23A-46-1      Conduct of psychiatric or psychological examination--Appointment of examiners--Additional examiners--Commitment for examination.
23A-46-1.1      List of professionals qualified to conduct evaluations.
23A-46-2      Report by examiner--Contents.
23A-46-3      Hearing--Representation of subject--Opportunity to present evidence.
23A-46-4      Reports of director of facility where person hospitalized.
23A-46-5      Video tape of defendant's testimony or interview.
23A-46-6      Habeas corpus proceeding not precluded.
23A-46-7      Hearing on discharge of person--Time for requesting.
23A-46-8      Notice that release of hospitalized person would create substantial risk--Stay of release.
23A-46-9      Mental examination and report--Conduct of hearing.
23A-46-10      Commitment--Finding.
23A-46-11      Recovery--Release procedure--Compliance with prescribed regimen as condition.
23A-46-12      Failure to comply with regimen--Notice--Arrest--Court determination.
23A-46-13      Hospitalized person against whom charges dismissed--Notice of risk--Civil proceedings.

23A-46-1. Conduct of psychiatric or psychological examination--Appointment of examiners--Additional examiners--Commitment for examination.

A psychiatric or psychological examination ordered pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, shall be conducted by:

(1)    A licensed or certified psychiatrist;

(2)    A licensed clinical psychologist;

(3)    A certified social worker licensed for private independent practice with two years of supervised clinical experience in a mental health setting and with training on how to conduct and score competency evaluations;

(4)    A certified nurse practitioner or clinical nurse specialist with current psychiatric certification and with training on how to conduct and score competency evaluations;

(5)    A licensed professional counselor-mental health with training on how to conduct and score competency evaluations; or

(6)    If the court finds it appropriate, by more than one examiner.

Each examiner shall be designated by the court, except that if the examination is ordered under § 23A-27-43 or 23A-46-9, upon the request of the defendant an additional examiner may be selected by the defendant. For the purposes of an examination pursuant to an order under § 23A-10-4, 23A-10A-3, 23A-26-12.1, 23A-27-43, or 23A-46-9, the court may commit the person to be examined for a reasonable period to the custody of a suitable facility.

Source: SL 1985, ch 192, § 30; SL 2017, ch 109, § 18.

23A-46-1.1. List of professionals qualified to conduct evaluations.

The licensing board of each professional listed in § 23A-46-1 shall maintain a list of each professional licensed under their authority qualified to conduct competency evaluations. The Department of Social Services shall maintain a list of those evaluators for use by the courts in coordination with Department of Health, as needed.

Source: SL 2017, ch 109, § 19.

23A-46-2. Report by examiner--Contents.

A psychiatric or psychological report ordered pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive; 23A-26-12 to 23A-26-12.6, inclusive; or 23A-27-42 to 23A-27-46, inclusive, shall be prepared by the examiner designated to conduct the psychiatric or psychological examination, shall be filed with the court with copies provided to the counsel for the person examined and to the prosecuting attorney and shall include:

(1)    The person's history, if applicable, and present symptoms;

(2)    A description of the psychiatric, psychological, and medical tests that were employed and their results;

(3)    The examiner's findings; and

(4)    The examiner's opinions as to diagnosis, prognosis and:

(a)    If the examination is ordered under § 23A-10A-3, whether the person is suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature and consequences of the proceedings against the person or to assist properly in the person's defense;

(b)    If the examination is ordered under § 23A-10-4, whether the person was insane at the time of the offense charged;

(c)    If the examination is ordered under § 23A-46-9, whether the person is suffering from a mental disease or defect as a result of which the person's release would create a substantial risk of bodily injury to another person or serious damage to property of another;

(d)    If the examination is ordered under § 23A-26-12.1 or 23A-27-43, whether the person is suffering from a mental disease or defect as a result of which the person is in need of custody for care or treatment in a suitable facility; and

(e)    If the examination is ordered as a part of a presentence investigation, any recommendation the examiner may have as to how the mental condition of the defendant should affect the sentence.

Source: SL 1985, ch 192, § 31; SL 2017, ch 109, § 20.

23A-46-3. Hearing--Representation of subject--Opportunity to present evidence.

At a hearing ordered pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, the person whose mental condition is the subject of the hearing shall be represented by counsel and, if he is financially unable to obtain adequate representation, counsel shall be appointed for him. The person shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf and to confront and cross-examine witnesses who appear at the hearing.

Source: SL 1985, ch 192, § 32.

23A-46-4. Reports of director of facility where person hospitalized.

The director of the facility in which a person is hospitalized pursuant to:

(1)    Section 23A-10-4, shall prepare semiannual reports; or

(2)    Section 23A-26-12.1, 23A-27-43, or 23A-46-9, shall prepare an annual report concerning the mental condition of the person and containing recommendations concerning the need for his continued hospitalization. The reports shall be submitted to the court that ordered the person's commitment to the facility and copies of the report shall be submitted to such other persons as the court may direct.

Source: SL 1985, ch 192, § 33.

23A-46-5. Video tape of defendant's testimony or interview.

Upon written request of defense counsel, the court may order a video tape record made of the defendant's testimony or interview upon which the periodic report is based pursuant to § 23A-46-4. Such video tape record shall be submitted to the court along with the periodic report.

Source: SL 1985, ch 192, § 34.

23A-46-6. Habeas corpus proceeding not precluded.

Nothing contained in § 23A-26-12 or 23A-46-10 precludes a person who is committed under either of such sections from establishing by writ of habeas corpus the illegality of his detention.

Source: SL 1985, ch 192, § 35.

23A-46-7. Hearing on discharge of person--Time for requesting.

Regardless of whether the director of the facility in which a person is hospitalized has filed a certificate as provided in this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, counsel for the person or his guardian may, at any time during such person's hospitalization, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility, but no such motion may be filed within one hundred eighty days of a court determination that the person should continue to be hospitalized. A copy of the motion shall be sent to the director of the facility in which the person is hospitalized and to the prosecuting attorney.

Source: SL 1985, ch 192, § 36; SL 1993, ch 213, § 110.

23A-46-8. Notice that release of hospitalized person would create substantial risk--Stay of release.

If the director of a facility in which a person is hospitalized certifies that a person whose sentence is about to expire or who has been committed to the custody of the Human Services Center pursuant to § 23A-10A-4, or against whom all criminal charges have been dismissed solely for the reasons related to the mental condition of the person, is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, he shall transmit a certificate to that effect to the clerk of the court which had jurisdiction over the person. The clerk shall send a copy of the certificate to the person's counsel and to the prosecuting attorney. The court shall order a hearing to determine whether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another. A certificate filed under this section shall stay the release of the person pending completion of the procedures contained in §§ 23A-46-9 to 23A-46-13, inclusive.

Source: SL 1985, ch 192, § 24.

23A-46-9. Mental examination and report--Conduct of hearing.

Prior to the date of hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted and that a psychiatric or psychological report be filed with the court, pursuant to §§ 23A-46-1 and 23A-46-2. The hearing shall be conducted pursuant to the provisions of § 23A-46-3.

Source: SL 1985, ch 192, § 25.

23A-46-10. Commitment--Finding.

If, after the hearing, the court finds by clear and convincing evidence that the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall commit the person to the Human Services Center for treatment until the person's mental condition is such that his release or conditional release under a prescribed regimen of medical, psychiatric, psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another.

Source: SL 1985, ch 192, § 26.

23A-46-11. Recovery--Release procedure--Compliance with prescribed regimen as condition.

When the director of the facility in which a person is hospitalized pursuant to § 23A-46-10 determines that the person has recovered from his mental disease or defect to such an extent that his release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person's counsel and to the prosecuting attorney. The court shall order the discharge of the person, or on motion of the prosecuting attorney or on its own motion, shall hold a hearing, conducted pursuant to the provisions of § 23A-46-3, to determine whether or not he should be released. If, after the hearing, the court finds by a preponderance of the evidence that the person has recovered from his mental disease or defect to the extent that:

(1)    His release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or

(2)    His conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall:

(a)    Order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the director of the facility in which he is committed and that has been found by the court to be appropriate; and

(b)    Order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment. The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.

Source: SL 1985, ch 192, § 27.

23A-46-12. Failure to comply with regimen--Notice--Arrest--Court determination.

The director of the medical facility responsible for administering the regimen imposed on a person conditionally discharged under § 23A-46-11 shall notify the prosecuting attorney and the court having jurisdiction over the person of any failure of the person to comply with the regimen. On such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with a prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.

Source: SL 1985, ch 192, § 28.

23A-46-13. Hospitalized person against whom charges dismissed--Notice of risk--Civil proceedings.

If the administrator of the facility in which a person is hospitalized pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, certifies that the person, against whom all charges have been dismissed for reasons not related to the mental condition of the person, is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the administrator shall refer the matter to the prosecuting attorney for proceedings for civil commitment.

Source: SL 1985, ch 192, § 29.