22-3428. Persons acquitted or verdict of not guilty and jury answers affirmative to special question; commitment to state security hospital; determination of whether person is a mentally ill person, n
22-3428
22-3428. Persons acquitted or verdict of not guiltyand jury answers affirmative to special question; commitment tostate security hospital; determination of whether person is a mentally illperson, notice and hearing; procedure for transfer, release or discharge,standards, notice and hearing.(1) (a) When a defendant is acquitted and the jury answers in the affirmativeto the special question asked pursuant to K.S.A. 22-3221 and amendmentsthereto, the defendant shallbe committed to the state security hospital for safekeeping and treatment. Afinding of notguilty and the jury answering in the affirmative tothe special question asked pursuant to K.S.A. 22-3221 and amendmentsthereto, shall be prima facieevidence that the acquitted defendant is presently likely to cause harm toself or others.
(b) Within 90 days of the defendant's admission, the chief medical officerof the state security hospital shall send to the court a written evaluationreport. Upon receipt of the report, the court shall set a hearing to determinewhether or not the defendant is currently a mentally ill person. The hearingshall be held within 30 days after the receipt by the court of the chiefmedical officer's report.
(c) The court shall give notice of the hearing to the chief medicalofficer of the state security hospital, the district or county attorney, thedefendant and the defendant's attorney.The court shall inform the defendant that such defendant is entitled tocounseland that counsel will be appointed to represent the defendant if the defendantis not financially able to employ an attorney as provided in K.S.A. 22-4503 etseq. and amendments thereto. The defendant shall remain at the statesecurity hospital pending the hearing.
(d) At the hearing, the defendant shall have the right to present evidenceand cross-examine witnesses. At the conclusion of the hearing, if the courtfinds by clear and convincing evidence that the defendant is not currently amentally ill person, the court shall dismiss the criminal proceeding anddischarge the defendant, otherwise the court maycommit the defendant to the statesecurity hospital for treatment or may place the defendant on conditionalrelease pursuant to subsection (4).
(2) Subject to the provisions of subsection (3):
(a) Whenever it appears to the chief medical officer of the statesecurity hospital that a person committed under subsection(1)(d) is not likely to cause harm to other persons in a less restrictivehospital environment, the officer may transfer the person toany state hospital, subject to the provisions of subsection (3). At any timesubsequent thereto during which such person is still committed to a statehospital, if the chief medical officer of that hospital finds that the personmay be likely to cause harm or hascaused harm, to others, such officer may transfer the personback to the state security hospital.
(b) Any person committed under subsection (1)(d) may be grantedconditional release or discharge as an involuntary patient.
(3) Before transfer of a person from the state security hospital pursuantto subsection (2)(a) or conditional release or discharge of a person pursuantto subsection (2)(b), the chief medical officer of the state securityhospital or thestate hospital where the patient is under commitment shall give notice tothe district court of the county from which the person was committed thattransfer of the patient is proposed or that the patient is ready forproposed conditional release or discharge. Such noticeshall include, but not be limited to:(a) Identification of the patient;(b) the course of treatment;(c) a current assessment of the defendant's mentalillness;(d) recommendations for future treatment, if any; and(e) recommendations regarding conditional release or discharge, if any.Upon receiving notice, the district court shallorder that a hearing be held on the proposed transfer, conditional releaseor discharge. The court shall give noticeof the hearing to thestate hospital or state security hospital where the patient is under commitmentand to the district orcounty attorney of the county from which the person wasoriginally ordered committed and shallorder the involuntary patient to undergo a mental evaluation by a persondesignated by the court. A copy of all orders of the court shall besent to the involuntary patient and the patient's attorney. The reportof the court ordered mental evaluation shall be given to the district orcounty attorney, the involuntary patient and the patient's attorney atleast five days prior to the hearing. The hearing shall be held within30 days after the receipt by the court of the chief medical officer's notice.The involuntary patient shall remain in thestate hospital or state security hospital where the patient is undercommitment until thehearing on the proposed transfer, conditional release or discharge isto be held. At the hearing, the court shall receive all relevant evidence,including the written findings and recommendations of the chief medicalofficer of the state security hospital or the state hospital where the patientis under commitment, and shall determine whether the patient shall betransferred to a less restrictive hospitalenvironment or whether the patient shall be conditionally released ordischarged. The patient shall have the right topresent evidence at such hearing and to cross-examine any witnessescalled by the district or county attorney. At the conclusion of thehearing, if the court finds by clear and convincing evidence that thepatient will not be likely to cause harm to self orothers if transferred to a less restrictivehospital environment, the court shallorder the patient transferred. If the court finds by clear and convincingevidence that the patient is not currently a mentally ill person, the courtshall order the patient discharged or conditionally released otherwise,the court shall order the patient to remain in the state securityhospital or state hospital where the patient is under commitment. If the courtorders the conditionalrelease of the patient in accordance with subsection (4), the court mayorder as an additional conditionto the release that the patient continue to take prescribed medicationand report as directed to a person licensed to practice medicine andsurgery to determine whether or not the patient is taking themedication or that the patient continue to receive periodic psychiatricor psychological treatment.
(4) In order to ensure the safety and welfare of a patientwho is tobe conditionally released and the citizenry of the state, the court mayallow the patient to remain in custody at a facility under thesupervision of the secretary of social and rehabilitation services for aperiod of time not to exceed 30 days in order to permitsufficient time for the secretary to prepare recommendations to thecourt for a suitable reentry program for the patient. The reentryprogram shall be specifically designed to facilitate the return of thepatient to the community as a functioning, self-supporting citizen, andmay include appropriate supportive provisions for assistance inestablishing residency, securing gainful employment, undergoing neededvocational rehabilitation, receiving marital and family counseling, andsuch other outpatient services that appear beneficial. If apatient who is to be conditionally released will be residing in a countyother than the county where the district court that ordered theconditional release is located, the court shall transfer venue of thecase to the district court of the other county and send a copy of allof the court's records of the proceedings to the other court. In all cases ofconditional release the court shall: (a) Order that the patient beplaced under the temporary supervision of district court probation and paroleservices, community treatmentfacility or anyappropriate private agency; and (b) require as a condition precedent tothe release that the patient agree in writing to waive extradition inthe event a warrant is issued pursuant to K.S.A. 22-3428b and amendmentsthereto.
(5) At any time during the conditional release period, aconditionally released patient, through the patient'sattorney, or thecounty or district attorney of the county in which the district courthaving venue is located may file a motion for modification of theconditions of release, and the court shall hold an evidentiary hearingon the motion within 15 days of its filing. The court shallgive notice of the time for the hearing to the patient and the countyor district attorney. If the court finds from the evidence at thehearing that the conditional provisions of release should be modified orvacated, it shall so order. If at any time during the transitionalperiod the designated medical officer or supervisory personnel or thetreatment facility informsthe court that the patient is not satisfactorily complying with theprovisions of the conditional release, the court, after a hearing forwhich notice has been given to the county or district attorneyand the patient, may make orders: (a) For additional conditions ofrelease designed to effect the ends of the reentry program, (b)requiring the county or district attorney to file apetition to determine whether the patient is a mentally ill person asprovided inK.S.A. 59-2957 and amendments thereto, or (c)requiringthat the patient becommitted to the state security hospital or any state hospital. In caseswhere an application is ordered to be filed, the court shallproceed to hear and determine the application pursuant to the care andtreatment act for mentally illpersons and that act shall apply to all subsequentproceedings. The costs of allproceedings, the mental evaluation and the reentry program authorizedby this section shall be paid by the county from which the person wascommitted.
(6) In any case in which the defense that the defendantlacked the required mental state pursuant to K.S.A. 22-3220 and amendmentsthereto is reliedon, the court shall instruct the jury on the substance of this section.
(7) As used in this section and K.S.A. 22-3428a and amendments thereto:
(a) "Likely to cause harm to self or others" means that the person islikely,in the reasonably foreseeable future, to cause substantial physical injury orphysical abuse to self or others or substantial damage to another's property,or evidenced by behavior causing, attempting or threatening such injury, abuseor neglect.
(b) "Mentally ill person" means any person who:
(A) Is suffering from asevere mental disorder to the extent that such person is in need of treatment;and
(B) is likely to cause harm to self or others.
(c) "Treatment facility" means any mental health center or clinic,psychiatric unit of a medical care facility, psychologist, physician or otherinstitution or individual authorized or licensed by law to provide eitherinpatient or outpatient treatment to any patient.
History: L. 1970, ch. 129, § 22-3428;L. 1971, ch. 117, § 1;L. 1975, ch. 200, § 1;L. 1976, ch. 163, § 23;L. 1978, ch. 129, § 1;L. 1979, ch. 97, § 1;L. 1980, ch. 105, § 1;L. 1982, ch. 148, § 2;L. 1986, ch. 211, § 28;L. 1989, ch. 101, § 1;L. 1992, ch. 309, § 3;L. 1993, ch. 247, § 2;L. 1995, ch. 251, § 28;L. 1996, ch. 167, § 45;L. 1996, ch. 246, § 1; July 1.