(a)It is the purpose of this section to provide a mechanism by which a defendant is examined in the least restrictive environment deemed sufficient to complete the examination and prevent unnecessary pre-trial detention and substantial threat of physical violence to any person, including a defendant.
(b)The order for examination may provide for an examination at any jail or correctional center, or at the State Hospital, or at its successor in interest, or at such other place as the court shall determine, after hearing a recommendation by the Commissioner of Mental Health.
(c)A motion for examination shall be made as soon as practicable after a party or the court has good faith reason to believe that there are grounds for an examination. A motion for an examination shall detail the facts
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(a) It is the purpose of this section to provide a mechanism by which a defendant is examined in the least restrictive environment deemed sufficient to complete the examination and prevent unnecessary pre-trial detention and substantial threat of physical violence to any person, including a defendant.
(b) The order for examination may provide for an examination at any jail or correctional center, or at the State Hospital, or at its successor in interest, or at such other place as the court shall determine, after hearing a recommendation by the Commissioner of Mental Health.
(c) A motion for examination shall be made as soon as practicable after a party or the court has good faith reason to believe that there are grounds for an examination. A motion for an examination shall detail the facts indicating incompetency on which the motion is based and shall certify that the motion is made after the moving party has met with or personally observed the defendant. An attorney making such a motion shall be subject to the potential sanctions of Rule 11 of the Vermont Rules of Civil Procedure.
(d) Upon the making of a motion for examination, if the court finds sufficient facts to order an examination, the court shall order a mental health screening to be completed by a designated mental health professional while the defendant is still at the court.
(e) If the screening cannot be commenced and completed at the courthouse within two hours from the time of the defendant’s appearance before the court, the court may forgo consideration of the screener’s recommendations.
(f) The court and parties shall review the recommendation of the designated mental health professional and consider the facts and circumstances surrounding the charge and observations of the defendant in court. If the court finds sufficient facts to order an examination, it may be ordered to be completed in the least restrictive environment deemed sufficient to complete the examination, consistent with subsection (a) of this section.
(g)(1) Inpatient examination at the Vermont State Hospital, or its successor in interest, or a designated hospital. The court shall not order an inpatient examination unless the designated mental health professional determines that the defendant is a person in need of treatment as defined in 18 V.S.A. § 7101(17).
(2) Before ordering the inpatient examination, the court shall determine what terms, if any, shall govern the defendant’s release from custody under sections 7553-7554 of this title.
(3) An order for inpatient examination shall provide for placement of the defendant in the custody and care of the Commissioner of Mental Health.
(A) If a Vermont State Hospital psychiatrist, or a psychiatrist of its successor in interest, or a designated hospital psychiatrist determines that the defendant is not in need of inpatient hospitalization prior to admission, the Commissioner shall release the defendant pursuant to the terms governing the defendant’s release from the Commissioner’s custody as ordered by the court. The Commissioner of Mental Health shall ensure that all individuals who are determined not to be in need of inpatient hospitalization receive appropriate referrals for outpatient mental health services.
(B) If a Vermont State Hospital psychiatrist, or a psychiatrist of its successor in interest, or designated hospital psychiatrist determines that the defendant is in need of inpatient hospitalization:
(i) The Commissioner shall obtain an appropriate inpatient placement for the defendant at the Vermont State Hospital psychiatrist, or a psychiatrist of its successor in interest, or a designated hospital and, based on the defendant’s clinical needs, may transfer the defendant between hospitals at any time while the order is in effect. A transfer to a designated hospital outside the no refusal system is subject to acceptance of the patient for admission by that hospital.
(ii) The defendant shall be returned to court for further appearance on the following business day if the defendant is no longer in need of inpatient hospitalization, unless the terms established by the court pursuant to subdivision (2) of this section permit the defendant to be released from custody.
(C) The defendant shall be returned to court for further appearance within two business days after the Commissioner notifies the court that the examination has been completed, unless the terms established by the court pursuant to subdivision (2) of this section permit the defendant to be released from custody.
(4) If the defendant is to be released pursuant to subdivision (3)(A), (3)(B)(ii), or (3)(C) of this subsection and is not in the custody of the Commissioner of Corrections, the defendant shall be returned to the defendant’s residence or such other appropriate place within the State of Vermont by the Department of Mental Health at the expense of the court.
(5) If it appears that an inpatient examination cannot reasonably be completed within 30 days, the court issuing the original order, on request of the Commissioner and upon good cause shown may order placement at the hospital extended for additional periods of 15 days in order to complete the examination, and the defendant on the expiration of the period provided for in such order shall be returned in accordance with this subsection.
(6) For the purposes of this subsection, “in need of inpatient hospitalization” means an individual has been determined under clinical standards of care to require inpatient treatment.
(h) Defendants charged with misdemeanor offenses who are not in the custody of the Commissioner of Corrections shall be examined on an outpatient basis for mental competency unless the court makes findings on the record that there is good cause for an inpatient evaluation. Examinations occurring in the community shall be conducted at a location within 60 miles of the defendant’s residence or at another location agreed to by the defendant.
(i) As used in this section:
(1) “No refusal system” means a system of hospitals and intensive residential recovery facilities under contract with the Department of Mental Health that provides high intensity services, in which the facilities shall admit any individual for care if the individual meets the eligibility criteria established by the Commissioner in contract.
(2) “Successor in interest” shall mean the mental health hospital owned and operated by the State that provides acute inpatient care and replaces the Vermont State Hospital. (Added 1969, No. 20, § 2; amended 1987, No. 248 (Adj. Sess.), § 2; 1989, No. 187 (Adj. Sess.), § 5; 1991, No. 231 (Adj. Sess.), § 7; 1995, No. 134 (Adj. Sess.), § 1; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 71, §§ 113a, 113b; 2005, No. 174 (Adj. Sess.), § 20; 2005, No. 215 (Adj. Sess.), § 124; 2007, No. 15, § 22; 2009, No. 119 (Adj. Sess.), § 12; 2011, No. 79 (Adj. Sess.), § 15, eff. April 12, 2012; 2023, No. 28, § 3, eff. July 1, 2023.)