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91_HB3236
LRB9111408RCdv
1 AN ACT in relation to defendants found not guilty by
2 reason of insanity.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Unified Code of Corrections is amended by
6 changing Section 5-2-4 as follows:
7 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
8 Sec. 5-2-4. Proceedings after Acquittal by Reason of
9 Insanity.
10 (a) After a finding or verdict of not guilty by reason
11 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
12 of Criminal Procedure of 1963, the defendant shall be ordered
13 to the Department of Human Services for an evaluation as to
14 whether he is subject to involuntary admission or in need of
15 mental health services. The order shall specify whether the
16 evaluation shall be conducted on an inpatient or outpatient
17 basis. If the evaluation is to be conducted on an inpatient
18 basis, the defendant shall be placed in a secure setting
19 unless the Court determines that there are compelling reasons
20 why such placement is not necessary. After the evaluation and
21 during the period of time required to determine the
22 appropriate placement, the defendant shall remain in jail.
23 Upon completion of the placement process the sheriff shall
24 be notified and shall transport the defendant to the
25 designated facility.
26 The Department shall provide the Court with a report of
27 its evaluation within 30 days of the date of this order. The
28 Court shall hold a hearing as provided under the Mental
29 Health and Developmental Disabilities Code to determine if
30 the individual is: (a) subject to involuntary admission; (b)
31 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 Public Act
25 83-1449 apply only to defendants charged with a forcible
26 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, treatment plans, review proceedings,
3 including review of treatment and treatment plans, and
4 discharge of the defendant after such order shall be under
5 the Mental Health and Developmental Disabilities Code, except
6 that the initial order for admission of a defendant acquitted
7 of a felony by reason of insanity shall be for an indefinite
8 period of time. Such period of commitment shall not exceed
9 the maximum length of time that the defendant would have been
10 required to serve, less credit for good behavior, before
11 becoming eligible for release had he been convicted of and
12 received the maximum sentence for the most serious crime for
13 which he has been acquitted by reason of insanity. The Court
14 shall determine the maximum period of commitment by an
15 appropriate order. During this period of time, the defendant
16 shall not be permitted to be in the community in any manner,
17 including but not limited to off-grounds privileges, with or
18 without escort by personnel of the Department of Human
19 Services, unsupervised on-grounds privileges, discharge or
20 conditional or temporary release, except by a plan as
21 provided in this Section. In no event shall a defendant's
22 continued unauthorized absence be a basis for discharge. Not
23 more than 30 days after admission and every 60 days
24 thereafter so long as the initial order remains in effect,
25 the facility director shall file a treatment plan report with
26 the court and forward a copy of the treatment plan report to
27 the clerk of the court, the State's Attorney, and the
28 defendant's attorney, if the defendant is represented by
29 counsel, or to a person authorized by the defendant under the
30 Mental Health and Developmental Disabilities Confidentiality
31 Act to be sent a copy of the report. The report shall
32 include an opinion as to whether the defendant is currently
33 subject to involuntary admission, in need of mental health
34 services on an inpatient basis, or in need of mental health
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1 services on an outpatient basis. The report shall also
2 summarize the basis for those findings and provide a current
3 summary of the following items from the treatment plan: (1)
4 an assessment of the defendant's treatment needs, (2) a
5 description of the services recommended for treatment, (3)
6 the goals of each type of element of service, (4) an
7 anticipated timetable for the accomplishment of the goals,
8 and (5) a designation of the qualified professional
9 responsible for the implementation of the plan. The report
10 may also include unsupervised on-grounds privileges,
11 off-grounds privileges (with or without escort by personnel
12 of the Department of Human Services), home visits and
13 participation in work programs, but only where such
14 privileges have been approved by specific court order, which
15 order may include such conditions on the defendant as the
16 Court may deem appropriate and necessary to reasonably assure
17 the defendant's satisfactory progress in treatment and the
18 safety of the defendant and others.
19 (c) Every defendant acquitted of a felony by reason of
20 insanity and subsequently found to be subject to involuntary
21 admission or in need of mental health services shall be
22 represented by counsel in all proceedings under this Section
23 and under the Mental Health and Developmental Disabilities
24 Code.
25 (1) The Court shall appoint as counsel the public
26 defender or an attorney licensed by this State.
27 (2) Upon filing with the Court of a verified
28 statement of legal services rendered by the private
29 attorney appointed pursuant to paragraph (1) of this
30 subsection, the Court shall determine a reasonable fee
31 for such services. If the defendant is unable to pay the
32 fee, the Court shall enter an order upon the State to pay
33 the entire fee or such amount as the defendant is unable
34 to pay from funds appropriated by the General Assembly
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1 for that purpose.
2 (d) When the facility director determines that:
3 (1) the defendant is no longer subject to
4 involuntary admission or in need of mental health
5 services on an inpatient basis; and
6 (2) the defendant may be conditionally released
7 because he or she is still in need of mental health
8 services or that the defendant may be discharged as not
9 in need of any mental health services; or
10 (3) the defendant no longer requires placement in a
11 secure setting;
12 the facility director shall give written notice to the Court,
13 State's Attorney and defense attorney. Such notice shall set
14 forth in detail the basis for the recommendation of the
15 facility director, and specify clearly the recommendations,
16 if any, of the facility director, concerning conditional
17 release. Within 30 days of the notification by the facility
18 director, the Court shall set a hearing and make a finding as
19 to whether the defendant is:
20 (i) subject to involuntary admission; or
21 (ii) in need of mental health services in the form
22 of inpatient care; or
23 (iii) in need of mental health services but not
24 subject to involuntary admission or inpatient care; or
25 (iv) no longer in need of mental health services;
26 or
27 (v) no longer requires placement in a secure
28 setting.
29 Upon finding by the Court, the Court shall enter its
30 findings and such appropriate order as provided in subsection
31 (a) of this Section.
32 (e) A defendant admitted pursuant to this Section, or
33 any person on his behalf, may file a petition for treatment
34 plan review, transfer to a non-secure setting within the
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1 Department of Human Services or discharge or conditional
2 release under the standards of this Section in the Court
3 which rendered the verdict. Upon receipt of a petition for
4 treatment plan review, transfer to a non-secure setting or
5 discharge or conditional release, the Court shall set a
6 hearing to be held within 120 days. Thereafter, no new
7 petition may be filed for 120 days without leave of the
8 Court.
9 (f) The Court shall direct that notice of the time and
10 place of the hearing be served upon the defendant, the
11 facility director, the State's Attorney, and the defendant's
12 attorney. If requested by either the State or the defense or
13 if the Court feels it is appropriate, an impartial
14 examination of the defendant by a psychiatrist or clinical
15 psychologist as defined in Section 1-103 of the Mental Health
16 and Developmental Disabilities Code who is not in the employ
17 of the Department of Human Services shall be ordered, and the
18 report considered at the time of the hearing.
19 (g) The findings of the Court shall be established by
20 clear and convincing evidence. The burden of proof and the
21 burden of going forth with the evidence rest with the State
22 when a hearing is held to review the determination of the
23 facility director that the defendant should be transferred to
24 a non-secure setting, discharged or conditionally released.
25 The burden of proof and the burden of going forth with the
26 evidence rest on the defendant when a hearing is held to
27 review a petition filed by or on behalf of such defendant.
28 The evidence shall be presented in open Court with the right
29 of confrontation and cross-examination.
30 (h) Before the court orders that the defendant be
31 discharged or conditionally released, it shall order the
32 facility director to establish a discharge plan that includes
33 a plan for the defendant's shelter, support, and
34 self-medication. If appropriate, the court shall order that
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1 the facility director establish a program to train the
2 defendant in self-medication under standards established by
3 the Department of Human Services. Before the discharge or
4 conditional release of the defendant from the facility, the
5 court shall order the facility director to have the defendant
6 examined by a psychiatrist or clinical psychologist to
7 determine if the discharge or conditional release of the
8 defendant could pose a threat of inflicting serious physical
9 harm to another person if the defendant fails to take
10 medication. If the Court finds that the defendant is no
11 longer in need of mental health services it shall order the
12 facility director to discharge the defendant. If the Court
13 finds that the defendant is in need of mental health
14 services, and no longer in need of inpatient care, it shall
15 order the facility director to release the defendant under
16 such conditions as the Court deems appropriate and as
17 provided by this Section. Such conditional release shall be
18 imposed for a period of five years and shall be subject to
19 later modification by the Court as provided by this Section.
20 If the Court finds that the defendant is subject to
21 involuntary admission or in need of mental health services on
22 an inpatient basis, it shall order the facility director not
23 to discharge or release the defendant in accordance with
24 paragraph (b) of this Section.
25 (i) If within the period of the defendant's conditional
26 release, the Court determines, after hearing evidence, that
27 the defendant has not fulfilled the conditions of release,
28 the Court shall order a hearing to be held consistent with
29 the provisions of paragraph (f) and (g) of this Section. At
30 such hearing, if the Court finds that the defendant is
31 subject to involuntary admission or in need of mental health
32 services on an inpatient basis, it shall enter an order
33 remanding him or her to the Department of Human Services or
34 other facility. If the defendant is remanded to the
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1 Department of Human Services, he or she shall be placed in a
2 secure setting unless the Court determines that there are
3 compelling reasons that such placement is not necessary. If
4 the Court finds that the defendant continues to be in need
5 of mental health services but not on an inpatient basis, it
6 may modify the conditions of the original release in order to
7 reasonably assure the defendant's satisfactory progress in
8 treatment and his or her safety and the safety of others. In
9 no event shall such conditional release be longer than eight
10 years. Nothing in this Section shall limit a Court's contempt
11 powers or any other powers of a Court.
12 (j) An order of admission under this Section does not
13 affect the remedy of habeas corpus.
14 (k) In the event of a conflict between this Section and
15 the Mental Health and Developmental Disabilities Code or the
16 Mental Health and Developmental Disabilities Confidentiality
17 Act, the provisions of this Section shall govern.
18 (l) This amendatory Act shall apply to all persons who
19 have been found not guilty by reason of insanity and who are
20 presently committed to the Department of Mental Health and
21 Developmental Disabilities (now the Department of Human
22 Services).
23 (m) The Clerk of the Court shall, after the entry of an
24 order of transfer to a non-secure setting of the Department
25 of Human Services or discharge or conditional release,
26 transmit a certified copy of the order to the Department of
27 Human Services, and the sheriff of the county from which the
28 defendant was admitted. In cases where the arrest of the
29 defendant or the commission of the offense took place in any
30 municipality with a population of more than 25,000 persons,
31 the Clerk of the Court shall also transmit a certified copy
32 of the order of discharge or conditional release to the
33 proper law enforcement agency for said municipality provided
34 the municipality has requested such notice in writing.
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1 (n) (1) The Department of Human Services shall establish
2 and maintain a Statewide Defendants Found Not Guilty By
3 Reason of Insanity Database for the purpose of
4 identifying defendants found not guilty by reason of
5 insanity who have been discharged or conditionally
6 released from mental health facilities and making that
7 information available to persons who may encounter
8 defendants found not guilty by reason of insanity.
9 (2) The Department of Human Services must make the
10 information contained in the Statewide Defendants Found
11 Not Guilty By Reason of Insanity Database accessible on
12 the Internet by means of a hyperlink labeled "Defendants
13 Found Not Guilty By Reason of Insanity Information" on
14 the Department's World Wide Web home page. The Department
15 of Human Services must update that information as it
16 deems necessary. The Department of Human Services may
17 require that a person who seeks access to the defendants
18 found not guilty by reason of insanity information submit
19 biographical information about himself or herself before
20 permitting access to the defendants found not guilty by
21 reason of insanity information. The Department of Human
22 Services may limit access to the defendants found not
23 guilty by reason of insanity information to information
24 about defendants found not guilty by reason of insanity
25 who reside within a specified geographic area in
26 proximity to the address of the person seeking that
27 information. The Department of Human Services must
28 promulgate rules in accordance with the Illinois
29 Administrative Procedure Act to implement this subsection
30 (n) and those rules must include procedures to ensure
31 that the information in the database is accurate.
32 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98;
33 91-536, eff. 1-1-00.)
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1 Section 10. The Mental Health and Developmental
2 Disabilities Confidentiality Act is amended by changing
3 Section 11 as follows:
4 (740 ILCS 110/11) (from Ch. 91 1/2, par. 811)
5 Sec. 11. Disclosure of records and communications.
6 Records and communications may be disclosed:
7 (i) in accordance with the provisions of the Abused
8 and Neglected Child Reporting Act;
9 (ii) when, and to the extent, a therapist, in his
10 or her sole discretion, determines that disclosure is
11 necessary to initiate or continue civil commitment
12 proceedings under the laws of this State or to otherwise
13 protect the recipient or other person against a clear,
14 imminent risk of serious physical or mental injury or
15 disease or death being inflicted upon the recipient or by
16 the recipient on himself or another;
17 (iii) when, and to the extent disclosure is, in the
18 sole discretion of the therapist, necessary to the
19 provision of emergency medical care to a recipient who is
20 unable to assert or waive his or her rights hereunder;
21 (iv) when disclosure is necessary to collect sums
22 or receive third party payment representing charges for
23 mental health or developmental disabilities services
24 provided by a therapist or agency to a recipient under
25 Chapter V of the Mental Health and Developmental
26 Disabilities Code or to transfer debts under the
27 Uncollected State Claims Act; however, disclosure shall
28 be limited to information needed to pursue collection,
29 and the information so disclosed shall not be used for
30 any other purposes nor shall it be redisclosed except in
31 connection with collection activities;
32 (v) when requested by a family member, the
33 Department of Human Services may assist in the location
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1 of the interment site of a deceased recipient who is
2 interred in a cemetery established under Section 100-26
3 of the Mental Health and Developmental Disabilities
4 Administrative Act;
5 (vi) in judicial proceedings under Article VIII of
6 Chapter III and Article V of Chapter IV of the Mental
7 Health and Developmental Disabilities Code and
8 proceedings and investigations preliminary thereto, to
9 the State's Attorney for the county or residence of a
10 person who is the subject of such proceedings, or in
11 which the person is found, or in which the facility is
12 located, to the attorney representing the recipient in
13 the judicial proceedings, to any person or agency
14 providing mental health services that are the subject of
15 the proceedings and to that person's or agency's
16 attorney, to any court personnel, including but not
17 limited to judges and circuit court clerks, and to a
18 guardian ad litem if one has been appointed by the court,
19 provided that the information so disclosed shall not be
20 utilized for any other purpose nor be redisclosed except
21 in connection with the proceedings or investigations;
22 (vii) when, and to the extent disclosure is
23 necessary to comply with the requirements of the Census
24 Bureau in taking the federal Decennial Census;
25 (viii) when, and to the extent, in the therapist's
26 sole discretion, disclosure is necessary to warn or
27 protect a specific individual against whom a recipient
28 has made a specific threat of violence where there exists
29 a therapist-recipient relationship or a special
30 recipient-individual relationship;
31 (ix) in accordance with the Sex Offender
32 Registration Act; and
33 (x) in accordance with the Rights of Crime Victims
34 and Witnesses Act; and.
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1 (xi) if they are contained in the Statewide
2 Defendants Found Not Guilty By Reason of Insanity
3 Database and are disclosed in accordance with the
4 provisions of subsection (n) of Section 5-2-4 of the
5 Unified Code of Corrections.
6 Any person, institution, or agency, under this Act,
7 participating in good faith in the making of a report under
8 the Abused and Neglected Child Reporting Act or in the
9 disclosure of records and communications under this Section,
10 shall have immunity from any liability, civil, criminal or
11 otherwise, that might result by reason of such action. For
12 the purpose of any proceeding, civil or criminal, arising out
13 of a report or disclosure under this Section, the good faith
14 of any person, institution, or agency so reporting or
15 disclosing shall be presumed.
16 (Source: P.A. 90-423, eff. 8-15-97; 90-538, eff. 12-1-97;
17 90-655, eff. 7-30-98; 91-357, eff. 7-29-99.)