself or another in the
9 near future; or
10 (ii) who is mentally ill and who because of
11 his illness is unable to provide for his basic
12 physical needs so as to guard himself from serious
13 harm.
14 (B) "In need of mental health services on an
15 inpatient basis" means: a defendant who has been found
16 not guilty by reason of insanity who is not subject to
17 involuntary admission but who is reasonably expected to
18 inflict serious physical harm upon himself or another and
19 who would benefit from inpatient care or is in need of
20 inpatient care.
21 (C) "In need of mental health services on an
22 outpatient basis" means: a defendant who has been found
23 not guilty by reason of insanity who is not subject to
24 involuntary admission or in need of mental health
25 services on an inpatient basis, but is in need of
26 outpatient care, drug and/or alcohol rehabilitation
27 programs, community adjustment programs, individual,
28 group, or family therapy, or chemotherapy.
29 (D) "Conditional Release" means: the release from
30 the custody of either the Department of Mental Health and
31 Developmental Disabilities or the custody of the Court of
32 a person who has been found not guilty by reason of
33 insanity under such conditions as the court may impose
34 which reasonably assure the defendant's satisfactory
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1 progress in treatment or habilitation and the safety of
2 the defendant and others. The Court shall consider such
3 terms and conditions which may include, but need not be
4 limited to, outpatient care, alcoholic and drug
5 rehabilitation programs, community adjustment programs,
6 individual, group, family, and chemotherapy, periodic
7 checks with the legal authorities and/or the Department
8 of Mental Health and Developmental Disabilities. The
9 person or facility rendering the outpatient care shall be
10 required to periodically report to the Court on the
11 progress of the Defendant. Such conditional release shall
12 be for a period of five years, unless the defendant, the
13 person or facility rendering the treatment, therapy,
14 program or outpatient care, or the State's attorney
15 petitions the Court for an extension of the conditional
16 release period for an additional three years. Upon
17 receipt of such a petition, the Court shall hold a
18 hearing consistent with the provisions of this paragraph
19 (a) and paragraph (f) of this Section, shall determine
20 whether the defendant should continue to be subject to
21 the terms of conditional release, and shall enter an
22 order either extending the defendant's period of
23 conditional release for a single additional three year
24 period or discharging the defendant. In no event shall
25 the defendant's period of conditional release exceed
26 eight years. These provisions for extension of
27 conditional release shall only apply to defendants
28 conditionally released on or after July 1, 1979. However
29 the extension provisions of this amendatory Act of 1984
30 apply only to defendants charged with a forcible felony.
31 (E) "Facility director" means the chief officer of
32 a mental health or developmental disabilities facility or
33 his or her designee or the supervisor of a program of
34 treatment or habilitation or his or her designee.
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1 "Designee" may include a physician, clinical
2 psychologist, social worker, or nurse.
3 (b) If the Court finds the defendant subject to
4 involuntary admission or in need of mental health services on
5 an inpatient basis, the admission, detention, care, treatment
6 or habilitation, review proceedings, and discharge of the
7 defendant after such order shall be under the Mental Health
8 and Developmental Disabilities Code, except that the initial
9 order for admission of a defendant acquitted of a felony by
10 reason of insanity shall be for an indefinite period of time.
11 Such period of commitment shall not exceed the maximum length
12 of time that the defendant would have been required to serve,
13 less credit for good behavior, before becoming eligible for
14 release had he been convicted of and received the maximum
15 sentence for the most serious crime for which he has been
16 acquitted by reason of insanity. The Court shall determine
17 the maximum period of commitment by an appropriate order.
18 During this period of time, the defendant shall not be
19 permitted to be in the community in any manner, including but
20 not limited to off-grounds privileges, with or without escort
21 by personnel of the Department of Mental Health and
22 Developmental Disabilities, unsupervised on-grounds
23 privileges, discharge or conditional or temporary release,
24 except by a plan as provided in this Section. In no event
25 shall a defendant's continued unauthorized absence be a basis
26 for discharge. Not more than 30 days after admission and
27 every 60 days thereafter so long as the initial order remains
28 in effect, the facility director shall file a treatment plan
29 with the court. Such plan shall include an evaluation of the
30 defendant's progress and the extent to which he is benefiting
31 from treatment. Such plan may also include unsupervised
32 on-grounds privileges, off-grounds privileges (with or
33 without escort by personnel of the Department of Mental
34 Health and Developmental Disabilities), home visits and
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1 participation in work programs, but only where such
2 privileges have been approved by specific court order, which
3 order may include such conditions on the defendant as the
4 Court may deem appropriate and necessary to reasonably assure
5 the defendant's satisfactory progress in treatment and the
6 safety of the defendant and others.
7 (c) Every defendant acquitted of a felony by reason of
8 insanity and subsequently found to be subject to involuntary
9 admission or in need of mental health services shall be
10 represented by counsel in all proceedings under this Section
11 and under the Mental Health and Developmental Disabilities
12 Code.
13 (1) The court shall appoint as counsel the public
14 defender or an attorney licensed by this State.
15 (2) Upon filing with the court of a verified
16 statement of legal services rendered by the private
17 attorney appointed pursuant to paragraph (1) of this
18 subsection, the court shall determine a reasonable fee
19 for such services. If the defendant is unable to pay the
20 fee, the court shall enter an order upon the State to pay
21 the entire fee or such amount as the defendant is unable
22 to pay from funds appropriated by the General Assembly
23 for that purpose.
24 (d) When the facility director determines that:
25 (1) the defendant is no longer subject to
26 involuntary admission or in need of mental health
27 services on an inpatient basis; and
28 (2) the defendant may be conditionally released
29 because he or she is still in need of mental health
30 services or that the defendant may be discharged as not
31 in need of any mental health services; or
32 (3) the defendant no longer requires placement in a
33 secure setting;
34 the facility director shall give written notice to the Court,
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1 State's Attorney and defense attorney. Such notice shall set
2 forth in detail the basis for the recommendation of the
3 facility director, and specify clearly the recommendations,
4 if any, of the facility director, concerning conditional
5 release. Within 30 days of the notification by the facility
6 director, the Court shall set a hearing and make a finding as
7 to whether the defendant is:
8 (i) subject to involuntary admission; or
9 (ii) in need of mental health services in the form
10 of inpatient care; or
11 (iii) in need of mental health services but not
12 subject to involuntary admission or inpatient care; or
13 (iv) no longer in need of mental health services;
14 or
15 (v) no longer requires placement in a secure
16 setting.
17 Upon finding by the Court, the Court shall enter its
18 findings and such appropriate order as provided in subsection
19 (a) of this Section.
20 (e) A defendant admitted pursuant to this Section, or
21 any person on his behalf, may file a petition for transfer
22 to a non-secure setting within the Department of Mental
23 Health and Developmental Disabilities or discharge or
24 conditional release under the standards of this Section in
25 the court which rendered the verdict. Upon receipt of a
26 petition for transfer to a non-secure setting or discharge or
27 conditional release, the court shall set a hearing to be held
28 within 120 days. Thereafter, no new petition may be filed
29 for 120 days without leave of the court.
30 (f) The court shall direct that notice of the time and
31 place of the hearing be served upon the defendant, the
32 facility director, the State's Attorney, and the defendant's
33 attorney. If requested by either the State or the defense or
34 if the Court feels it is appropriate, an impartial
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1 examination of the defendant by a psychiatrist or clinical
2 psychologist as defined in Section 1-103 of the Mental Health
3 and Developmental Disabilities Code who is not in the employ
4 of the Department of Mental Health and Developmental
5 Disabilities shall be ordered, and the report considered at
6 the time of the hearing.
7 (g) The findings of the court shall be established by
8 clear and convincing evidence. The burden of proof and the
9 burden of going forth with the evidence rest with the State
10 when a hearing is held to review the determination of the
11 facility director that the defendant should be transferred to
12 a non-secure setting, discharged or conditionally released.
13 The burden of proof and the burden of going forth with the
14 evidence rest on the defendant when a hearing is held to
15 review a petition filed by or on behalf of such defendant.
16 The evidence shall be presented in open court with the right
17 of confrontation and cross-examination.
18 (h) If the court finds that the defendant is no longer
19 in need of mental health services it shall order the facility
20 director to discharge the defendant. If the Court finds that
21 the defendant is in need of mental health services, and no
22 longer in need of inpatient care, it shall order the facility
23 director to release the defendant under such conditions as
24 the Court deems appropriate and as provided by this Section.
25 Such conditional release shall be imposed for a period of
26 five years and shall be subject to later modification by the
27 court as provided by this Section. If the court finds that
28 the defendant is subject to involuntary admission or in need
29 of mental health services on an inpatient basis, it shall
30 order the facility director not to discharge or release the
31 defendant in accordance with paragraph (b) of this Section.
32 (i) If within the period of the defendant's conditional
33 release, the court determines, after hearing evidence, that
34 the defendant has not fulfilled the conditions of release,
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1 the court shall order a hearing to be held consistent with
2 the provisions of paragraph (f) and (g) of this section. At
3 such hearing, if the court finds that the defendant is
4 subject to involuntary admission or in need of mental health
5 services on an inpatient basis, it shall enter an order
6 remanding him or her to the Department of Mental Health and
7 Developmental Disabilities or other facility. If the
8 defendant is remanded to the Department of Mental Health and
9 Developmental Disabilities, he or she shall be placed in a
10 secure setting unless the court determines that there are
11 compelling reasons that such placement is not necessary. If
12 the court finds that the defendant continues to be in need
13 of mental health services but not on an inpatient basis, it
14 may modify the conditions of the original release in order to
15 reasonably assure the defendant's satisfactory progress in
16 treatment and his or her safety and the safety of others. In
17 no event shall such conditional release be longer than eight
18 years. Nothing in this Section shall limit a court's contempt
19 powers or any other powers of a court.
20 (j) An order of admission under this Section does not
21 affect the remedy of habeas corpus.
22 (k) In the event of a conflict between this Section and
23 the Mental Health and Developmental Disabilities Code or the
24 Mental Health and Developmental Disabilities Confidentiality
25 Act, the provisions of this Section shall govern.
26 (l) This amendatory Act shall apply to all persons who
27 have been found not guilty by reason of insanity and who are
28 presently committed to the Department of Mental Health and
29 Developmental Disabilities.
30 (m) The Clerk of the court shall, after the entry of an
31 order of transfer to a non-secure setting of the Department
32 of Mental Health and Developmental Disabilities or discharge
33 or conditional release, transmit a certified copy of the
34 order to the Department of Mental Health and Developmental
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1 Disabilities, and the sheriff of the county from which the
2 defendant was admitted. In cases where the arrest of the
3 defendant or the commission of the offense took place in any
4 municipality with a population of more than 25,000 persons,
5 the Clerk of the court shall also transmit a certified copy
6 of the order of discharge or conditional release to the
7 proper law enforcement agency for said municipality provided
8 the municipality has requested such notice in writing.
9 (Source: P.A. 89-404, eff. 8-20-95.)
10 (Text of Section taking effect July 1, 1997)
11 Sec. 5-2-4. Proceedings after Acquittal by Reason of
12 Insanity.
13 (a) After a finding or verdict of not guilty by reason
14 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
15 of Criminal Procedure of 1963, the defendant shall be ordered
16 to the Department of Human Services for an evaluation as to
17 whether he is subject to involuntary admission or in need of
18 mental health services. The order shall specify whether the
19 evaluation shall be conducted on an inpatient or outpatient
20 basis. If the evaluation is to be conducted on an inpatient
21 basis, the defendant shall be placed in a secure setting
22 unless the Court determines that there are compelling reasons
23 why such placement is not necessary. After the evaluation and
24 during the period of time required to determine the
25 appropriate placement, the defendant shall remain in jail.
26 Upon completion of the placement process the sheriff shall
27 be notified and shall transport the defendant to the
28 designated facility.
29 The Department shall provide the Court with a report of
30 its evaluation within 30 days of the date of this order. The
31 Court shall hold a hearing as provided under the Mental
32 Health and Developmental Disabilities Code to determine if
33 the individual is: (a) subject to involuntary admission; (b)
34 in need of mental health services on an inpatient basis; (c)
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1 in need of mental health services on an outpatient basis; (d)
2 a person not in need of mental health services. The Court
3 shall enter its findings.
4 If the defendant is found to be subject to involuntary
5 admission or in need of mental health services on an
6 inpatient care basis, the Court shall order the defendant to
7 the Department of Human Services. The defendant shall be
8 placed in a secure setting unless the Court determines that
9 there are compelling reasons why such placement is not
10 necessary. Such defendants placed in a secure setting shall
11 not be permitted outside the facility's housing unit unless
12 escorted or accompanied by personnel of the Department of
13 Human Services or with the prior approval of the Court for
14 unsupervised on-grounds privileges as provided herein. Any
15 defendant placed in a secure setting pursuant to this
16 Section, transported to court hearings or other necessary
17 appointments off facility grounds by personnel of the
18 Department of Human Services, may be placed in security
19 devices or otherwise secured during the period of
20 transportation to assure secure transport of the defendant
21 and the safety of Department of Human Services personnel and
22 others. These security measures shall not constitute
23 restraint as defined in the Mental Health and Developmental
24 Disabilities Code. If the defendant is found to be in need
25 of mental health services, but not on an inpatient care
26 basis, the Court shall conditionally release the defendant,
27 under such conditions as set forth in this Section as will
28 reasonably assure the defendant's satisfactory progress in
29 treatment or rehabilitation and the safety of the defendant
30 or others. If the Court finds the person not in need of
31 mental health services, then the Court shall order the
32 defendant discharged from custody.
33 (1) Definitions: For the purposes of this Section:
34 (A) "Subject to involuntary admission" means: A
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1 defendant has been found not guilty by reason of
2 insanity; and
3 (i) who is mentally ill and who because of his
4 mental illness is reasonably expected to inflict
5 serious physical harm upon himself or another in the
6 near future; or
7 (ii) who is mentally ill and who because of
8 his illness is unable to provide for his basic
9 physical needs so as to guard himself from serious
10 harm.
11 (B) "In need of mental health services on an
12 inpatient basis" means: a defendant who has been found
13 not guilty by reason of insanity who is not subject to
14 involuntary admission but who is reasonably expected to
15 inflict serious physical harm upon himself or another and
16 who would benefit from inpatient care or is in need of
17 inpatient care.
18 (C) "In need of mental health services on an
19 outpatient basis" means: a defendant who has been found
20 not guilty by reason of insanity who is not subject to
21 involuntary admission or in need of mental health
22 services on an inpatient basis, but is in need of
23 outpatient care, drug and/or alcohol rehabilitation
24 programs, community adjustment programs, individual,
25 group, or family therapy, or chemotherapy.
26 (D) "Conditional Release" means: the release from
27 either the custody of the Department of Human Services or
28 the custody of the Court of a person who has been found
29 not guilty by reason of insanity under such conditions as
30 the court may impose which reasonably assure the
31 defendant's satisfactory progress in treatment or
32 habilitation and the safety of the defendant and others.
33 The Court shall consider such terms and conditions which
34 may include, but need not be limited to, outpatient care,
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1 alcoholic and drug rehabilitation programs, community
2 adjustment programs, individual, group, family, and
3 chemotherapy, periodic checks with the legal authorities
4 and/or the Department of Human Services. The person or
5 facility rendering the outpatient care shall be required
6 to periodically report to the Court on the progress of
7 the Defendant. Such conditional release shall be for a
8 period of five years, unless the defendant, the person or
9 facility rendering the treatment, therapy, program or
10 outpatient care, or the State's attorney petitions the
11 Court for an extension of the conditional release period
12 for an additional three years. Upon receipt of such a
13 petition, the Court shall hold a hearing consistent with
14 the provisions of this paragraph (a) and paragraph (f) of
15 this Section, shall determine whether the defendant
16 should continue to be subject to the terms of conditional
17 release, and shall enter an order either extending the
18 defendant's period of conditional release for a single
19 additional three year period or discharging the
20 defendant. In no event shall the defendant's period of
21 conditional release exceed eight years. These provisions
22 for extension of conditional release shall only apply to
23 defendants conditionally released on or after July 1,
24 1979. However the extension provisions of this amendatory
25 Act of 1984 apply only to defendants charged with a
26 forcible felony.
27 (E) "Facility director" means the chief officer of
28 a mental health or developmental disabilities facility or
29 his or her designee or the supervisor of a program of
30 treatment or habilitation or his or her designee.
31 "Designee" may include a physician, clinical
32 psychologist, social worker, or nurse.
33 (b) If the Court finds the defendant subject to
34 involuntary admission or in need of mental health services on
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1 an inpatient basis, the admission, detention, care, treatment
2 or habilitation, review proceedings, and discharge of the
3 defendant after such order shall be under the Mental Health
4 and Developmental Disabilities Code, except that the initial
5 order for admission of a defendant acquitted of a felony by
6 reason of insanity shall be for an indefinite period of time.
7 Such period of commitment shall not exceed the maximum length
8 of time that the defendant would have been required to serve,
9 less credit for good behavior, before becoming eligible for
10 release had he been convicted of and received the maximum
11 sentence for the most serious crime for which he has been
12 acquitted by reason of insanity. The Court shall determine
13 the maximum period of commitment by an appropriate order.
14 During this period of time, the defendant shall not be
15 permitted to be in the community in any manner, including but
16 not limited to off-grounds privileges, with or without escort
17 by personnel of the Department of Human Services,
18 unsupervised on-grounds privileges, discharge or conditional
19 or temporary release, except by a plan as provided in this
20 Section. In no event shall a defendant's continued
21 unauthorized absence be a basis for discharge. Not more than
22 30 days after admission and every 60 days thereafter so long
23 as the initial order remains in effect, the facility director
24 shall file a treatment plan with the court. Such plan shall
25 include an evaluation of the defendant's progress and the
26 extent to which he is benefiting from treatment. Such plan
27 may also include unsupervised on-grounds privileges,
28 off-grounds privileges (with or without escort by personnel
29 of the Department of Human Services), home visits and
30 participation in work programs, but only where such
31 privileges have been approved by specific court order, which
32 order may include such conditions on the defendant as the
33 Court may deem appropriate and necessary to reasonably assure
34 the defendant's satisfactory progress in treatment and the
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1 safety of the defendant and others.
2 (c) Every defendant acquitted of a felony by reason of
3 insanity and subsequently found to be subject to involuntary
4 admission or in need of mental health services shall be
5 represented by counsel in all proceedings under this Section
6 and under the Mental Health and Developmental Disabilities
7 Code.
8 (1) The court shall appoint as counsel the public
9 defender or an attorney licensed by this State.
10 (2) Upon filing with the court of a verified
11 statement of legal services rendered by the private
12 attorney appointed pursuant to paragraph (1) of this
13 subsection, the court shall determine a reasonable fee
14 for such services. If the defendant is unable to pay the
15 fee, the court shall enter an order upon the State to pay
16 the entire fee or such amount as the defendant is unable
17 to pay from funds appropriated by the General Assembly
18 for that purpose.
19 (d) When the facility director determines that:
20 (1) the defendant is no longer subject to
21 involuntary admission or in need of mental health
22 services on an inpatient basis; and
23 (2) the defendant may be conditionally released
24 because he or she is still in need of mental health
25 services or that the defendant may be discharged as not
26 in need of any mental health services; or
27 (3) the defendant no longer requires placement in a
28 secure setting;
29 the facility director shall give written notice to the Court,
30 State's Attorney and defense attorney. Such notice shall set
31 forth in detail the basis for the recommendation of the
32 facility director, and specify clearly the recommendations,
33 if any, of the facility director, concerning conditional
34 release. Within 30 days of the notification by the facility
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1 director, the Court shall set a hearing and make a finding as
2 to whether the defendant is:
3 (i) subject to involuntary admission; or
4 (ii) in need of mental health services in the form
5 of inpatient care; or
6 (iii) in need of mental health services but not
7 subject to involuntary admission or inpatient care; or
8 (iv) no longer in need of mental health services;
9 or
10 (v) no longer requires placement in a secure
11 setting.
12 Upon finding by the Court, the Court shall enter its
13 findings and such appropriate order as provided in subsection
14 (a) of this Section.
15 (e) A defendant admitted pursuant to this Section, or
16 any person on his behalf, may file a petition for transfer
17 to a non-secure setting within the Department of Human
18 Services or discharge or conditional release under the
19 standards of this Section in the court which rendered the
20 verdict. Upon receipt of a petition for transfer to a
21 non-secure setting or discharge or conditional release, the
22 court shall set a hearing to be held within 120 days.
23 Thereafter, no new petition may be filed for 120 days without
24 leave of the court.
25 (f) The court shall direct that notice of the time and
26 place of the hearing be served upon the defendant, the
27 facility director, the State's Attorney, and the defendant's
28 attorney. If requested by either the State or the defense or
29 if the Court feels it is appropriate, an impartial
30 examination of the defendant by a psychiatrist or clinical
31 psychologist as defined in Section 1-103 of the Mental Health
32 and Developmental Disabilities Code who is not in the employ
33 of the Department of Human Services shall be ordered, and the
34 report considered at the time of the hearing.
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1 (g) The findings of the court shall be established by
2 clear and convincing evidence. The burden of proof and the
3 burden of going forth with the evidence rest with the State
4 when a hearing is held to review the determination of the
5 facility director that the defendant should be transferred to
6 a non-secure setting, discharged or conditionally released.
7 The burden of proof and the burden of going forth with the
8 evidence rest on the defendant when a hearing is held to
9 review a petition filed by or on behalf of such defendant.
10 The evidence shall be presented in open court with the right
11 of confrontation and cross-examination.
12 (h) If the court finds that the defendant is no longer
13 in need of mental health services it shall order the facility
14 director to discharge the defendant. If the Court finds that
15 the defendant is in need of mental health services, and no
16 longer in need of inpatient care, it shall order the facility
17 director to release the defendant under such conditions as
18 the Court deems appropriate and as provided by this Section.
19 Such conditional release shall be imposed for a period of
20 five years and shall be subject to later modification by the
21 court as provided by this Section. If the court finds that
22 the defendant is subject to involuntary admission or in need
23 of mental health services on an inpatient basis, it shall
24 order the facility director not to discharge or release the
25 defendant in accordance with paragraph (b) of this Section.
26 (i) If within the period of the defendant's conditional
27 release, the court determines, after hearing evidence, that
28 the defendant has not fulfilled the conditions of release,
29 the court shall order a hearing to be held consistent with
30 the provisions of paragraph (f) and (g) of this section. At
31 such hearing, if the court finds that the defendant is
32 subject to involuntary admission or in need of mental health
33 services on an inpatient basis, it shall enter an order
34 remanding him or her to the Department of Human Services or
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1 other facility. If the defendant is remanded to the
2 Department of Human Services, he or she shall be placed in a
3 secure setting unless the court determines that there are
4 compelling reasons that such placement is not necessary. If
5 the court finds that the defendant continues to be in need
6 of mental health services but not on an inpatient basis, it
7 may modify the conditions of the original release in order to
8 reasonably assure the defendant's satisfactory progress in
9 treatment and his or her safety and the safety of others. In
10 no event shall such conditional release be longer than eight
11 years. Nothing in this Section shall limit a court's contempt
12 powers or any other powers of a court.
13 (j) An order of admission under this Section does not
14 affect the remedy of habeas corpus.
15 (k) In the event of a conflict between this Section and
16 the Mental Health and Developmental Disabilities Code or the
17 Mental Health and Developmental Disabilities Confidentiality
18 Act, the provisions of this Section shall govern.
19 (l) This amendatory Act shall apply to all persons who
20 have been found not guilty by reason of insanity and who are
21 presently committed to the Department of Mental Health and
22 Developmental Disabilities (now the Department of Human
23 Services).
24 (m) The Clerk of the court shall, after the entry of an
25 order of transfer to a non-secure setting of the Department
26 of Human Services or discharge or conditional release,
27 transmit a certified copy of the order to the Department of
28 Human Services, and the sheriff of the county from which the
29 defendant was admitted. In cases where the arrest of the
30 defendant or the commission of the offense took place in any
31 municipality with a population of more than 25,000 persons,
32 the Clerk of the court shall also transmit a certified copy
33 of the order of discharge or conditional release to the
34 proper law enforcement agency for said municipality provided
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1 the municipality has requested such notice in writing.
2 (Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97.)
3 Section 99. Effective date. This Act takes effect upon
4 becoming law.