(1) (a) (I) The
court shall order that the competency evaluation be conducted on an outpatient
basis or, if the defendant is unable to post the monetary condition of bond or is
ineligible to be released on bond, at the place where the defendant is in-custody,
except as provided in subsection (1)(b) of this section. If the department conducts
the evaluation on an in-custody basis, the department shall begin the evaluation as
soon as practicable after the department's receipt of a court order directing the
evaluation. If the evaluation is conducted on an in-custody basis, the department
shall complete the evaluation no later than twenty-one days after receipt of the
order and the collateral materials. If the evaluation is conducted on an out-of-custody basis, the department shall complete the evaluation within forty-two days
after receipt of the order and collateral materials, unless the court extends the time
upon a showing of good cause.
(II) At the time any evaluation is ordered, the court shall order that the
collateral materials be transmitted to the department within twenty-four hours
after the order by the appropriate party with a certificate of service of the materials
provided to the court and other necessary parties by the party ordered to transmit
the collateral materials.
(III) The court shall determine the type of bond and the conditions of release
after consideration of the presumptions and factors enumerated in article 4 of this
title 16, which include consideration of the information received from any pretrial
services program pursuant to section 16-4-106 and any information provided by the
bridges court liaison hired or contracted pursuant to article 95 of title 13. As a
condition of any bond, the court shall require the defendant's cooperation with the
competency evaluation on an outpatient and out-of-custody basis. In setting the
bond, the court shall not consider the need for the defendant to receive an
evaluation pursuant to this article 8.5 as a factor in determining any monetary
condition of bond.
(IV) Nothing in this subsection (1)(a) limits the availability of a court-ordered
evaluation for a person with a mental health disorder or invokes the procedure for
an emergency mental health hold set forth in section 27-65-106.
(b) Notwithstanding the provisions of subsection (1)(a) of this section, the
court may order the defendant placed in the department's custody for the time
necessary to conduct the inpatient competency evaluation if:
(I) The department provides a recommendation to the court, after
consultation with the defendant and review of any clinical or collateral materials,
that conducting the competency evaluation on an inpatient basis is clinically
appropriate;
(II) The court finds that the competency evaluation and report provided by
the department is insufficient because it does not meet statutory requirements
pursuant to subsection (5) of this section or that two or more conflicting
competency evaluations and reports have been completed; or
(III) Extraordinary circumstances relating to the case or the defendant make
conducting the competency evaluation on an inpatient basis necessary and
appropriate.
(IV) and (V) (Deleted by amendment, L. 2019.)
(b.3) Upon entry of a court order pursuant to subsection (1)(b) of this section,
the department has the same authority with respect to custody as provided for in
section 16-8-105.5 (4).
(b.5) When the court orders an inpatient evaluation, the court shall advise
the defendant that restoration services may commence immediately if the
evaluation concludes that the defendant is incompetent to proceed, unless either
party objects at the time of the advisement, or within seventy-two hours after the
receipt of the written evaluation submitted to the court. The court shall record any
objection to the order of commitment to the department.
(b.6) If the evaluator concludes that the defendant is incompetent to
proceed and that inpatient restoration services are not clinically appropriate, the
department shall detail the outpatient and out-of-custody restoration services
available to the defendant.
(b.7) When the court orders an inpatient evaluation, the defendant must be
offered admission to the hospital or other inpatient program within fourteen days
after receipt of the court order and collateral materials. The court shall review the
case in twenty-one days to determine if transportation to the hospital or program
has been completed or if further orders are necessary.
(c) (Deleted by amendment, L. 2019.)
(d) If a defendant is in the department's custody for purposes of the
competency evaluation ordered pursuant to this article 8.5 and the defendant has
completed the competency evaluation and the evaluator has concluded that the
defendant is competent to proceed, the department may return the defendant to a
county jail or to the community, as determined by the defendant's bond status. If
the evaluator has concluded that the defendant is incompetent to proceed and that
inpatient restoration services are not clinically appropriate, and outpatient
restoration services are available to the defendant in the community, the
department shall notify the court and the bridges court liaison, and the department
shall develop a discharge plan and a plan for community-based restoration services
in coordination with the community restoration services provider. The court shall
hold a hearing within seven days after receiving the notice, at which the department
shall provide to the court the plan for community-based restoration services, and
the court may enter any appropriate orders regarding the custody of the defendant
and the defendant's bond status. The department shall advise the defendant of the
date and time of the court hearing. If the department is returning the defendant to a
county jail, the county sheriff in the jurisdiction where the defendant must return
shall take custody of the defendant within seventy-two hours after receiving
notification from the department that the defendant's evaluation is completed. At
the time the department notifies the sheriff, the department shall also notify the
court and the bridges court liaison that the department is returning the defendant
to the custody of the jail.
(e) Nothing in this section restricts the right of the defendant to procure a
competency evaluation as provided in section 16-8.5-106.
(2) The defendant shall cooperate with the competency evaluator and with
other personnel providing ancillary services, such as testing and radiological
services. Statements made by the defendant in the course of the evaluation shall
be protected as provided in section 16-8.5-108. If the defendant does not cooperate
with the competency evaluator and other personnel providing ancillary services and
the lack of cooperation is not the result of a developmental disability or a mental
disability, the fact of the defendant's noncooperation with the competency
evaluator and other personnel providing ancillary services may be admissible in the
defendant's competency or restoration hearing to rebut any evidence introduced by
the defendant with regard to the defendant's competency.
(3) To aid in forming an opinion as to the competency of the defendant, it is
permissible in the course of an evaluation under this section to use confessions and
admissions of the defendant and any other evidence of the circumstances
surrounding the commission of the offense, as well as the medical and social
history of the defendant, in questioning the defendant. When the defendant is
noncooperative with the competency evaluator or personnel providing ancillary
services, an opinion of the competency of the defendant may be rendered by the
competency evaluator based upon confessions, admissions, and any other evidence
of the circumstances surrounding the commission of the offense, as well as the
known medical and social history of the defendant, and the opinion may be
admissible into evidence at the defendant's competency or restoration hearing.
(4) A written report of the evaluation must be prepared and the department
shall electronically deliver the report to the court clerk who ordered it. The clerk
shall provide a copy of the report to the prosecuting attorney, the bridges court
liaison, and the defense counsel using an e-filing system. Without reducing any
other timelines set forth in this article 8.5, the competency evaluator shall provide
the written report to the court within fourteen days after finishing meeting or
attempting to meet with the defendant to evaluate the defendant's competency.
(5) The competency evaluation and report must include, but need not be
limited to:
(a) The name of each physician, psychologist, or other expert who examined
the defendant;
(b) A description of the nature, content, extent, and results of the
competency evaluation and any tests conducted, which must include but need not
be limited to the information reviewed and relied upon in conducting the
competency evaluation and specific tests conducted by the competency evaluator;
(c) A diagnosis and prognosis of the defendant's mental disability or
developmental disability;
(d) An opinion as to whether the defendant currently suffers from a mental
disability or developmental disability. If the opinion of the competency evaluator is
that the defendant suffers from a mental disability or developmental disability,
then the report must include an opinion as to the diagnosis and the prognosis of the
defendant's mental disability or developmental disability.
(e) An opinion as to whether the defendant is competent to proceed or
incompetent to proceed. If the opinion of the competency evaluator is that the
defendant is incompetent to proceed, then the report must include:
(I) (A) An opinion as to whether there is a substantial probability that the
defendant, with restoration services, will attain competency within the reasonably
foreseeable future; and
(B) If possible, when the defendant is diagnosed with a moderate to severe
intellectual or developmental disability, acquired or traumatic brain injury, or
dementia, which either alone or together with a co-occurring mental illness affects
the defendant's ability to gain or maintain competency, the evaluator shall provide
an opinion as to whether there is a substantial probability that the defendant with
restoration services will attain competency within the reasonably foreseeable
future. When the opinion is that there is a substantial probability of attaining
competency, the evaluator shall specifically state whether the evaluator believes
there are unique or different services outside the standard competency restoration
curriculum developed by the department that the defendant may need in order to
be restored to competency within the reasonably foreseeable future.
(II) An opinion as to whether inpatient restoration services are clinically
appropriate to restore the defendant to competency.
(f) An opinion as to whether there is a substantial probability that the
defendant, with restoration services, will attain competency within the reasonably
foreseeable future. As part of forming their opinion, the competency evaluator shall
use due diligence in the review and summary of any prior competency opinions
regarding the defendant. If the competency evaluator's opinion regarding
restorability differs from opinions in past evaluations of the defendant, the
competency evaluator shall explain the basis for their different opinion.
(g) The competency evaluator's opinion as to whether the defendant meets
the criteria for a tier I or tier II designation, as defined in section 16-8.5-101 (19) and
(20); and
(h) The competency evaluator's opinion and the information and factors
considered in making determinations as to whether the defendant:
(I) Meets the criteria for an emergency mental health hold pursuant to
section 27-65-106;
(II) Meets the criteria for a certification for short-term treatment pursuant to
section 27-65-108.5 or 27-65-109 and, if the defendant meets such criteria,
whether the evaluator believes the defendant could be treated on an outpatient
basis pursuant to section 27-65-111. In assessing whether the defendant with a
pending criminal charge is a danger to self or others or is gravely disabled, if the
person is incarcerated, the competency evaluator or professional person, as
defined in section 27-65-102, and the court shall not rely on the fact that the
defendant is incarcerated or is an inpatient in a medical facility to establish that the
defendant is not a danger to self or others or is not gravely disabled. If it is the
evaluator's opinion that the defendant meets criteria for certification for short-term
treatment pursuant to section 27-65-108.5 or 27-65-109, the evaluator is not
required to request a petition for certification for short-term treatment of the
defendant in a court with jurisdiction pursuant to section 16-8.5-111 (3).
(III) Has an intellectual and developmental disability, as defined in section
25.5-10-202, and if the defendant does have such a disability, whether the
defendant may be eligible for any additional services pursuant to article 10 of title
25.5 or article 10.5 of title 27.
(6) Whenever a competency evaluation is ordered upon the request of either
party, the court may notify the county attorney or district attorney required to
conduct proceedings pursuant to section 27-65-113 (6) for the county in which the
charges are pending and the bridges court liaison hired or contracted pursuant to
article 95 of title 13 of all court dates for return of the report on competency to
ensure that all parties are on notice of the expected need for coordinated services
and planning with consideration of possible civil certification.
(7) Each court shall allow for any competency evaluation conducted
pursuant to the provisions of this section or section 16-8.5-106 to be submitted to
the court through electronic means.
(8) A competency evaluator is not liable for damages in any civil action for
failure to warn or protect a specific person or persons, including those identifiable
by their association with a specific location or entity, against the violent behavior of
a defendant being evaluated by the competency evaluator, and any competency
evaluator must not be held civilly liable for failure to predict such violent behavior,
except where the defendant has communicated to the competency evaluator a
serious threat of imminent physical violence against a specific person or persons,
including those identifiable by their association with a specific location or entity.